Opinion
DOCKET NO. A-3331-13T3
04-14-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE HERNANDEZ-TORRES, a/k/a JOSE GIOVANNI HERNANDEZ, JOSE HERNANDEZ, JOSE E. HERNANDEZ, JOSE G. HERNANDEZ, JOSE G. TORRES, JOSE G. TORREZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Currier. On appeal from the Superior Court, Law Division, Essex County, Indictment No. 09-10-2912. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jose Hernandez-Torres appeals from the October 18, 2013 order denying his petition for post-conviction relief (PCR) after an evidentiary hearing. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant pled guilty to all three counts of an indictment and was sentenced to time served on each of the counts. He filed a PCR petition pro se, and thereafter a brief was filed by assigned counsel. Defendant asserted that his trial counsel was constitutionally ineffective in his failure to properly advise him as to the consequences of his plea regarding his immigration status. His request for an evidentiary hearing was granted.
At the hearing, PCR counsel advised the judge he had spoken to defendant, who was unavailable to attend the hearing because he had been transferred to a homeland security detention center in Alabama pursuant to an Immigration and Customs Enforcement (ICE) detainer. Counsel filed a certification that defendant had waived his appearance at the hearing. See R. 3:22-10.
Trial counsel for defendant testified that he had been an attorney for thirty-two years and had discussed plea offers with three to four thousand defendants during that time. After confirming he had an independent recollection of his representation of defendant, counsel stated he had gone over the charges, the plea and the sentence with him and also discussed the consequences that a guilty plea might have on defendant's immigration status. He recalled reviewing the plea form with defendant and the specific questions addressing his citizenship. When asked about Question 17b: "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?" trial counsel testified that he informed defendant that "in fact [since] he was pleading guilty to a second degree crime he would be deported." Counsel also stated that at the time of the plea he and defendant were aware that an ICE detainer had already been placed on defendant.
At the conclusion of the hearing, the judge found it "clear from [counsel's] testimony that [defendant] was completely apprised of his situation vis-à-vis deportation, that he would be deported whether he went to trial and was convicted or whether he [pleaded guilty] and was convicted." He also noted that a review of the plea transcript revealed that he had informed defendant himself "in no uncertain terms" that he would be deported as a result of his plea. The petition for PCR was denied in a written decision and order of October 18, 2013.
The same judge presided over the plea hearing, sentencing and PCR petition proceedings. --------
On appeal, defendant raises the following issues:
POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF FOLLOWING THE EVIDENTIARY HEARING SINCE THE DEFENDANT FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL REGARDING THE DEPORTATION CONSEQUENCES ARISING OUT OF HIS GUILTY PLEA, RESULTING IN A GUILTY PLEA WHICH HAD NOT BEEN FREELY, KNOWINGLY AND VOLUNTARILY ENTERED.We find both arguments to be without merit.
POINT II: IN THE EVENT THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF IS NOT GRANTED ON ITS SUBSTANTIVE MERITS, THE DEFENDANT IS ENTITLED TO A REMAND TO AFFORD HIM AN OPPORTUNITY TO TESTIFY AT THE EVIDENTIARY HEARING, EITHER IN PERSON OR THROUGH ELECTRONIC OR TELEPHONIC MEANS.
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); State v. Preciose, 129 N.J. 451, 460 (1992). In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
We note that at the time of the plea hearing, the prosecutor advised the judge in the presence of defendant and his counsel that "[T]here's no plea agreement. It's my understanding defendant's going to plead to the indictment. The State's recommendation, based on his plea, is a five-year New Jersey State Prison sentence. My understanding from speaking to ICE is that [defendant] will be deported 45 days after the time of sentencing." The judge responded: "Given that fact that he's going to be deported anyway, I agree to give him a time served sentence. Is that the plea agreement?" Therefore, prior to his entering a plea, defendant was aware of the ICE detainer and imminent deportation.
At his sentencing, defendant was asked if he had discussed his immigration situation with his attorney prior to his plea hearing to which he responded yes. The following colloquy then took place:
THE COURT: And you understand that by pleading guilty to the offense that you've pled guilty to, you're going to be deported. You understand that?
DEFENDANT: I don't know.
THE COURT: You don't know?
DEFENDANT: Well, I got immigration hold. I am a U.S. resident.
THE COURT: You're a U.S. resident alien.
DEFENDANT: Yes.
THE COURT: But because you pled guilty to the type of crimes you pled guilty to, it is very likely, if not certain . . . that you will be deported.
DEFENDANT: Okay.
THE COURT: Do you understand that?
DEFENDANT: I understand.
It is clear that defendant was aware at the outset of the plea hearing that he would be deported forty-five days from the date of sentencing. At sentencing, the judge again directly addressed the immigration consequences with him. We find the judge did not err when he found that defendant had "not made any credible or substantiated claims that plea counsel misinformed him of the deportation consequences." See Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010) (holding that counsel renders ineffective assistance if he fails to advise defendant about potential immigration consequences, including the risk of removal, arising from a guilty plea).
Given our conclusion that the judge did not err in denying defendant's PCR application, we do not find it necessary to address his argument that the matter should be remanded to allow him the opportunity to testify. The judge found defendant to be well-apprised of his immigration situation prior to the plea hearing, at sentencing and following the testimony of trial counsel at the PCR evidentiary hearing. The judge considered defendant's certification in support of his PCR petition and found him not to be credible. His live testimony would not further any purpose.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION