Opinion
DOCKET NO. A-1376-14T4
02-29-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE A. SANTANA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Lillian Kayed, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 11-10-1835. Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Lillian Kayed, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Jose Santana appeals from the September 5, 2014 order of the Law Division denying his petition for post-conviction relief (PCR) after a hearing. He now claims he is entitled to withdraw his guilty plea because he received ineffective assistance of counsel from his trial attorney.
On July 21, 2011, Jersey City Police Officers Chowenec, Cortes, and Hilburn were conducting surveillance with a narcotics unit near Woodward Street in Jersey City. Their attention was drawn to a man, later identified as Levi Williamson, running north on Woodward. They observed Williamson approach a Honda Civic and appear to have a short conversation with a man, later identified as defendant. Defendant was alone in the car, sitting in the front passenger seat. Hilburn and Cortes observed Williamson hand defendant "small objects," which he began to inspect. The officers then observed defendant hand Williamson currency.
Williamson then began to walk south on Woodward Street. Believing they had just witnessed a narcotics transaction, Officer Cortes approached Williamson while Officer Hilburn walked toward defendant, who was still sitting in the Honda. Hilburn observed defendant holding five small plastic bags containing a white powdery substance. Both Williamson and defendant were arrested.
On October 26, 2011, a grand jury sitting in Hudson County returned a four-count indictment charging Williamson and defendant. Williamson was charged in the first three counts, while defendant was charged with only one count of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1) (count four).
On December 3, 2003, on the eve of trial, defendant pled guilty to count four of the indictment pursuant to a negotiated plea agreement. In return, the State recommended a sentence of probation. On January 17, 2013, defendant was sentenced to a two-year term of probation, twenty-five hours of community service, and appropriate fines and fees.
At some time subsequent to his sentencing, defendant was detained by the United States Department of Homeland Security's Bureau of Immigration and Customs Enforcement (ICE). Defendant appealed his sentence and we heard the matter at an excessive sentencing oral argument panel on June 3, 2013. Defendant's appellate counsel stated that he had not heard from defendant and he may have been deported.
On November 7, 2013, defendant submitted a pro se PCR petition indicating that he was detained by ICE and facing deportation. After the appointment of counsel, a supplemental brief was filed alleging defendant's plea counsel was ineffective for providing incorrect legal advice and for failing to apply for pre-trial intervention (PTI).
On April 11, 2014, the sentencing judge heard oral argument on defendant's petition. Defendant's PCR counsel informed the judge that defendant had been deported to the Dominican Republic, and he wanted an opportunity to determine if defendant still wanted to proceed.
On May 21, 2014, the judge heard additional argument. PCR counsel informed the judge that defendant's trial counsel had engaged an investigator who interviewed a witness, Maria Trinidad, who could have testified that defendant did not buy cocaine on July 21, 2011. PCR counsel also argued that trial counsel failed to seek PTI for defendant.
The prosecutor noted that Trinidad's version was that the drugs were thrown into defendant's car and not handed to him as indicated in the police report, and was not necessarily exculpatory. He also noted that N.J.S.A. 2C:43-12 disqualified anyone who had a prior supervisory sentence from PTI. The judge indicated she would file a written decision in June.
According to comments made by the judge on the record, she wrote a decision on June 19, 2014 ordering an evidentiary hearing, limited to the purported exculpatory witness. Although the judge referenced that earlier decision on several occasions, defendant's appellate counsel inexplicably states in his brief that the judge did not file a written decision. Needless to say, the earlier written decision was not included in the record by either party.
On September 3, 2014, the judge held an evidentiary hearing on defendant's petition. Defendant appeared telephonically from the Dominican Republic. He testified that Maria Trinidad is a friend who was with him on the day of his arrest. He claimed that his trial counsel never discussed Trinidad with him and he did not know that she had been interviewed by a defense investigator. His counsel suggested that he plead guilty because the State was offering probation and he faced up to five years in prison if convicted after trial. He accepted the plea deal to avoid jail time:
So then I decided to accept the two years of probation because I was not going to go to jail and I was afraid of going to jail.
Defendant also testified that he consulted with an immigration attorney who advised him that a conviction could result in his deportation.
Defendant then called Maria Trinidad, who testified that on July 21, 2011, she was riding with defendant in his car. After picking up food for Trinidad's son, they drove to defendant's house. Trinidad got out of the car and spoke with defendant's landlord. As Trinidad was speaking with the landlord, she saw a man from the neighborhood walk by and throw something towards defendant's car. Shortly thereafter, the police arrived and arrested both men. Trinidad said she was interviewed by defendant's trial counsel and subpoenaed to appear as a witness for trial. When she arrived at the courthouse, she was told there would be no trial because defendant pled guilty.
The State then called defendant's trial counsel who testified that, after reviewing the discovery, he told defendant that the State had a strong case. Trial counsel interviewed Trinidad, who first stated that drugs were thrown into the car. When counsel interviewed Trinidad before trial, he felt she "changed the testimony a little bit" and stated that "something" was thrown into the car.
Trial counsel attempted to negotiate a plea to disorderly conduct, but the prosecutor refused. On the day the plea was entered, counsel was prepared to try the case and call Trinidad as a witness, but defendant decided to accept the plea with the certainty of probation.
In her oral decision, the judge noted that defendant was not asserting a claim of innocence and had not moved to withdraw his guilty plea. Summarized succinctly, the judge identified the "real issue is . . . he was upset that he was deported." The judge denied the PCR petition, noting that she fully advised defendant of the possible consequence of deportation during his plea allocution. The judge also found that Trinidad "said nothing which really contradicts what was testified to by the defendant" during his plea allocution.
On appeal, defendant raises two points:
POINT I
DEFENDANT IS ENTITLED TO WITHDRAW HIS PLEA BECAUSE THE NATURE AND STRENGTH OF HIS CLAIM OUTWEIGH THE STATE'S INTEREST IN PRESERVING THE PLEA.
POINT II
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF FOR COUNSEL'S FAILURE TO CONDUCT ANY TRIAL PREPARATION THEREBY FORCING DEFENDANT TO ACCEPT A PLEA ON THE DAY TRIAL WAS TO BEGIN.
"Our standard of review is necessarily deferential to a PCR court's factual findings based on its review of live witness testimony. In such circumstances we will 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).
Defendant first claims that he is entitled to withdraw his guilty plea. Defendant's PCR petition alleged ineffective assistance of his trial counsel for failing to "advise [him] to proceed to trial rather [than] accept the plea deal" and failing to apply for PTI. Defendant did not seek to withdraw his plea at the PCR hearing and the PCR judge noted specifically that defendant was not making a Slater motion. Because defendant failed to raise this issue before the PCR judge, he has waived any challenge on appeal. R. 1:7-2.
State v. Slater, 198 N.J. 145 (2009). --------
In any event, as the PCR judge's opinion makes clear, defendant's claim that he is entitled to withdraw his plea is without merit. R. 2:11-3(e)(2). Review of the record satisfies us that defendant, by his own admission, made a knowing and voluntary decision to avoid the possibility of a prison sentence and accept the plea deal, which assured him of probation. He was well aware of the possibility of deportation, having consulted with an immigration attorney on more than one occasion. We agree with the PCR judge that the decision to plead guilty was made by defendant because "although he was concerned about deportation, he was concerned more about prison[.]"
Defendant's second claim, that his trial counsel failed to conduct any trial preparation and forced him to accept a plea on the day trial was scheduled to begin, is equally bereft of merit and unsupported, if not contradicted, by the record evidence.
As the PCR judge found, trial counsel met with defendant on several occasions and reviewed the discovery, the penal consequences, and the strength of the State's proofs with him. He also spoke with Trinidad at least twice, engaged an investigator to interview her, and subpoenaed her to testify at trial. She was present in court and prepared to testify if defendant chose not to accept the plea agreement. Defendant spoke with an immigration lawyer, and trial counsel actually postponed one of the proceedings to give defendant another opportunity to consult with that lawyer. Finally, counsel did not settle for the plea agreement to third-degree possession, but attempted to negotiate a plea to a disorderly persons offense; the prosecutor refused.
Far from ineffective, trial counsel's assistance to defendant was exceedingly thorough.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION