Opinion
DOCKET NO. A-1906-12T3
03-18-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EMMANUEL C. REYES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Michelle E. Ditzhazy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Espinosa.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-06-01156.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Michelle E. Ditzhazy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
Defendant pled guilty pursuant to a plea agreement to one count of possession with intent to distribute methamphetamine within 500 feet of public property as defined in N.J.S.A. 2C:35-7.1. The sentencing court imposed an aggregate sentence of five years in New Jersey State Prison. Defendant did not file a direct appeal.
Defendant filed a PCR petition in January 2012 in which he argued that counsel failed to advise defendant to consult with an immigration lawyer, that counsel failed to adequately investigate relevant facts and law, and that defendant did not have an opportunity to discuss the consequences of his guilty plea with an immigration lawyer. In the supplemental brief submitted on defendant's behalf, it was argued that trial counsel failed to obtain a Tagalog interpreter to assist defendant in reviewing the plea form and entering his guilty plea; that counsel failed to properly inform defendant of the immigration consequences of his plea; that the plea was entered under circumstances that require the plea be vacated; and that defendant was entitled to an evidentiary hearing.
The record does not include any motion to withdraw his guilty plea and, we note, defendant does not assert any colorable claim of innocence. See State v. Slater, 198 N.J. 145, 157-58 (2009).
The PCR court denied defendant's petition by order dated July 19, 2012. In this appeal, defendant argues that the trial court erred in failing to hold an evidentiary hearing. Specifically, he contends he did not fully understand the immigration consequences of his guilty plea and argues that,
because defendant's native language is Tagalog and an interpreter was not utilized at either defendant's plea hearing or during trial counsel's review of the plea form with defendant, it cannot be definitively concluded based on the existing record that defendant was properly informed of the deportation consequences of the plea, or that he entered the plea knowingly and voluntarily.
In the certification submitted in support of his petition, defendant states he was born in 1963, came to the United States in 1993 and has resided in New Jersey for fifteen years. Although he complains of a failure to advise him regarding immigration consequences, he makes no argument or representation that he lacked the ability to understand the English language or was unable to understand the proceedings without the aid of a Tagalog interpreter. Moreover, in the plea colloquy, which was conducted in English, defendant answered the court's questions in English, advised the court he was forty-seven years old and had completed high school, and told the court he could read and write the English language.
Rule 3:22-10(c) provides that "[a]ny factual assertion that provides the predicate for a claim of relief [in a petition for PCR] must be made by an affidavit or certification . . . and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing." Because defendant has failed to support his factual assertions that a Tagalog interpreter was required for him to understand the proceedings, this contention must fail. The thrust of defendant's argument is, therefore, his claim that his counsel was ineffective for failing to adequately explain that defendant would be deported as a consequence of his guilty plea.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.
The prejudice claimed by defendant is that he entered a guilty plea without knowing he would be deported as a result. To show prejudice after having entered a guilty plea, a defendant must prove "there is 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. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (internal quotation marks and citation omitted). A defendant presents a prima facie case of ineffective assistance when "counsel provides false or affirmatively misleading advice about the deportation consequences of a guilty plea, and the defendant demonstrates that he would not have pled guilty if he had been provided with accurate information." State v. Gaitan, 209 N.J. 339, 351 (2012) (citing Nuñez-Valdéz, supra, 200 N.J. at 131), cert. denied, _ U.S. _, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Because defendant entered his guilty plea after the Supreme Court decided Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), he was entitled to rest his ineffective assistance claim upon a showing that his attorney failed to advise him that his guilty plea would lead to mandatory deportation. See Gaitan, supra, 209 N.J. at 371.
However, no evidentiary hearing is required to examine trial counsel's conduct regarding deportation consequences because defendant cannot satisfy the second prong of the Strickland/Fritz test. The record includes the following colloquy between the court and defendant in the plea colloquy:
COURT: Are you a citizen of the United States?
DEFENDANT: No.
COURT: Do you realize by pleading to this, you'll get deported?
DEFENDANT: Yes.
Thus, defendant was unequivocally told that his guilty plea would result in his deportation, and he acknowledged his understanding of that consequence. Nonetheless, he proceeded to enter a guilty plea. It is clear that under these circumstances he is unable to show that if his counsel had advised him of the deportation consequences, he "would not have pled guilty and would have insisted on going to trial." Nuñez-Valdéz, supra, 200 N.J. at 139.
We are therefore satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland/Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION