Opinion
DOCKET NO. A-1621-11T3
03-11-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DERRICK MORRIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, 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NOT FOR PUBLICATION WITHOUT THE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, Bergen County, Indictment No. 03-09-1746.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, a non-citizen from Jamaica, appeals from the trial court's May 17, 2011 order, after a non-testimonial hearing, denying post-conviction relief (PCR) in connection with his August 2, 2004 guilty plea to fourth-degree contempt, N.J.S.A. 2C:29-9b. He argues that his trial attorney was ineffective by affirmatively misadvising him about the potential immigration consequences of his plea. We reverse and remand for an evidentiary hearing.
I.
We discern the following facts from the record. Defendant was born in Jamaica in August 1971, and moved to the United States when he was nine years old. He has been a permanent resident ever since.
His elderly, but ailing parents, his twelve-year old child, his two sisters, and his fiance, are all United States citizens. He has no family in Jamaica. A 1998 graduate of Fordham University, defendant worked as a mortgage broker before his detention by federal immigration officials.
Defendant was charged in a September 16, 2003 indictment with two counts of fourth-degree criminal trespass, N.J.S.A. 2C:18-3a, in connection with incidents on March 18, and 31, 2003; and one count of fourth-degree contempt of a domestic violence restraining order, N.J.S.A. 2C:29-9(b), arising out of the March 31, 2003 incident. The August 2, 2004 plea agreement did not specify an agreed term of incarceration, but provided that any sentence would be served concurrent with eleven months remaining on a term defendant was serving in federal custody.
Although the record does not include the federal judgment of conviction, defense counsel stated at sentencing on the New Jersey indictment that defendant was convicted of "misappropriation of bank funds."
On his plea form, "N/A" was marked in response 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 his plea hearing, defendant affirmed he had read the plea form, his attorney explained it to him, and defense counsel "went over all the questions[.]" Neither counsel nor the court addressed the subject of immigration consequences.
Despite his answers on the record, defendant asserts his counsel never reviewed the response to question seventeen, nor discussed the subject of immigration consequences. In his initial certification in support of his petition, he alleged:
5. My plea form was pre filled out and I signed my name and accepted the charges.In a supplemental certification, defendant claimed,
6. My attorney advised me on how to answer the questions asked of me by the Court.
7. Question number 17 on the plea form was not discussed at the hearing or any other time.
8. I was not advised about any Immigration consequences as a result of my plea.
[Defense counsel] filled out the plea form and had me sign it. When he put through my guilty plea, he did not discuss the immigration/citizenship question with me and he did not advise the Court of it either. He also marked the immigration/citizen question on the plea form as "not applicable."
Notwithstanding his certified statements that his attorney did not discuss immigration consequences, defendant argued in his pro se brief to the trial court that counsel affirmatively misinformed defendant. He wrote, "[Counsel] made the egregious error of advising [defendant] that his criminal proceedings had no bearing on his Lawful Permanent Resident status in the United States."
Defendant returned to court September 10, 2004 for sentencing. There was no discussion of defendant's immigration status. Although the pre-sentence report (PSR) is not in the record before us, defendant asserts the PSR noted defendant was born in Jamaica. However, as counsel discussed later in argument on the PCR, the PSR also apparently reported, in the uniform defendant intake (UDI) section, that defendant said he had become a United States citizen between 1998 and 1999. Defense counsel at sentencing stated the PSR "seems to be fairly straightforward and to be correct." Defendant himself did not address the PSR's accuracy, nor did he acknowledge having received and read the PSR.
Defendant had apparently been transported to New Jersey for sentencing from a federal correctional facility in Brooklyn.
The prosecutor stated that the plea agreement called for a sentence of between nine and eighteen months. Defense counsel urged the court to impose a nine month concurrent term. The court reviewed defendant's prior record, stating, "I don't know if it's all with the same lady, but there was a Fort Lee harassment in 2002, a simple assault in Garfield which was dismissed, stalking, contempt of court, July of 2002, downgraded. Then the embezzlement in New York and this contempt of court[.]" The court noted that there remained separate pending charges of eluding and aggravated assault, which defense counsel stated arose out of the same domestic relationship involved in the contempt conviction. The court sentenced defendant to nine months, with jail credit of fifty days, concurrent to the federal sentence on which nine months remained.
On November 18, 2004, defendant entered a guilty plea to a second-degree charge of eluding, N.J.S.A. 2C:29-2b. He was sentenced on December 23, 2004 to a flat six-year term, to run concurrent with his federal sentence and his contempt sentence. We have only the judgment of conviction in that case, and defendant does not seek PCR from that conviction in the present appeal.
Defendant filed his pro se petition for PCR from the domestic violence contempt conviction dated November 24, 2010. We have already summarized defendant's allegations regarding his attorney's failure to inform, or his misinformation, about the immigration consequences of defendant's plea. Defendant alleged, "If I was adequately advised of the immigration consequences, I would not have plead[ed] guilty."
On May 17, 2011, the court heard oral argument on the petition. Apparently, the State had highlighted in its opposition brief that defendant had asserted, in his PSR interview, that he had become a citizen between 1998 and 1999. Defense counsel argued the PSR was erroneous and created a fact issue that should be resolved in an evidentiary hearing. The prosecutor responded that defense counsel accepted the PSR as accurate in the sentencing hearing.
The court denied the petition in an oral decision. The court noted that the box on defendant's UDI was checked indicating United States citizenship, but the court declined to resolve whether defendant had actually reported he was a citizen to the PSR preparer. The court observed defendant was well-educated and articulate, and concluded he was aware of, and understood the response to question seventeen. The court found defendant failed to demonstrate a prima facie case of ineffective assistance, or prejudice.
There's nothing in this case, although a blatant assertion, by a defendant who's already been around the horn once, through the federal system, who circles an answer, not applicable, or who acknowledges that it was circled and that he has no questions of the Judge or of his attorney or anybody else, for that matter. And then makes a statement to the Court about how he wants to get his life in order because this is a good deal for him. It's going to run concurrent.
So, very frankly, even if . . . I were to find that there was ineffective assistance, very frankly, it wouldn't change a thing. Because, in my mind, this is what the defendant wanted. He wanted the sentence that enveloped itself within the federal sentence, so he didn't have to do anymore time. Let alone that he was still facing indictable charges, at that time, that were not indicted, regarding [eluding][.]
There's absolutely no prima facia showing of ineffective assistance on behalf of [trial counsel].
And, very frankly, I make this decision without reference to anything that was in the presentence report. I can consider what's in there, just as I can consider it as a Judge does on the day of sentence. But, very frankly, whether he's said that or not, makes absolutely no difference.
Defendant appeals and argues, "DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL."
II.
We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). 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. See ibid.
To establish a prima facie claim of ineffective assistance of counsel, a petitioner must satisfy the two-prong test under Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), that (1) 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) defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). To satisfy 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." State v. Gaitan, 209 N.J. 339, 351 (2012) (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 [or her] 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 that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J. 89, 158 (citations 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 v. United States, ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d ___ (2013), 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).
Applying the standard of performance enunciated in Nuñez-Valdéz, but refraining from retroactively applying the standard enunciated in Padilla, the Gaitan Court held that the defendant's trial attorney did not provide ineffective assistance of counsel. Id. at 376. The defendant was notified of potential immigration consequences through the plea form, which accurately alerted defendant of potential immigration consequences, and counsel did not affirmatively provide false information. Id. at 374. 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.
By contrast, the Nuñez-Valdéz defendant "received false and affirmatively misleading information." Id. at 374; see also Nuñez-Valdéz, supra, 200 N.J. at 141-42 ("[T]he trial court did not abuse its discretion in crediting defendant's account that he received misleading or false information about immigration consequences."). Although the defendant's plea form reflected correctly that he faced potential immigration consequences, the trial court found that defense counsel assured the defendant, incorrectly, that there would be no negative immigration consequences. Nuñez-Valdéz, supra, 200 N.J. at 141. The defendant was very concerned about the immigration consequences of his plea; and he would not have pleaded guilty if he were not misinformed or misled. Id. at 141-43.
In State v. Garcia, 320 N.J. Super. 332, 336 (App. Div. 1999), the defendant asserted "that his defense attorney advised him that despite his [non-citizen] status in this country he would not be subject to deportation[.]" The defendant's claim was corroborated by the plea form, which included the "N/A" response to question seventeen. Id. at 336. Defendant had been in the United States since he was a child, had changed his name from Jorge to George, and spoke with no accent — which might have led an attorney to assume the defendant was a citizen. Defense counsel had certified he usually asked his clients if they were citizens, and he was confident defendant did not confide in him that he was a illegal refugee. We held defendant had established a prima facie case of ineffective assistance warranting a hearing. See also State v. Vieira, 334 N.J. Super. 681, 688 (Law Div. 2000) (counsel's performance was deficient where defense counsel circled "N/A" on plea form without reviewing form with defendant, a resident alien, who disclosed difficulty reading and writing English). By contrast, we recently rejected an ineffective assistance argument where question seventeen was correctly answered. State v. Brewster, ___ N.J. Super. ___, ___ (App. Div. 2013) (slip op. at 12-16).
Applying these principles, we are persuaded that defendant has established a prima facie case that his attorney provided ineffective assistance by misinforming him, through the plea form, about the potential of deportation. Defendant's plea form, like the form in Garcia, inaccurately stated question seventeen did not apply to him. We recognize that defendant, unlike Garcia, did not allege, in a sworn statement, that his attorney affirmatively informed him that his plea would not affect his immigration status. Indeed, he alleged, in his certifications, there was no discussion about immigration-related issues. However, defendant stated on the record at his plea hearing that he read his form and believed it was accurate. Thus, the form itself constituted affirmative misadvice.
While defendant argued in his pro se brief that his trial attorney affirmatively reassured him that the plea would not affect his immigration status, the brief is not cognizable evidence. R. 1:6-6. Defendant's assertion also is contradicted by two certifications. In his pro se certification, defendant stated, "I was not advised about any Immigration consequences as a result of my plea," (emphasis added), and "Question number 17 on the plea form was not discussed at the hearing or any other time." In his supplemental certification, he stated, "[Defense counsel] did not discuss the immigration/citizenship question with me[.]"
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Certainly, there are facts that tend to undermine defendant's claim. If the UDI correctly reported his assertion, albeit false, that he obtained citizenship in 1998 to 1999, then defendant may also have misinformed his attorney of his status, or his attorney may have reasonably relied on the UDI, if it had been provided to him before the plea. In either case, the State may argue defense counsel was not ineffective if he relied on the UDI or defendant's own misrepresentation of his status.
Moreover, defendant's assertion that he and his attorney had no discussions about immigration may raise questions about the plausibility that defense counsel would have marked question seventeen "N/A." On the other hand, defense counsel may have simply assumed — based on defendant's educational and professional attainments — that he was a citizen. In any event, the evidence does not so one-sidedly disfavor defendant that we must conclude there is no genuine issue of fact regarding counsel's alleged ineffectiveness. See R. 3:22-10(b) (stating that upon a showing of a prima facie case, a defendant shall be entitled to an evidentiary hearing if there are "material issues of disputed fact that cannot be resolved by reference to the existing record" and the "hearing is necessary to resolve the claims for relief").
Finally, there is sufficient evidence in the record to establish a prima facie claim of prejudice, that is, as a result of the alleged ineffective assistance of counsel, defendant "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 have accepted the risk of a trial, in return for the prospect of acquittal and the ability to remain in the United States. Defendant's family and professional ties were all in the United States. He had not lived in Jamaica since he was a small boy.
Even assuming the State's case against defendant was strong, defendant conceivably could have sought to negotiate a different resolution of his case. A conviction for violating a domestic violence restraining order is a deportable event, as is a conviction for an aggravated felony. Compare 8 U.S.C.A. 1227(a)(2)(A)(iii) (stating that any alien convicted of an "aggravated felony" is deportable), with 8 U.S.C.A. 1227(a)(2)(E)(i-ii) (stating that any alien who commits an act of domestic violence or violates an order of protection is deportable). However, criminal trespass does not appear to fall into either category. Conceivably, defendant could have persuaded the State to accept a plea to criminal trespass, instead of criminal contempt, and avoided the harsh immigration consequences of his plea.
We cite this evidence only in support of our determination that a prima facie case existed. We emphasize we express no opinion on the merits of defendant's claim that he suffered prejudice as a result of the alleged ineffective assistance of counsel. We note the presence in the record of facts that tend to show the absence of prejudice, including defendant's conviction of a federal offense that may have rendered him deportable regardless of the specific terms of his plea in New Jersey.
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