Opinion
DOCKET NO. A-2184-11T1
05-06-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARCO SORIA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Linda Claude-Oben, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fasciale and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-02-0318.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Linda Claude-Oben, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Marco Soria appeals the Law Division order dated April 21, 2011, denying him post-conviction relief (PCR). We affirm.
At the time of his guilty plea, defendant was an illegal alien who came to the United States in 1987 on a now-expired visitor's visa. He is a native of Bolivia.
Defendant acknowledged in his PCR brief that he came to the United States in June 4, 1987, on a B-2 visitor's visa as a non-immigrant, for a temporary period not to exceed six months. He admits that he remained beyond the December 2, 1987 expiration date without authorization.
On September 23, 1998, defendant was arrested for aggravated sexual assault on a sixteen-year-old victim, and forgery for altering his resident alien card and a social security card. In August 1999, defendant entered into a negotiated guilty plea to fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). On October 22, 1999, defendant was sentenced to a five-year term of probation, with special conditions of three months in county jail, and requirements to maintain stable employment; refrain from entering any school building or upon school property; attend counseling; and Megan's Law community supervision. On February 18, 2000, defendant was resentenced, vacating the custodial sentence. Defendant did not appeal.
Community supervision for life has its statutory source in the Violent Predator Incapacitation Act, N.J.S.A. 2C:43-6.4. The statute is one component of a series of laws that are referred to generally as "Megan's Law." N.J.S.A. 2C:7-1 to -23.
The facts as adduced from the record indicate that on September 23, 1998, defendant entered the girls' bathroom in a high school and touched the vagina of a sixteen-year-old girl who he did not know. Another student witnessed the incident. Upon exiting the bathroom, a school security guard detained defendant until the police arrived.
At his plea hearing, defendant admitted that he entered the girls' bathroom in the school, placed his hand down the front of a sixteen-year-old girl's pants, and touched her "private parts." He admitted that he did this for his own gratification.
Defendant filed a pro se PCR petition in May 2010 alleging ineffective assistance of counsel for, among other things, failing to conduct adequate pretrial investigation; not developing an adequate defense; and failing to advise of the deportation consequences of his guilty plea. His appointed counsel filed a supporting brief that sought to vacate defendant's guilty plea due to trial counsel's conduct.
After oral argument, Judge Paul M. DePascale, Jr., denied the petition. The judge found that the petition was untimely and barred under Rule 3:22-12, having been filed more than ten years after the entry of the judgment of conviction. PCR counsel argued that excusable neglect for the delayed filing was established due to defendant first becoming aware of the deportation implications in 2009, when he was taken into custody on new charges by Immigration and Custom Enforcement (I.C.E.). The State countered that defendant was actually detained in 2004 by I.C.E. and advised of the deportation consequences for the sexual contact conviction. The judge found that defendant had been detained in 2004 and determined that defendant had not demonstrated that the delay in filing his petition was due to excusable neglect for the more than ten years from the time of conviction in 1999, or from the six years since the first I.C.E. detainment in 2004. The judge also found that enforcement of the time-bar would not result in a fundamental injustice as defendant acknowledged that there existed an independent basis for his deportation prior to the entry of the plea, namely his unauthorized continued presence in the United States beyond the six months permitted by his B-2 visitor's visa.
Defendant acknowledged in his pro se certification that he had been detained in 2004 after being referred by the Hudson County Prosecutor's office due to a Megan's Law violation.
Notwithstanding the court's rejection of the untimely petition, the judge considered the merits of the petition. The judge focused principally on the second prong of the Strickland analysis, which requires a petitioner to demonstrate that there is a reasonable probability that but for counsel's errors he would not have pled guilty. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2069, 80 L. Ed. 2d 674, 698 (1984). Citing Padilla v. Kentucky, 559 U.S. 356, _, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 298 (2010), the judge noted that to satisfy the second prong, a court must be convinced that "a decision to reject a plea bargain would have been rational under the circumstances." The judge reasoned defendant's claim of ineffective assistance would have been rational only if defendant asserted a claim of innocence or any other non-frivolous defense, and informed his lawyer prior to entering the guilty plea. Noting that defendant never claimed that he was innocent of the offense, the judge found that defendant's bare assertions were insufficient to establish that counsel's performance fell below an objective standard of reasonableness or that defendant was prejudiced. This appeal followed.
On appeal, defendant raises the following claims:
I. THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF BECAUSE OF THE [FIVE-]YEAR PROCEDURAL BAR SINCE THE IMPACT THAT THE VIOLATIONS OF DEFENDANT'S SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND HIS FOURTE[E]NTH AMENDMENT DUE PROCESS RIGHT TO BE INFORMED OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA WERE SO SIGNIFICANT, RELAXATION OF R[ULE] 3:22-12 UNDER THE "INJUSTICE" CLAUSE OF R[ULE] 1:1-2 WAS WARRANTED.We are not persuaded by these arguments.
II. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTION AND SENTENCE VACATED BECAUSE TRIAL COUNSEL'S FAILURE TO ADVISE DEFENDANT OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA DEPRIVED DEFENDANT OF HIS
CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
III. THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
IV. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
A. Defendant Should be Permitted to Withdraw His Plea of Guilty.
B. Trial Counsel's Failure to Conduct an Adequate Pretrial Investigation; His Failure to Provide Discovery to Defendant; His Failure to Interview Witnesses; and His Failure to Confer to Suppress Defendant's Statement[] and With Defendant[] Resulted in Ineffective Assistance of Counsel.
A.
We begin by addressing defendant's claims that he received ineffective assistance of counsel at his plea hearing because he was never correctly informed that he would be deported as a consequence of his guilty plea. The State contends that defense counsel properly performed her duties and there is nothing in the record to indicate that defendant was not aware of the deportation consequences.
The general standards by which a defendant must prove ineffective assistance of counsel are familiar, and we will not repeat them here. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Loftin, 191 N.J. 172, 198 (2007); State v. Fritz, 105 N.J. 42, 52 (1987). The United States Supreme Court has extended these principles to the representation provided by a criminal defense attorney to an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. _, _, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S., ____, _, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at _, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Viewing the facts most favorably to defendant, State v. Preciose, 129 N.J. 451, 462-63 (1992), and therefore assuming defendant's plea hearing statements to be true, we conclude that the factual allegations are nevertheless insufficient to satisfy the first prong of the Strickland standard. The petitioner must first show that counsel's performance was deficient as measured by an objective standard of reasonableness, taking into account prevailing professional norms. Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. To do so, PCR counsel relies on the rules of attorney conduct established in Padilla and State v. Nuñez-Valdéz, 200 N.J. 129 (2009), requiring that defense counsel render advice that is neither misleading nor incorrect.
Upon a careful review of the case law prior to Padilla and its progeny, we conclude that defendant's claims have no merit. We begin by briefly reciting the development of the law pertaining to counsel's obligation to render effective assistance of counsel to non-citizens.
In Nuñez-Valdéz, our Supreme Court held that a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from "inaccurate information from counsel concerning the deportation consequences of his plea." The Court focused on "false or misleading information" from counsel as establishing the violation of the defendant's constitutional rights. Id. at 138.
Later, in Padilla, supra, 559 U.S. at _, 130 S. Ct. at 1486, 176 L. Ed. 2d at 299, the United States Supreme Court held that an attorney's failure to advise a non-citizen client about the immigration risks attendant on pleading guilty constituted ineffective assistance of counsel. By extending counsel's duty beyond rendering incorrect advice, the Court declared that counsel has an affirmative duty to inform a defendant when a guilty plea will result in deportation, at least where the relevant law pertaining to mandatory deportation is "succinct, clear, and explicit." Id. at _, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295.
We examine defendant's arguments in light of Padilla and Nuñez-Valdéz and conclude that defendant's reliance on their applicability is misplaced. Defendant entered his guilty plea in August 1999, ten and eleven years before Nuñez-Valdéz and Padilla, respectively, were decided. Consequently, neither the higher standard of attorney conduct established in Padilla nor the less-stringent duty espoused in Nuñez-Valdéz apply in this case. Rather, defendant remains bound by "precedent existing at the time the . . . conviction became final." Gaitan, supra, 209 N.J. at 372 (citations omitted) (internal quotation marks omitted).
In State v. Gaitan, 209 N.J. 339, 372 (2012), cert. denied, _ U.S. _, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013), our Supreme Court held that "Padilla is not entitled to retroactive application" on collateral review. Recently, in Chaidez v. United States, _ U.S. _, _, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013), the United States Supreme Court reached the same result.
The prevailing law in 1999 categorized deportation as a collateral consequence of a guilty plea as to which there was no duty imposed on either the court or counsel to inform defendants. See State v. Chung, 210 N.J. Super. 427, 435 (App. Div. 1986) (concluding that it is not the present responsibility of counsel to advise a defendant of federal deportation consequences at the time of the taking of the guilty plea); see also State v. Heitzman, 107 N.J. 603, 604 (1987) ("[D]efendant need be informed only of the penal consequences of his plea and not the collateral consequences, such as loss of public or private employment, effect on immigration status, voting rights, possible auto license suspension, possible dishonorable discharge from the military, or anything else."). More particularly, at the time defendant entered his plea the courts required an "actual misrepresentation" by counsel regarding immigration ramifications of a plea in order to prove ineffective assistance of counsel. Chung, supra, 210 N.J. Super. at 434-35.
In this case, the plea hearing transcript does not reflect any commentary by defense counsel or the court advising defendant of deportation consequences. The defendant's affidavit avers that defense counsel "never ever mentioned [to] me the collateral damages upon accepting the plea bargaining regarding the [i]mmigration consequences." He also states that "the court did not even mention any of the immigration consequences rendered to this plea." That appears to be an accurate view of the circumstances. The only reference to immigration was made by the judge in his colloquy with defendant:
THE COURT: Are you a citizen of the United States?Thereafter, defendant responded to the court's questions that he had an opportunity to discuss his case with his lawyer; that he had no additional questions for her or the court; that he read and understood the plea form; and he signed and initialed the designated pages.
THE DEFENDANT: No.
THE COURT: What country are you a citizen of?
THE DEFENDANT: Bolivia.
. . . .
THE COURT: What is your immigration status here? Are you a permanent resident?
THE DEFENDANT: Yes. I'm permitted to be here.
It should be noted that at the time of the plea defendant was living in this country illegally, and had been indicted for forging and altering an alien registration card and social security card. As such, his response that he was "permitted to be here" was not a true statement.
In 1999, it was not the responsibility of a New Jersey judge to advise a defendant of federal deportation consequences at the time defendant pled guilty. Chung, supra, 210 N.J. Super. at 433. Accordingly, "the trial judge's omission of this advice does not render a defendant's plea involuntary." Ibid.
Additionally, the record does not reflect that defense counsel advised defendant as to the immigration consequences of his plea on the record. Contrary to defendant's assertions that he was unaware of any impact on his immigration status, the record establishes that defendant reviewed and accepted the plea agreement, which dismissed count two charging defendant with forgery of federal documents and altering defendant's name on an alien registration card and a social security card. Based upon his plea form responses and the exchange with the judge confirming his understanding of the form, we conclude that defendant, who surely was aware of his illegal immigrant status, was also aware of possible immigration and deportation problems. There was no actual misrepresentation by defense counsel, who acted in accordance with the law and his fiduciary duty towards the non-citizen defendant at that time. As such, counsel's conduct was not unreasonable or outside the professional norms, Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695, and defendant's claim of ineffective assistance cannot be supported on these facts.
Lastly, even if the failure to provide advice was deemed ineffective, defendant has not demonstrated that he was prejudiced or that the outcome would have been any different had counsel advised him accordingly. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. As noted, defendant was apprehended immediately upon exiting the girls' bathroom and the State had the eyewitness testimony of the victim and another witness. The evidence supporting the forgery charge was clear as defendant was found in possession of altered government documents. It is highly unlikely that defendant would have succeeded at trial on either charge, so the risk of consecutive sentences on these unrelated charges was high. Instead, he received a five-year, non-custodial probationary term with conditions.
B.
Defendant next contends that Question 17 of the plea form was ambiguous and misleading because it did not inform him that he was "subject to mandatory deportation." We reject defendant's claim as it is counter to any reasonable interpretation of the regulations undergirding the use of the form at that time. Question 17 asked: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your guilty plea?" Defendant's response was "Yes." Our Supreme Court recently reviewed the evolving changes to Question 17 and explained:
The question remained in that [same] form throughout the changes in immigration law during the 1990s and early years of the new millennium that incrementally removed discretion from the system and tilted more and more toward compelling deportation. Eventually, the plea form question was broken into two parts -- first asking if the defendant was a citizen and, if the response was no, then asking whether the defendant understood that he "may be deported by virtue of [his] plea of guilty." Administrative [Office of the Courts,] Directive # 14-08 (Oct. 8, 2008), available at http://www.judiciary.state.nj.us/directive/2 008/dir_14_08.pdf (emphasis added). . . . A subsequent 2009 amendment to Question 17 . . . added more subparts, which inquired into a defendant's understanding that he will be subject to deportation for pleading guilty to a crime constituting an "aggravated felony" under federal law and asked whether the defendant understood his right to seek legal advice on his immigration status before pleading guilty. Administrative [Office of the Courts,] Directive # 08-09 (Sept. 4, 2009), available at http://www.judiciary.state.nj.us/directive/ 2009/dir_08-09.pdf.It is clear that the Supreme Court deemed it necessary and appropriate to modify the plea form in order to reflect the changes in immigration law, first in 2008, then more extensively after its ruling in Nuñez-Valdéz. It cannot be successfully argued that the plea form was unlawful in 1999, when the seminal case was not decided until ten years after defendant's plea.
[Gaitan, supra, 209 N.J. at 362-63.]
In the concluding paragraphs of Nuñez-Valdéz, supra, 200 N.J. at 143-44, the Court directed that Question 17 be revised and new language be added to the plea form to give more precise information about immigration and deportation consequences of certain convictions. The Court's directive, however, is not equivalent to a finding that the plea form was constitutionally deficient. State v. Brewster, 429 N.J. Super. 387, 397 (App. Div. 2013).
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C.
We now turn to defendant's claim that the trial court erred by dismissing the petition upon a finding that the filing was time-barred. Defendant's initial judgment of conviction was filed on October 27, 1999. He filed his PCR petition on May 22, 2010, more than ten years and six months later. Rule 3:22-12(a)(1) sets a five-year time limitation for the filing of a PCR petition, unless the petition itself shows excusable neglect for the late filing, and that fundamental injustice will ensue if defendant's claims are not considered on their merits. Rule 3:22-12(a)(2) allows an additional one-year limitation period if the courts recognize a new constitutional right or defendant discovers a previously unknown factual predicate justifying relief from the conviction.
The New Jersey Supreme Court has required a showing of "compelling, extenuating circumstances" or, alternatively, "exceptional circumstances," to relax the time limitation for a PCR petition. See State v. Milne, 178 N.J. 486, 492 (2004); State v. Goodwin, 173 N.J. 583, 594 (2002); State v. Murray, 162 N.J. 240, 246 (2000); State v. Afanador, 151 N.J. 41, 52 (1997); State v. Mitchell, 126 N.J. 565, 580 (1992). Where the deficient representation of counsel affected "a determination of guilt or otherwise wrought a miscarriage of justice," a procedural rule otherwise barring post-conviction relief may be overlooked to avoid a fundamental injustice. State v. Nash, 212 N.J. 518, 546-47 (2013) (quoting Mitchell, supra, 126 N.J. at 587). However, to succeed on a claim of fundamental injustice, the petitioner must show that the error "played a role in the determination of guilt." Id. at 547.
In this case, defendant has never asserted a claim of innocence, nor requested to withdraw his guilty plea before sentencing. His knowledge of the deportation implications did not affect the court's truth-finding function when it accepted his plea because he knew there was an independent basis for his deportation. Nothing in the record demonstrates excusable neglect for defendant's failure to file a PCR petition within five years of his conviction. Moreover, defendant had both the opportunity and the incentive to learn whether he might be deported before the time of his arrest by federal immigration authorities in December 2004. In sum, we conclude that the trial court correctly dismissed defendant's PCR petition as untimely filed.
We have considered the other arguments presented in defendant's submissions and conclude they lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION