Opinion
DOCKET NO. A-3189-10T3
02-26-2013
STATE OF NEW JERSEY, Plaintiff-Appellant, v. JOSE PANESSO, Defendant-Respondent.
Robert L. Taylor, Cape May County Prosecutor, attorney for appellant (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for amicus curiae Office of the Attorney General (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi and Hayden.
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment Nos. 00-02-0033 and 07-12-0814.
Robert L. Taylor, Cape May County Prosecutor, attorney for appellant (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for amicus curiae Office of the Attorney General (Frank J. Ducoat, Deputy Attorney General, of counsel and on the brief).
Respondent Jose Panesso has not filed a brief. PER CURIAM
The State appeals from the February 24, 2011 Law Division order granting defendant Jose Panesso's petition for post- conviction relief (PCR). Based upon the holding in Padilla v. Kentucky, 559 U.S. _____, _____, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010), the PCR judge concluded that defendant had been denied effective assistance of counsel because his attorney at the time of the plea negotiations and hearing did not adequately advise him that the conviction would result in his mandatory deportation. The New Jersey Supreme Court has now held that Padilla is not retroactive to convictions on collateral review. State v. Gaitan, 209 N.J. 339, 367 (2012). For the reasons that follow, we reverse the order granting PCR and reinstate defendant's conviction.
The record reveals that in 2000 a grand jury indicted defendant for second-degree sexual assault, N.J.S.A. 2C:14-2c (count one), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two). The charges stem from defendant engaging in sexual relations with a child under sixteen years old.
On April 6, 2000, defendant, who was born in Colombia and was a legal permanent resident of the United States, pled guilty to count two of the indictment. Prior to the plea hearing, defendant filled out the standard plea forms with his attorney, including the form containing Question 17, 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?" Defendant answered "yes." At the plea hearing, defendant stated that his plea was voluntary, he had discussed the plea forms with his attorney, and he had no questions of his counsel or the court. He provided a factual basis for the plea by admitting to having had sexual relations with a fourteen-year-old girl. On July 28, 2000, the trial judge sentenced defendant, in accordance with the plea agreement, to five years probation, conditioned on sixty days in the county correctional facility, compliance with Megan's Law, and other requisite penalties and fines. The remaining count was dismissed.
Subsequently, defendant successfully completed probation. In 2006, he was able to renew his legal permanent residency status without any difficulty. However, when he tried to re-enter the United States in February 2008 after visiting Colombia, he was detained by the immigration authorities.
On August 8, 2008, defendant, due to his pending federal deportation, filed a PCR petition, alleging ineffective assistance of counsel because his attorney failed to advise him about the immigration consequences of his plea. On August 3, 2009, Judge Susan F. Maven, who was not the trial judge, held an evidentiary hearing. Defendant testified telephonically that his counsel had reviewed all the questions on the plea form except Question 17. Defendant also stated that he did not ask his counsel about the immigration consequences of the plea; rather, the attorney raised it with him just once, when he assured defendant that if he pled guilty he would not be deported. Further, according to defendant, if he had known the plea would result in his deportation, he would have rejected it and gone to trial.
We note that in State v. Santos, 210 N.J. 129, 141-42 (2012), the Court adopted a two-part test that must be met before a trial court can permit telephonic testimony in a PCR hearing. Although the case under review here predates Santos, we nevertheless emphasize the need for trial courts to meet the standards adopted in Santos before authorizing telephonic testimony in a PCR hearing.
Defense counsel testified at the hearing that he had several discussions with defendant about the possible immigration consequences of a plea. The attorney recalled informing his client that the prosecutor was not interested in having him deported but the immigration authorities very well might deport him. Additionally, he remembered reviewing Question 17 with his client and telling him again that he faced possible deportation by the federal authorities. According to the attorney, defendant's "burning issue" was staying out of state prison, which became the focal point of all their discussions and the plea negotiations. The attorney remembered advising his client that, because of his admission to the police that he had sexual relations with the victim and since his sole defense was that he did not know the victim's true age, he would very likely be found guilty.
In her decision, Judge Maven found defense counsel's testimony more credible than defendant's. Based upon the two-prong Strickland test for determining ineffective assistance of counsel, the judge found that defendant failed to demonstrate the first prong since defendant's counsel did not provide deficient advice. The judge recognized that defendant's offense subjected him to mandatory deportation and determined that defense counsel's advice was sufficiently accurate to alert defendant to the possible immigration consequences of his plea. She observed that defendant was not deported immediately and the federal government's response was neither swift nor automatic.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). In Strickland, the Court held that, to establish ineffective assistance of counsel, a defendant must show that counsel's performance was objectively deficient and the deficient performance so prejudiced defendant as to deprive him of a fair trial. Ibid. When a guilty plea is involved, defendant must prove that but for counsel's deficient performance the defendant would not have pled guilty and would have insisted on going to trial. State v. DiFrisco, 137 N.J. 434, 457 (1994).
Judge Maven also determined that, even if defendant had demonstrated that counsel provided legally deficient advice, defendant had not demonstrated that he would not have accepted the guilty plea or the result would have been different at trial. The judge agreed with defense counsel's advice to his client that he did not have a credible defense to the charges. The judge found that defendant would likely have still taken the plea in order to stay out of jail or would have been convicted at trial. Accordingly, finding that neither prong of Strickland had been met, the judge denied the PCR petition by order dated August 13, 2009. No appeal was filed.
"[T]he child-endangerment statute [N.J.S.A. 2C:24-4a] requires only objective proof that the alleged victim was a child under the age of sixteen, not that the accused knew or reasonably should have known that fact." State v. Perez, 177 N.J. 54 0, 555 (2003).
On July 27, 2010, defendant moved for reconsideration of his PCR petition based upon the recent holding in Padilla. A second PCR judge granted defendant's motion, finding that the advice given by defense counsel, that there was a possibility of deportation, was deficient because deportation was mandatory for defendant's conviction. Thus, the judge found that counsel's inadequate advice met the first prong of Strickland.
Next, the judge found that, due to the mandatory deportation, it would have been reasonable for defendant to reject the plea and risk convictions on both counts. The judge concluded that defendant had demonstrated ineffective assistance of counsel as he was prejudiced by his counsel's deficient performance. Consequently, on February 22, 2011, the judge vacated the prior PCR denial and granted the original PCR petition, thereby vacating the guilty plea and reinstating the indictment.
Thereafter, the State moved for leave to appeal, which was granted on May 13, 2011. The State argued that Padilla should not be applied retroactively, and that Judge Maven correctly denied defendant's PCR petition because defense counsel did not provide ineffective assistance.
The State also raised procedural issues concerning the time limitations for filing PCRs, which we have elected not to address here.
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While this appeal was pending, the Court held in Gaitan that Padilla announced a new rule of constitutional law that did not apply retroactively to guilty pleas beyond direct appellate review. In particular, the Court held that Padilla expanded defense counsel's duties by requiring more precise advice when the law is "truly clear" that deportation is presumptively mandatory. Gaitan, supra, 209 N.J. at 380 (quoting Padilla, supra, 559 U.S. at _____, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296). That expansion of counsel's duties is a new rule of law and a departure from prior practice in our courts. Id. at 367. Failure of counsel to fulfill those duties before Padilla was decided may not be attacked on collateral review of a conviction. Ibid.
Thus, the new rule in Padilla, the basis for vacating defendant's conviction, does not apply here. Moreover, we discern no grounds for reversing Judge Maven's order denying defendant's PCR petition because he did not meet the Strickland standard for ineffective assistance of counsel. In State v. Nunez-Valdez, 200 N.J. 129, 140 (2009), the New Jersey Supreme Court deemed an attorney's performance constitutionally defective if counsel offered "misleading material information that resulted in an uninformed plea . . . ." In Nunez-Valdez, the defendant told his attorneys that the immigration consequences were very important to him and his attorneys assured him that his immigration status would not be affected by his plea. Id. at 132-33. This information was completely wrong, as the defendant was pleading to a crime which made him subject to mandatory deportation. Hence, the Court concluded that such false and misleading advice established the defendant's ineffective assistance of counsel claim. Id. at 138.
In Gaitan, the Court held that the information in Question 17, that the conviction may lead to deportation, was not "misadvice" and that counsel's failure to provide any advice on immigration consequences did not amount to the "affirmative misinformation and misleading advice" found deficient in Nunez-Valdez. Gaitan, supra, 209 N.J. at 375. Similarly, we recently held that in 1998, "counsel's prediction that defendant would not have an immigration issue, in conjunction with the warning that he may be deported, was not unreasonable advice or outside the norms of the profession." State v. Brewster, No. A-3394-10 (App. Div. Feb. 7, 2013) (slip op. at 13). See State v. Telford, 420 N.J. Super. 465, 472 (App. Div.) (noting that the question of whether child endangerment was an aggravated felony subjecting a person to mandatory deportation was the subject of considerable debate, which made giving definitive advice concerning the immigration consequences of a plea very complicated), certif. denied, 209 N.J. 595 (2012).
Thus, we agree with the State that Judge Maven's finding that defense counsel's warning to defendant that deportation was possible and that the immigration authorities very well might deport him, combined with the notice in Question 17 that deportation may result from the plea, was adequate legal advice at the time it was given. Deferring to the judge's factual findings, as we must, we also find that the judge's determination that it would have been unreasonable for defendant to turn down the plea is amply supported by the record.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION