Opinion
DOCKET NO. A-1601-13T1
04-25-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DIEGO NUNEZ-DELACRUZ, Defendant-Appellant.
Samuel R. Bloom argued the cause for appellant (Alan Dexter Bowman, attorney; Mr. Bloom, on the brief). Ryan M. Galler, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Mr. Galler, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 00-05-0913. Samuel R. Bloom argued the cause for appellant (Alan Dexter Bowman, attorney; Mr. Bloom, on the brief). Ryan M. Galler, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Mr. Galler, on the brief). PER CURIAM
Defendant Diego Nunez-DeLaCruz appeals a Law Division judge's denial of his petition for post-conviction relief (PCR) and motion to withdraw a guilty plea. Having reviewed the record in light of applicable law, we affirm.
I.
Defendant was born in the Dominican Republic in 1968. He attended school until the third grade, but never learned English. In 1988, he immigrated to the United States. While living in the United States, he met Carmen Aguiar, who would later become his wife, and had two children with her. He also has four additional children with other women. All six of his children live in the United States, and all but one of them were born in the United States. According to defendant, he never spoke English either at work or at home.
Between December 1999 and January 2000, police observed defendant making cocaine deliveries using his wife's car. During that time, he made seven cocaine deliveries to confidential informants and undercover investigators in police-initiated controlled purchases. He was finally arrested on January 24, 2000, while making a cocaine delivery in Jersey City.
On May 22, 2000, defendant was charged with distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35a(1) and 2C:35-5b(3); distribution of CDS within 1000 feet of a school, N.J.S.A. 2C:35-5a(1) and 2C:35-7; possession of CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2); and possession of CDS with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-5a(1) and 2C:35-7.
Eventually, a plea agreement was negotiated, under which defendant would cooperate with police and plead guilty to possession of CDS with intent to distribute within 1000 feet of a school zone. In exchange, the State would recommend a noncustodial sentence and dismiss the other charges.
During the plea process, defendant retained the services of a law firm. According to defendant, his retained counsel told him that deportation was not a realistic threat in this case, and advised him to take the plea.
At the January 3, 2001, plea hearing, the court asked defendant "do you speak and understand English, Mr. Nunez-[DeLaCruz]?" Defendant responded, "Yeah, a little bit." The court then engaged in an extended colloquy with defendant. No request was made for a translator, nor was one appointed. According to defendant, his retained counsel advised him to "just say 'yes'" to any questions he did not understand. The court accepted plaintiff's negotiated guilty plea, and the other charges were subsequently dismissed.
On March 7, 2001, defendant was sentenced to two years of probation, twenty-five hours of community service, a six month driver's license suspension, a $1,000 drug deterrence penalty, forfeiture of $382, and $130 dollars in fees and assessments.
Subsequently in 2011, defendant was arrested by Immigration and Customs Enforcement (ICE) officers at Newark Liberty International Airport, and deported.
On November 21, 2012, defendant filed a PCR petition and motion to vacate his guilty plea. The PCR petition argued the plea should be set aside because: (1) it is manifestly unjust; (2) defendant's counsel rendered ineffective assistance by: (a) misinforming defendant of the deportation consequences of a guilty plea, (b) failing to counsel defendant to apply for pre-trial intervention (PTI), (c) failing to pursue available defenses, (d) stipulating to facts without a signed stipulation from defendant, and (e) failing to file a motion to suppress; (3) the court erred by failing to provide an interpreter; and (4) the court erred by failing to establish a factual basis for the plea.
The PCR judge denied most of defendant's ineffective assistance claims without an evidentiary hearing. However, he granted an evidentiary hearing on the issue of whether defendant was prevented from understanding the consequences of his guilty plea, either by the absence of an interpreter or by misinformation from his attorney.
The evidentiary hearing was held over four days in 2013. On September 6, 2013, the PCR judge issued a written order and opinion denying defendant's PCR petition. Defendant challenges the denial of his PCR petition and motion to vacate the guilty plea.
On appeal, defendant presents the following point headings for our consideration:
POINT I
THE TRIAL COURT ERRED IN NOT INQUIRING AS TO THE PETITIONER'S NEED FOR AN INTERPRETER.
POINT II
COUNSEL WAS INEFFECTIVE IN FAILING TO SECURE AN INTERPRETER AND MISINFORMED APPELLANT OF DEPORTATION CONSEQUENCES.
i. The Roots of the Right to Effective and the Applicable Standard of Review.
a. The Standards Set Forth in Cronic and Strickland.
b. Counsel's Responsibility to the Accused.
c. Preparedness of Counsel is the Linchpin.
1. Consultation with the Accused.
2. Legal Research.
ii. Appellant is Entitled to Relief.
iii. The Claims Are Not Time-Barred.
iv. Appellant Established a Prima Facie.
v. Outcome Determination.
vi. The Plea Should be Set Aside.
vii. The Remaining Ineffective Assistance of Counsel Claims are not Procedurally Barred.
1. PTI.
2. Motion to Suppress.
II.
We turn first to defendant's argument that the plea judge erred by failing to inquire into defendant's English comprehension, and failed to appoint an interpreter. Having reviewed the arguments in light of the record and applicable law, we conclude there is sufficient credible evidence to support the PCR judge's finding that defendant understood English at the time of the plea hearing, and did not require an interpreter.
Where a PCR court has held an evidentiary hearing, we review that PCR court's findings of fact under a clear error standard. See State v. Harris, 181 N.J. 391, 420 (2004). Thus, we "uphold the PCR court's findings that are supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013).
Credibility findings made by the trial court are entitled to greater deference. Harris, supra, 181 N.J. at 420. Furthermore, in reviewing ineffective assistance of counsel cases, "judicial scrutiny . . . must be highly deferential, and must avoid viewing the performance under the distorting effects of hindsight." State v. Arthur, 184 N.J. 307, 318-19 (2005) (internal quotations and citations omitted). However, where a PCR court's decision presents a question of law or a mixed question of law and fact, our review is de novo. Harris, supra, 181 N.J. at 420.
At the evidentiary hearing, witnesses testified for both parties. Defendant was permitted to testify remotely from the Dominican Republic using Skype. He testified that at the time of the plea agreement, he was unable to have a conversation in English, and that he was expressly told by his attorney that he would not be deported as a result of his plea. Defendant's wife, Carmen Aguiar, also testified that defendant could not effectively communicate in English.
The State called defendant's plea counsel, who testified that although he could not remember defendant's specific case, it was his practice at the time to retain an interpreter any time a defendant could not effectively communicate in English. The State also called Nadine Hunter, the probation officer who interviewed defendant and prepared his presentence report. Although Hunter could not remember interviewing defendant, she testified that defendant's presentence report recorded verbatim statements made by defendant in English. For example, the following verbatim account given by defendant was read into the record from the presentence report:
I was driving on Franklin Street in Jersey City and the narcotics officer stopped me and checked me and found 20 bags of cocaine in my jacket. After they took the car they searched it and found 30-something packets of cocaine. They said I was a thousand feet from Number 8 School so I pled guilty to the charge[.]
Hunter further testified that, when an interpreter is used, a notation is made on the presentence report, and that no such notation was present on defendant's report.
At the conclusion of the hearing, the PCR judge found defendant's plea counsel's testimony "credible . . . but inconclusive" because the attorney could not specifically remember defendant's case. However, the judge found Hunter's testimony "to be the most credible in determining [defendant's] comprehension of English, because of her experience with [defendant], lack of self-interest, and general demeanor."
Furthermore, the judge found Aguiar's testimony not to be credible due to her obvious self-interest and the contradiction of her testimony by evidence in the record. Additionally, the court noted that Aguiar was not competent to testify as to defendant's discussions with plea counsel, because she was not present.
The PCR judge also placed emphasis on defendant's responses to questioning at the March 7, 2001 sentencing hearing:
COURT: Right. Well, can you ask your client, did he have them [letters to the court] sent in?The PCR judge found that defendant's response indicated that defendant could speak English and understand questions and instructions given to him. The judge concluded, "I have no doubt that petitioner spoke English at the time of his plea."
[COUNSEL]: Did you ask Carmen Lopez to send a letter in on your behalf?
[DEFENDANT]: No, she give it to me, that lady from the probation, she said she needed it.
We defer to the PCR judge's credibility findings "because that judge has the ability to evaluate the witnesses firsthand." State v. Ways, 180 N.J. 171, 196 (2004) (citing State v. Carter, 69 N.J. 420, 427 (1976)). Likewise, defendant's fluent and responsive answers to questions by the plea judge and probation officer provide ample support for the PCR court's conclusion that defendant's language skills were adequate at his plea.
Defendant points to the colloquy that took place at the plea hearing, and argues that many of his answers were either monosyllabic, incorrect, or unresponsive:
COURT: All right. How old are you, sir?We are unpersuaded by defendant's argument.
DEFENDANT: 33.
COURT: And how far have you gone in school?
DEFENDANT: 103.
[COUNSEL]: No, not today. That's the crime, Judge. How long did you go to school?
DEFENDANT: Oh, eight.
[COUNSEL]: Eighth grade, okay.
COURT: Were you able to read and understand the paperwork you filled out with your lawyer?
DEFENDANT: Yes, sir.
COURT: Are you satisfied with your attorney's advice?
DEFENDANT: Yes, sir.
COURT: Do you need any more time to speak with him?
[COUNSEL]: Do you want any more time?
DEFENDANT: No.
With respect to defendant's monosyllabic responses, we note that most of the questions asked by the court before accepting the plea called for a monosyllabic yes or no response, and that defendant provided an affirmative answer where an affirmative answer was appropriate, and a negative answer where a negative answer was appropriate. This contradicts defendant's assertion that he was instructed to "just say 'yes[,]'" and suggests comprehension of the questions presented by the court.
Furthermore, the mere fact that defendant may have misunderstood the court's question regarding his level of education does not compel the conclusion that defendant required an interpreter. We do not know what defendant meant by his initial response of "103." However, he quickly corrected himself when the question was clarified, and responded "eight." The record reflects that defendant received education until the third grade, and we note that, at least in the United States, a third-grade student is typically eight or nine years of age. We therefore disagree with defendant's contention that the reply was unresponsive to the question asked.
III.
We turn next to defendant's argument that his other PCR claims were erroneously denied without an evidentiary hearing. Having reviewed the record and applicable law, we conclude that these claims were properly denied by the PCR court without an evidentiary hearing.
As noted above, we typically review findings of fact under a clear error standard, and conclusions of law under a de novo standard. See Harris, supra, 181 N.J. at 420. However, where "no evidentiary hearing has been held, we 'may exercise de novo review over the factual inferences drawn from the documentary record by the PCR judge.'" State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010), certif. denied, 206 N.J. 64 (2011) (quoting Harris, supra, 181 N.J. at 420).
First, defendant contends his claims of ineffective assistance of counsel were improperly denied without an evidentiary hearing. We disagree. Rule 3:22-10 states "[a] defendant shall be entitled to an evidentiary hearing only upon establishment of a prima facie case in support of post-conviction relief." "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington and United States v. Cronic, which [the Court] adopted in State v. Fritz, 105 N.J. 42, 58 (1987)." State v. Preciose, 129 N.J. 451, 463 (1992) (citations omitted).
Under the Strickland standard, a petitioner must show counsel's performance was both deficient and prejudicial. State v. Martini, 160 N.J. 248, 264 (1999). The performance of counsel is "deficient" if it falls "below an objective standard of reasonableness" measured by "prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2064, 80 L. Ed. 2d at 674 (1984). Counsel's performance is "prejudicial" only if "there is 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. As with a summary judgment motion, a PCR court deciding whether to grant an evidentiary hearing "should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 462-463.
Defendant contends his plea counsel misinformed him of the immigration consequences of a guilty plea. He further argues that, in the absence of any evidence to the contrary, his own allegation should be enough to make a prima facie case. This argument fails because it is the PCR petitioner, not the State, that bears the burden of demonstrating a prima facie case. Defendant's bald assertion of ineffective assistance, uncorroborated by any other evidence in the record, is clearly not sufficient. See State v. Santos, 210 N.J. 129, 144 (2012). We therefore agree with the PCR court that defendant failed to present a prima facie case necessitating an evidentiary hearing with respect to his ineffective assistance claim based on attorney misinformation.
Second, defendant contends the PCR court improperly denied his other PCR claims as time-barred. Again, we disagree with defendant's contention. An application for PCR may not be filed more than five years after the challenged judgment or sentence "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." R. 3:22-12(a)(1). Such a claim must be made in the application and must allege facts sufficient to support it. State v. Cann, 342 N.J. Super. 93, 102 (App. Div.), certif. denied, 170 N.J. 208 (2001).
Here, the PCR judge relaxed the five-year time bar imposed by Rule 3:22-12, but only with respect to those claims pertaining to whether or not defendant was able to understand the consequences of his plea. Defendant's other PCR claims, alleging that counsel failed to apply for PTI, failed to pursue available defenses, stipulated to facts without a signed stipulation from defendant, failed to file a motion to suppress, and that the court failed to establish a factual basis for the plea, were held to be barred.
We agree with the PCR court's conclusion that defendant's time-barred claims are logically distinct from his timely claims. The time-barred claims concern alleged errors that should have been apparent before defendant's deportation.
IV.
Finally, defendant contends the PCR court erred by denying his motion to vacate his guilty plea. After reviewing the record and applicable law, we agree with the PCR court's conclusion that there was an adequate factual basis for defendant's guilty plea.
As an initial matter, we note the distinction between a motion to vacate a guilty plea for lack of an adequate factual basis, which is reviewed de novo, and a motion to withdraw a guilty plea, which is reviewed for abuse of discretion. State v. Tate, 220 N.J. 393, 403-404 (2015). A motion to vacate is reviewed de novo because it does not require the reviewing court to make determinations "based on witness credibility or the feel of the case[.]" Id. at 404. Rather, the court simply assesses "whether the factual admissions during a plea colloquy satisfy the essential elements of an offense." Ibid.
A motion to withdraw presents a stricter standard of review because the reviewing court "is making qualitative assessments about the nature of a defendant's reasons for moving to withdraw his plea and the strength of his case[,] and because the court is sometimes making credibility determinations about witness testimony." Ibid.
Defendant characterizes his motion as a motion to vacate. However, defendant's arguments clearly call upon the court to evaluate the credibility of witnesses and assess the strength of his claims. It should therefore properly be treated as a motion to withdraw his guilty plea, and should be reviewed for abuse of discretion.
A decision constitutes an abuse of discretion where it "was made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002)). The PCR court did not abuse its discretion by denying defendant's motion for withdrawal of the guilty plea.
A motion to withdraw a guilty plea is governed by the four-part test set out in State v. Slater, 198 N.J. 145, 158 (2009). The court must weigh "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Ibid. The PCR court correctly weighed these factors to conclude that defendant was not entitled to withdraw his guilty plea.
The first prong requires that a defendant "present specific, credible facts and, where possible, point to facts in the record that buttress their claim" of innocence. Ibid. The PCR court correctly concluded that defendant has presented no colorable claim of innocence.
Defendant contends "he had no intention of personally distributing narcotics[,]" and merely intended to "transfer [the cocaine] to its owner." However, the distinction between "distribution" and mere "transfer" is not recognized under N.J.S.A. 2C:35-5a(1) and 2C:35-7, which govern distribution of CDS within a school zone. See In re G.R., 395 N.J. Super. 428, 432-433 (App. Div. 2007) ("The statute does not draw a distinction between distributing or dispensing to another in exchange for money and a gratuitous transfer of the narcotics. Either conduct constitutes the crime as defined by N.J.S.A. 2C:35-5a(1).")
Defendant also argues that there was no proof offered that defendant's conduct took place within one thousand feet of a school zone. However, on a motion for withdrawal of a guilty plea, it is the defendant that bears the burden of stating a colorable claim. See Slater, supra, 198 N.J. at 156. Defendant presents no evidence on this issue. Furthermore, defendant's counsel stipulated to the presence of a school within one thousand feet of defendant's conduct.
The second prong of the Slater test asks the court to consider "whether defendant has presented fair and just reasons for withdrawal, and whether those reasons have any force." Slater, supra, 198 N.J. at 159. Defendant contends that the absence of an interpreter and the affirmative misinformation of his attorney regarding the consequences of his plea both warrant withdrawal of the plea. However, as discussed above, defendant's claims regarding the absence of an interpreter and affirmative misinformation by his attorney were properly rejected. Thus, the PCR court correctly weighed this factor against defendant.
The third Slater prong calls for consideration of whether the plea was entered pursuant to a plea bargain. See Slater, supra, 198 N.J. at 161. Defendants face a heavier burden to dislodge a plea entered pursuant to a plea bargain. Id. at 160-61. However, the court correctly minimized the importance of this prong because "it applies to the vast majority of criminal cases." Id. at 161.
The fourth prong requires consideration of whether and to what extent the State will be prejudiced by withdrawal of the plea. Ibid. One of the key inquiries under this prong "is whether the passage of time has hampered the State's ability to present important evidence." Ibid.
The events underlying this case occurred between December 1999 and January 2000. The denial of defendant's motion occurred in September of 2013. The testimony of State's witnesses at the evidentiary hearing bears out the fact that memories of the events in this case have faded. The PCR court was thus correct in concluding that the State would be unfairly prejudiced if it were now forced to seek a conviction at trial.
In sum, every one of the four Slater factors weighs against withdrawal of defendant's guilty plea. The PCR court thus did not abuse its discretion in denying defendant's motion for withdrawal of the plea.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION