Opinion
DOCKET NO. A-2829-14T4
04-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BERTHA ENRIQUEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-04-0035. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Robert Lougy, Acting Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief). PER CURIAM
Defendant Bertha Enriquez, a citizen and native of Peru, appeals from a December 4, 2014 order denying her petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
In September 2007, defendant pled guilty to second-degree theft of lottery tickets worth more than $75,000, N.J.S.A. 2C:20-3(a), -2(b)(1)(a). As part of the plea agreement, the State recommended that defendant be sentenced in the range for a third-degree crime to three years of incarceration. In January 2008, defendant was sentenced to three years in prison consistent with the plea agreement.
On March 4, 2008, less than two months after she was sentenced, defendant received notification from the United States Department of Homeland Security that removal proceedings, pursuant to 8 U.S.C.A. § 1229a, were being instituted against her based on her theft conviction. Defendant did not file a direct appeal.
On May 30, 2013, more than five years after her conviction and more than five years after receiving notice that she would be deported, defendant filed a PCR petition. In her certification in support of her petition, defendant stated: "I was led to believe that the guilty plea would not have an effect on my immigration status."
The PCR judge found that the petition was time-barred. He found no justification for excusing the delay. He also reviewed the merits, finding defendant did not establish a prima facie case of ineffective assistance of counsel.
Defendant raises the following issues on appeal:
POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND DEFENDANT'S GUILTY PLEA VACATED BECAUSE, UNDER THE CONSTITUTIONAL STANDARDS THAT EXISTED AT THE TIME OF THE PLEA, TRIAL COUNSEL'S FAILURE TO ADVISE DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HER GUILTY PLEA WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II: THE PCR COURT'S RULINGS VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT III: THE PCR COURT MISAPPLIED ITS DISCRETION IN APPLYING RULE 3:22-12 BECAUSE THE SIGNIFICANCE OF THE ISSUES RAISED, AND THEIR IMPACT ON THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM, WARRANTED RELAXATION OF THE 5 YEAR TIME BAR.
We first review the well-established principles guiding our PCR review. Defendant's petition arises from the application of Rule 3:22-2, which permits collateral attack of a conviction based upon a claim of ineffective assistance of counsel within five years of the conviction. See R. 3:22-2(a); R. 3:22-12(a)(1); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-part Strickland test: (1) "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and (2) "the deficient performance [truly] prejudiced the defense." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693 (quoting U.S. Const. amend. VI); Fritz, supra, 105 N.J. at 58 (adopting the Strickland two-part test in New Jersey).
There is a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. We must therefore engage in a "highly deferential" scrutiny of trial counsel with an eye to "avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Arthur, 184 N.J. 307, 318-19 (2005) (quoting State v. Norman, 151 N.J. 5, 37 (1997)).
A PCR judge should only grant an evidentiary hearing "if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie case, a defendant must demonstrate "the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington." Id. at 463. A defendant "must do more than make bald assertions that he [or she] was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "He [or she] must allege [specific] facts sufficient to demonstrate counsel's alleged substandard performance." Ibid.
In cases brought by a defendant who has entered a guilty plea, the defendant satisfies the first prong if he or she shows that counsel's representation fell short of the prevailing norms of the legal community. Padilla v. Kentucky, 559 U.S. 356, 366-67, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). The defendant proves the second component of Strickland by establishing a reasonable probability that the defendant "would not have pled guilty," but for the counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Defendant filed her petition past the five-year cut-off, R. 3:22-12(a)(1), without alleging any excusable neglect, and cannot establish either Strickland prong.
Defendant complains that she was not adequately warned about deportation. In Padilla, the United States Supreme Court held that attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea. Padilla, supra, 559 U.S. at 373-74, 130 S. Ct. at 1486, 176 L. Ed. 2d at 298-99. Defendant pled guilty years before Padilla. Our Supreme Court has held that Padilla is a new rule applied only prospectively. Gaitan, supra, 209 N.J. at 380. Therefore, pursuant to current state law, a pre-Padilla guilty plea "is not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Id. at 361.
A limited exception to this rule arises when the facts show that the plea attorney materially misled the defendant. See Nuñez-Valdéz, supra, 200 N.J. at 139-42 (discussing factual circumstances where an attorney told the "defendant that there would be no immigration consequences"). That exception is inapplicable here. Defendant's complaint is not that her plea attorney gave her materially erroneous advice, but rather that she was "led to believe" by unspecified sources that she would not be deported. PCR counsel argued, without evidentiary support, that plea counsel "never informed the Defendant that she could be deported."
Indeed, the record shows that defendant was informed by the guilty plea form she completed that she could be deported as a result of her guilty plea. To the question, "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" The answer "YES" is circled. The page is signed by defendant. Thus, she presents no prima facie claim of ineffective assistance of plea counsel in her untimely PCR petition.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION