Opinion
DOCKET NO. A-3060-13T2
04-27-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MANUEL DELZO, Defendant-Appellant.
Gary T. Jodha and Edward J. Hesketh, attorneys for appellant (Mr. Hesketh, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel; Mr. Gillet and Susan Berkow, Special Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Hayden. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 93-12-2102. Gary T. Jodha and Edward J. Hesketh, attorneys for appellant (Mr. Hesketh, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel; Mr. Gillet and Susan Berkow, Special Assistant Prosecutor, on the brief). PER CURIAM
Defendant Manuel Delzo appeals from the trial court's February 6, 2014 order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR). Defendant collaterally challenges his 1994 conviction, after a guilty plea, of third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)(3). Defendant asserts his trial counsel was ineffective because she failed to advise him of the immigration consequences of his conviction. Having considered defendant's arguments in light of the record and the applicable legal principles, we affirm.
I.
In 1970, at the age of twenty three, defendant entered the United States from Peru on a tourist visa and never left. In 1978, an immigration judge ordered him deported, but the order was suspended.
On September 30, 1993, defendant was arrested, along with his brother, after an informant advised police that they were selling cocaine in two New Brunswick taverns. The evidence of defendant's guilt was substantial. Defendant possessed nine packets of cocaine and over $250 in cash on his person. A subsequent search of his home revealed more cocaine, $1668 in cash, and various packaging and preparation materials. Defendant told an officer that he had turned to selling cocaine because he had recently lost his job. The arrest report described defendant as a United States citizen, who was born in Peru. Although the record does not state the source of that misinformation, it appears likely it was defendant.
In the December 1993 indictment, defendant was charged most seriously with second-degree possession with intent to distribute. N.J.S.A. 2C:35-5(a)(1), -5(b)(2). After the court denied defendant's motion to suppress, he entered a plea of guilty in July 1994 to third-degree possession with intent to distribute, in return for a promise of probation, conditioned on up to 364 days of incarceration.
Defendant answered "N/A" to question 17 of the plea form, which asked whether he understood that if he was not a United States citizen or national he could be deported. There was no discussion of defendant's immigration status at the plea hearing or at the sentencing in November 1994. Defendant's presentence report (PSR) described him as a United States citizen who was born in Peru. Defense counsel stated she reviewed the report and had no corrections. The court sentenced defendant in accord with his plea agreement. Defendant did not file a direct appeal.
Defendant properly filed his PCR petition in July 2013, almost nineteen years after his judgment of conviction. He asserted that his attorney did not advise him of the immigration consequences of his plea. "I was unaware that by entering into a guilty plea . . . I could be subject to deportation. No one explained to me that because I was not a U.S. citizen, I would be deportable. . . ." He alleged he only learned he was deportable in 2012, when he sought advice from an attorney about seeking permanent resident status here.
In November 2012, his counsel filed a "Verified Petition for Post Conviction Relief," but it omitted defendant's verification or a certification. In June 2013, the court dismissed the petition because of that omission. Defendant refiled his petition in July 2013, accompanied by an affidavit.
After hearing oral argument, Judge Diane Pincus denied defendant's petition in a comprehensive oral opinion on February 6, 2014. She held that the petition was time-barred pursuant to Rule 3:22-12, which generally requires the filing of a petition within five years of the judgment of conviction's entry. Citing State v. Brewster, 429 N.J. Super. 387 (App. Div. 2013), she concluded that he "failed to demonstrate that enforcement of the five-year time bar would result in a fundamental injustice."
Judge Pincus also denied the petition on the merits. She applied the well-settled two-prong standard for reviewing a claim of ineffective assistance of counsel: a petitioner must show that (1) counsel's performance was objectively deficient, falling outside the wide range of reasonable professional assistance, and (2) that counsel's performance created a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 695, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).
Judge Pincus found that defendant failed to present a prima facie case of ineffective assistance of counsel. She concluded that defendant's immigration status was likely unexplored because defendant apparently misrepresented his status as a United States citizen. She noted that both the arresting officer and the preparer of his PSR identified him as a United States citizen, born in Peru. The judge concluded that defendant was likely the source of that misinformation.
Citing State v. Gaitan, 209 N.J. 339 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013), she noted that under the standard of attorney performance prevailing at the time of defendant's plea, an attorney was obliged only to avoid affirmatively misinforming a client about the immigration consequences of a plea. Defense counsel was not governed by the standard of performance enunciated in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) — which requires an attorney to initiate a discussion of immigration consequences and advise a client when he or she is subject to the certainty of deportation.
On appeal, defendant presents the following points for our review:
POINT ONE
THE FAILURE OF TRIAL COUNSEL TO ADVISE DEFENDANT THAT AS A RESULT OF HIS PLEA AGREEMENT, HE WOULD BE DEPORTED DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT TWO
THE FAILURE OF TRIAL COUNSEL AND THE TRIAL COURT TO EXPLAIN THE IMMIGRATION CONSEQUENCES OF DEFENDANT'S GUILTY PLEA CAUSED DEFENDANT TO LACK KNOWLEDGE AND UNDERSTANDING OF THE PLEA AGREEMENT, RENDERING HIS PLEA DEFECTIVE, BECAUSE HE NEVER KNOWINGLY WAIVED HIS RIGHT TO A JURY TRIAL.
POINT THREE
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
II.
Where the trial court does not conduct an evidentiary hearing on a PCR petition, we may review de novo the factual inferences the court has drawn from the documentary record. State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014). We also review de novo the court's conclusions of law. State v. Harris, 181 N.J. 391, 420 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Having done so, we affirm substantially for the reasons set forth in Judge Pincus's opinion.
It is now well-settled that a defense attorney today "must tell a client when removal is mandatory — when consequences are certain" in order to provide effective assistance of counsel. Gaitan, supra, 209 N.J. at 380. However, that standard, as set forth in Padilla, did not apply retroactively. Chaidez v. United States, 568 U.S. ___, ___, 133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149, 162 (2013). Instead, to establish ineffective assistance of counsel in the context of a guilty plea pre-Padilla, a petitioner must establish that his or her attorney affirmatively provided misadvice or misinformation about the immigration consequences of conviction. See Gaitan, supra, 209 N.J. at 351-52; State v. Nuñez-Valdéz, 200 N.J. 129, 139-40 (2009). Therefore, trial counsel's alleged failure to address the subject was not ineffective assistance. Moreover, as Judge Pincus noted, defendant apparently misrepresented that he was a citizen. He cannot blame his attorney for failing to advise him as if he were not one.
We note that in his argument before us, defendant also refers to State v. Slater, 198 N.J. 145 (2009), apparently for the proposition that defendant should be allowed to withdraw his plea. We recognize that a motion to withdraw a plea under Rule 3:21-1, and a PCR petition based on ineffective assistance of counsel, are governed by different standards. See O'Donnell, supra, 435 N.J. Super. at 368-73. However, we shall not address the merits of a plea withdrawal motion, as defendant did not present it to the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION