Opinion
DOCKET NO. A-4353-10T3
02-28-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN MILLER, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the briefs). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, 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NOT FOR PUBLICATION WITHOUT THE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 Messano and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Accusation Nos. 07-03-0395 and 08-04-0738.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the briefs).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, a non-citizen from Jamaica, appeals from an order denying post-conviction relief (PCR) in connection with his March 2, 2007 guilty plea to third-degree theft, N.J.S.A. 2C:20-2b(2)(d), and his April 4, 2008 guilty pleas to third- degree resisting arrest, N.J.S.A. 2C:29-2a(3), and a violation of probation imposed on the theft conviction. He alleges that each of his two attorneys affirmatively misinformed him that "pleading guilty would not affect [his] immigration status." We reverse and remand for an evidentiary hearing.
I.
We discern the following facts from the record. Defendant was born in Jamaica in July 1978, and moved to the United States when he was twenty-three. He was a non-citizen when he entered his guilty pleas.
Defendant was arrested on January 23, 2007, and charged in a March 2, 2007 accusation with first-degree robbery, N.J.S.A. 2C:15-1, second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Pursuant to his plea agreement, which called for a sentence of probation conditioned on time served, defendant pleaded to an amended charge of theft.
Since his plea, unlawful possession has become a second-degree crime. L. 2009, c. 13, § 1.
On his plea form, defendant answered "yes" to Question Seventeen, which asked, "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." In defendant's plea hearing, defendant affirmed he "had sufficient time to review the plea form" and there was not "anything contained in this plea form [he] did not understand or have any questions about[.]" The court did not highlight or address defendant's positive answer to Question Seventeen, or the subject of immigration consequences. Defendant affirmed that "all [his] questions [were] answered concerning the plea form," and he asserted no promises were made to him other than those discussed in court.
Defense counsel referred obliquely to an out-of-court conversation involving himself, defendant, and defendant's wife. He stated, "I did have a conversation with Mr. Miller and his wife. We went over the forms and there were some issues that we went over and we went through them and he has a complete understanding and his wife was there with us to know what is going on here."
The court sentenced defendant on April 20, 2007 to two years of probation, in accord with the plea agreement. At the sentencing hearing, there was no discussion of defendant's immigration status.
Defendant was arrested again on January 24, 2008, arising out of an altercation at probation department offices. Defendant was charged in a March 3, 2008 accusation with second- degree disarming an officer, N.J.S.A. 2C:12-11, third-degree resisting arrest by force, N.J.S.A. 2C:29-2(a), and two counts of third-degree aggravated assault consisting of simple assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5). The plea agreement called for defendant to plead to the resisting arrest charge and receive probation conditioned on up to 364 days of incarceration, to run concurrent to a resentence, after violating probation, on the 2007 theft conviction.
Defendant was represented by different counsel in 2008 and appeared before a different judge. In contrast to the year before, defendant responded "N/A" on his 2008 plea form, in response to Question Seventeen pertaining to immigration consequences. In his plea hearing, he affirmed he had "an opportunity to review" the plea form, and his attorney "answer[ed] any questions [he] may have had about the information contained in it." He also asserted no promises were made to him other than those discussed in court. He provided a factual basis for the resisting arrest charge and for a violation of probation.
The court imposed a sentence more lenient than called for in the plea agreement: non-custodial probation on the resisting arrest; and termination of probation without improvement on the 2007 probation sentence. At the sentencing hearing, defendant also entered a plea to a separate disorderly persons offense arising out of a March 10, 2008 arrest for marijuana-related charges. He received a concurrent, non-custodial probationary sentence for that offense.
Defendant filed his pro se petition for PCR dated February 19, 2010, which on its face applied only to his 2007 conviction. However, he also filed two certifications, one expressly addressing the 2007 conviction, and another addressing the 2008 one. In his verified petition, which we quote verbatim, he asserted:
Petitioner was not aware by entering this guilty plead I would be subject to a mandatory deportation from the United State of America, Otherwise I would not entered a guilty plead. Therefore My guilty plead was not voluntarily, knowing and intelligent under current immigration federal laws any conviction of Aggravated felony are deportable. Petitioners seeking relief to have my conviction vacated.
In his two additional certifications, he alleged in connection with each plea, "My attorney also told me that pleading guilty would not affect my immigration status." Regarding the conversation that defense counsel apparently referenced during the 2007 plea hearing, defendant asserted his attorney did not investigate his case, and pressured him to plead guilty, even though he believed defendant was innocent. He claimed his 2008 attorney pressured him as well.
On October 8, 2011, the judge who accepted defendant's 2007 plea conducted a non-evidentiary hearing on defendant's PCR petition. Defendant's counsel reported to the court that defendant was in the midst of deportation proceedings. She focused on the prior attorneys' failure to advise defendant of the immigration consequences of his pleas, as opposed to defendant's claim that the prior attorneys affirmatively misinformed him there would be no consequences.
Counsel also stated in oral argument that defendant's "presentence report also indicated that [defendant] had naturalization papers, which were stolen when his residence was burglarized, and he was of Jamaican citizenship." She did not clarify whether it was the 2007 or 2008 report; neither is before us. Yet, even if defendant made such a statement to his PSR preparer, it is unclear whether, by "naturalization papers," defendant was referring to an application for naturalization, or whether defendant believed — erroneously, given his detention by immigration officials — he had obtained status as a naturalized citizen.
The court denied the petition in an oral decision on October 8, 2011. The court reviewed the facts of the two plea hearings, noting that defendant answered Question Seventeen in the affirmative in 2007, and "N/A" in 2008. The court held that defendant, with regard to the 2007 plea, "indicated he reviewed, in totality, the plea papers and understood them."
The court applied the well-settled two-prong test for determining whether defendant was entitled to PCR. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).
In assessing whether trial counsel was ineffective, the judge also applied the standard set forth in Padilla v. Kentucky, 559 U.S. _____, _____ 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 296 (2010), that an attorney has a professional duty to inform a non-citizen client when removal is not merely possible, but certain. The judge did not have the benefit of our Supreme Court's decision in State v. Gaitan, 209 N.J. 339 (2012), declining to give retroactive effect to Padilla, nor the decision of the United States Supreme Court in Chaidez v. United States, ______ U.S. _____, _____ S. Ct. _____, _____ L. Ed. 2d _____ (2013), reaching the same conclusion.
The judge's finding with regard to the first prong is unclear. At one point, the judge stated it was "likely" that defendant had established ineffective assistance under Padilla "at least" regarding the 2008 plea, but later, the judge appeared to find to the contrary, although it is unclear whether the judge had in mind both pleas. The court initially stated:
Now, the reasonableness of counsel's representation, under the first prong of Strickland, is determined by prevailing professional norms within the legal community.However, the court later stated:
In the recent case of Padilla v. Kentucky, the U.S. Supreme Court recognized, "The weight of prevailing professional norm supports the view that counsel must advise their client regarding the risk of deportation."
Mr. Miller argues that neither [2007 defense counsel], nor [2008 defense counsel] advised him that entering a plea of guilty would possibly affect his immigration status.
The Court finds that, although counsel did not affirmatively tell Mr. Miller, at least in the instance involving the plea on . . . April 4th, wherein the plea form, on line 17, indicated "N/A," or not applicable, based upon that, it is likely, pursuant to the first prong of Strickland, that this prong has been met.
The U.S. Supreme Court expressed concerns about attorneys' silence regarding
the issue of immigration, and stated that it is quintessentially the duty of counsel to provide their client with available advice about the issue of deportation. The Court, therefore, stated that its decision was not limited to affirmative advice, but it also applied to counsel who failed to raise the issue with clients facing guilty pleas.
[(Emphasis added).]
The defendant has clearly established only one possible error at his plea hearing, wherein that the plea form was marked "N/A" to question 17.
The Court finds that, in its totality, Mr. Miller was adequately advised with regard to his plea form and the implications of his plea on his immigration status.
The court concluded more clearly that defendant had failed to establish prejudice.
Based upon what I read, and the supporting papers, Mr. Miller has provided no evidence, other than his assertion that he would not have pled guilty if his attorneys had advised him of possible immigration consequences of a guilty plea.
He has not provided any statements or any evidence or any indication that he did not understand the plea form.
Mr. Miller had been living in the United States for approximately five years when his guilty pleas were taken.
Absent the establishment of such evidence that he would not have taken his guilty plea, just based upon his assertions, the Court finds that Mr. Miller's mere
statements are insufficient to establish a reasonable probability that he would not have pled guilty but for counsel's errors.
Defendant appeals and presents the following points for our consideration:
POINT ONE
THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Defendant was Misinformed Regarding the Impact of his Guilty Plea Upon his Immigration Status.
B. Even if the Court Were to Find That Defendant Failed to Establish That Trial Counsel Misinformed him Regarding the Impact of his Guilty Plea Upon his Immigration Status, Defendant is Entitled to Relief Under Padilla v. Kentucky, 130 S. Ct. 1473; 176 L. Ed. 2d 284 (2010).
POINT TWO
THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.
II.
We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421. The trial court's credibility determinations, to which we normally defer, are not implicated. Ibid.
To establish a prima facie claim of ineffective assistance of counsel, a petitioner must satisfy the two-prong test under Strickland, supra, which we have already identified. Regarding the prejudice prong in a challenge to a conviction arising from a guilty plea, a defendant must show "a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial." Gaitan, supra, 209 N.J. at 351 (citation and quotation omitted). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
While a petitioner is obliged to establish the right to relief by a preponderance of the credible evidence, State v. Preciose, 129 N.J. 451, 459 (1992), the court must consider the petitioner's "contentions indulgently and view the facts asserted by him in the light most favorable to him [or her]." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A hearing should be held if the PCR petition involves genuine issues of material fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). On the other hand, a court need not hold a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or . . . the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J. 89, 158 (citation omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); see also Cummings, supra, 321 N.J. Super. at 170 ("[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel.").
Our Supreme Court has addressed the standard of performance an attorney owes a client whose conviction may affect his or her immigration status. Gaitan, supra, 209 N.J. at 349-74. As we have noted, the Court declined to give retroactive effect to the dictate in Padilla, supra, 559 U.S. at _____, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296, that "an attorney must tell a client when removal is mandatory — when consequences are certain[.]" Gaitan, supra, 209 N.J. at 379. Our Supreme Court held that Padilla established "a new rule of law[.]" Id. at 373. Pre-Padilla, defense counsel was required to avoid affirmatively misinforming his client about the immigration consequences of his plea; he was also required not to compound the error by providing inaccurate and misleading information. See ibid. The Court in State v. Nuñez-Valdéz, 200 N.J. 129, 140-42 (2009), held that providing such misinformation and misleading information was ineffective assistance. The Court in Gaitan, supra, held that Nuñez-Valdéz did not announce a new rule of law and thus, it applied retroactively, 209 N.J. at 373-74.
Recently, the United States Supreme Court in Chaidez, supra, explained that Padilla announced a new rule of law by establishing that the Sixth Amendment right to counsel includes the right to advice regarding a collateral consequence of conviction — the impact of the conviction on a defendant's immigration status. Before Padilla, a lawyer was not required to provide advice about collateral consequences, notwithstanding that a "reasonably competent lawyer will tell a non-citizen client about a guilty plea's deportation consequences[.]" Id. at _____, _____ S. Ct. at _____, _____ L. Ed. 2d at _____, (slip op. at 26). The Court recognized that pre-Padilla, some jurisdictions — like our State in Nuñez-Valdéz, supra, although the Court does not cite it — "held . . . that misstatements about deportation could support an ineffective assistance claim." Id. at _____, _____ S. Ct. at _____, _____ L. Ed. 2d at _____, (slip op. at 25). However, the obligation to avoid misstatements or misleading advice was consistent with the view that pre-Padilla, attorneys were not obliged to provide affirmative advice about the collateral consequences of a conviction affecting immigration. Id. at _____, _____ S. Ct. at _____, _____ L. Ed. 2d at _____, (slip op. at 25-26).
A review of the facts in Gaitan and its companion case, State v. Goulbourne, is instructive in assessing what constitutes ineffective assistance under the standard of performance enunciated in Nuñez-Valdéz, but not Padilla. The Court held that Gaitan's attorney did not provide ineffective assistance of counsel. Id. at 376. Gaitan was alerted to potential immigration consequences through the plea form, and counsel did not affirmatively provide false information. Id. at 374. "Gaitan, at a minimum, was put on notice of the issue of potential immigration consequences through the plea form, which distinguishes this matter from Nuñez-Valdéz, where the defendant received false and affirmatively misleading information." Id. at 374. The Court noted there was no evidence Gaitan sought additional information about immigration consequences. Id. at 375. The Court concluded, "Because Gaitan neither received affirmative misadvice, nor provided any support for his bald assertion that he would not have pled had he known of the deportation consequences, he is not entitled to an evidentiary hearing." Id. at 376.
In Goulbourne, the trial court expressly advised the defendant, "by reason of this conviction, you could be deported," but indicated "[i]t would be up to Immigration." Id. at 377. Counsel conceded he did not practice immigration law; added that deportation was "not guaranteed because we don't know;" but then stated, "they have the right to deport you, and they may very well do that[.]" Id. at 378. The Court found Goulbourne had received effective assistance. Id. at 379. "Here, defendant did not receive wrong advice under existing law at the time. The immigration consequences were emphasized as real and beyond the control of the criminal justice system[.]" Ibid. The Court also found no prejudice in Goulbourne's case because the record reflected that his attention was focused on the length of his incarceration, and immigration consequences were apparently not a concern. Id. at 378-79.
Applying these principles, we are persuaded that an evidentiary hearing is appropriate to test defendant's assertions of ineffective assistance of counsel and resulting prejudice as it pertains to his 2008 plea. That hearing will necessarily implicate what defense counsel told defendant in 2007. Consequently, we direct that the hearing address the petition for relief from both convictions.
For the purposes of our review, we accept defendant's assertion that his 2008 counsel not only failed to discuss defendant's immigration status before entering the plea, but affirmatively misinformed him that the plea would have no impact on his immigration status. Given defendant's non-citizen status, the erroneous "not applicable" response to Question Seventeen constituted evidence of affirmative misadvice on the subject of immigration consequences. See State v. Garcia, 320 N.J. Super. 332, 340 (App. Div. 1999) ("not applicable" response on plea form constituted prima facie evidence of misinformation that misled defendant about possible deportation consequences, warranting evidentiary hearing); State v. Vieira, 334 N.J. Super. 681, 688 (Law Div. 2000) (counsel's performance was deficient where counsel circled "N/A" on plea form without reviewing form with defendant, a resident alien, who disclosed difficulty reading and writing English).
We find no cognizable evidence to support the State's suggestion that "defendant could have told counsel he was a citizen[.]" We acknowledge the references to a purported statement in defendant's pre-sentence report (PSR), that naturalization papers were stolen. However, we have not been presented with the PSR, nor any confirmation of what defendant actually said. Perhaps, he believed he was a citizen, and misinformed his attorney. Or, perhaps, he was only applying for citizenship, which might have heightened concern about the immigration consequences of his convictions.
--------
Nor can we find, on this record, that defendant's response to Question Seventeen on his 2007 plea form disproves his claim. The discrepancy between the two responses creates a genuine issue of fact — was defendant aware he faced immigration consequences or not? While defendant's 2007 response may belie his claim of misinformation in 2008, particularly given his affirmation in 2007 that he had reviewed his plea form and had no questions about it, one may plausibly posit that the 2008 "N/A" response demonstrates defendant was misinformed in 2007, notwithstanding his plea form response.
In contrast to Gaitan, who correctly answered Question Seventeen, defendant incorrectly answered Question Seventeen in 2008. Also, unlike Goulbourne, defendant was not advised on the record that he faced potential immigration consequences of his plea. Thus, unlike Gaitan and Goulbourne, defendant's claim of misinformation is more than a bald assertion.
Finally, there is sufficient evidence in the record to establish a prima facie claim of prejudice. Defendant must show as a result of the alleged ineffective assistance of counsel, he "would not have pled guilty and would have insisted on going to trial." Nuñez-Valdéz, supra, 200 N.J. at 139 (citation and quotation omitted). Although the trial court found insufficient corroboration of defendant's claim, the court overlooked circumstantial evidence that defendant would view deportation as such a substantial consequence that he would accept the risk of a trial, in return for the prospect of acquittal and the ability to remain in the United States.
For instance, in 2007, defendant had no prior convictions. While the accusation charged defendant with first and second degree offenses, we may presume there were some weaknesses in the State's case to justify a plea to third-degree theft and non-custodial probation. Even if defendant proceeded to trial and had been unsuccessful, if convicted only of a third-degree offense, he may well have received a non-custodial sentence, given the presumption of non-incarceration. See N.J.S.A. 2C:44-1(e). While we conclude defendant established a prima facie case of prejudice, we emphasize that we reach no conclusion as to the merits of defendant's prejudice claim, which must be determined only after it is subjected to the scrutiny of an evidentiary hearing.
Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION