Opinion
DOCKET NO. A-2206-11T2
03-15-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELIAS JUAREZ-GONZALEZ, a/k/a ELIAS JUAREZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Tracey McQuaide, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-01-0158.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Tracey McQuaide, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Elias Juarez-Gonzalez's appeal of the denial of his petition for post-conviction relief (PCR) returns following our remand. State v. Juarez-Gonzalez, No. A-2206-11 (App. Div. Jan. 17, 2013). In remanding the matter, we applied State v. Parker, 212 N.J. 269 (2012), retroactively and determined that oral argument should have been allowed, or reasons set forth for departure from the general rule of affording such argument. The PCR judge then heard oral argument and denied relief, relying on his prior written reasons. We affirm.
A transcript of this argument was not provided to us nor did either party object to the process utilized by the judge.
The facts and procedural history in this matter are summarized in our prior decision. Juarez-Gonzalez, supra, slip op. at 2-4. We incorporate that recitation by reference here. As we indicated, after being charged in Hudson County Indictment No. 01-01-0158 with second-degree sexual assault, N.J.S.A. 2C:14-2(c), defendant entered into a plea arrangement with the State whereby he entered a guilty plea to third-degree criminal restraint, N.J.S.A. 2C:13-2, and the State agreed to recommend a noncustodial sentence. More than seven and one-half years after sentencing, defendant filed a pro se PCR petition claiming that his attorney had not told him that he would be deported as a result of his guilty plea and that had he known he would be deported he would not have pled guilty.
On appeal he raised the following issues:
POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE FAILING TO AFFORD A DEFENDANT WHO IS IN JEOPARDY OF BEING DEPORTED AN OPPORTUNITY TO PRESENT ORAL ARGUMENT, IN THE ABSENCE OF A CERTIFICATION BY PCR COUNSEL WAIVING ORAL ARGUMENT, VIOLATED THE DEFENDANT'S RIGHT TO POST-CONVICTION RELIEF.
POINT II: THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF BECAUSE OF THE [FIVE] YEAR PROCEDURAL BAR SINCE THE IMPACT THAT THE VIOLATION OF DEFENDANT'S FOURTEENETH AMENDMENT DUE PROCESS RIGHT TO BE INFORMED OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA HAD ON THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM WAS SO SIGNIFICANT, IT WARRANTED RELAXATION OF R. 3:22-12 UNDER THE "INJUSTICE" CLAUSE OF R. 1:1-2.
POINT III: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTION VACATED BECAUSE TRIAL COUNSEL'S FAILURE TO ADVISE DEFENDANT OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
POINT IV: THE COURT'S RULING DENYING POST-CONVICTION [RELIEF] VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
Now that defendant has been afforded oral argument, we proceed to his other arguments and affirm substantially for the reasons expressed by the PCR judge in his written decision of May 31, 2011. We add only the following comments.
The legal principles that govern our analysis of defendant's claim that he was deprived of the effective assistance of counsel are settled. Parker, supra, 212 N.J. at 279 (2012) (citing State v. Fritz, 105 N.J. 42, 58 (1987)). To prevail on such a claim, not only must a defendant overcome a "strong presumption that [defense] counsel's conduct falls within the wide range of reasonable professional assistance[,]" Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and "that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. See also United States v. Cronic, 466 U.S. 648, 653-57, 104 S. Ct. 2039, 2043-46, 80 L. Ed. 2d 657, 664-67 (1984) (discussing the requirements of effective counsel).
A defendant claiming that his attorney was ineffective in his representation "must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" Parker, supra, 212 N.J. at 279 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). A showing that the error complained of might conceivably have had some effect on the outcome of the trial is not sufficient. "'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Hess, 207 N.J. 123, 146 (2011); State v. Winder, 200 N.J. 231, 254-55 (2009)). This two-pronged standard has been expressly adopted in New Jersey. Id. at 279 (citing Fritz, supra, 105 N.J. at 58).
Additionally, a defendant must demonstrate, in the context of a guilty plea, that he would not have pled guilty but for his counsel's defective representation. State v. Nu ñez-Valdéz, 200 N.J. 129, 139 (2009) (citing State v. DiFrisco, 137 N.J. 434, 457 (1994)).
Defendant filed his PCR petition too late to be accorded relief. R. 3:22-12(a)(1). He has not demonstrated excusable neglect or the existence of a fundamental injustice. Even if the petition were reviewed on its merits, defendant's claim that defense counsel was deficient in not informing him that he would be deported is without merit. He alleged that the guilty plea form he signed was ambiguous in stating that he "may be deported." This argument is based on the United States Supreme Court decision of Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). The Supreme Court of the United States has held that defense attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea. Id. at _, 130 S. Ct. at 1482, 176 L. Ed. 2d at 294. The Court has held that Padilla does not apply retroactively. Chaidez v. United States, _ U.S. _, _, _S. Ct. _, _, _ L. Ed. 2d _, _ (2013). Our Supreme Court has held that Padilla is a new rule to be applied prospectively only. State v. Gaitan, 209 N.J. 339, 371-72 (2012). Defendant pled guilty eight years before Padilla. Thus, we agree with the PCR judge that defendant filed his application too late. Even if considered on the merits, the petition fails. See State v. Brewster, _ N.J. Super. _ (App. Div. 2013) (finding the warning in question 17 of the plea form that the defendant may be deported sufficient notice prior to Padilla).
Defendant argues that the trial judge should have relaxed the time bar pursuant to Rule 1:1-2. Rule 1:3-4(c) prohibits relaxation of PCR timeframes except pursuant to the exceptions of excusable neglect and fundamental injustice outlined in Rule 3:22-12(a)(1). See R. 3:22-12(c).
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION