Opinion
DOCKET NO. A-4575-11T4
03-25-2013
STATE OF NEW JERSEY, Plaintiff-Respondent v. JULIA TAPIA a/k/a JULIA PAGAN, Defendant-Appellant.
Ducheine Law Firm, attorneys for appellant (L. Dick Ducheine, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Alvarez.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 04-03-00492 and 06-02-00234.
Ducheine Law Firm, attorneys for appellant (L. Dick Ducheine, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, who is not a United States citizen, entered guilty pleas in 2004 and 2006 to third-degree receiving stolen property, N.J.S.A. 2C:20-7, and in both matters received probationary terms. In 2011, defendant filed a post-conviction relief (PCR) petition, arguing she was denied the effective assistance of counsel regarding the deportation consequences of her guilty pleas.
The PCR judge denied relief, and defendant appeals, presenting the following arguments:
I. WRONG, MISLEADING, AND INACCURATE IMMIGRATION ADVICE FORM THE BASIS OF INEFFECTIVE ASSISTANCE OF COUNSEL.We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
II. A [PCR PETITION] SHOULD BE CONSTRUED IN THE LIGHT MOST FAVORABLE TO THE DEFENDANT TO GRANT AN EVIDENTIARY HEARING.
III. TO DETERMINE THE CREDIBILITY OF DEFENDANT'S ALLEGATIONS OF INEFFECTIVE ASSISTANCE OF COUNSEL, AN EVIDENTIARY HEARING SHOULD BE HELD.
In appealing, defendant argues she was given incorrect legal advice regarding the deportation consequences of her two guilty pleas and that such an argument forms a valid basis for an ineffective-assistance-of-counsel argument. This argument is both relevant and true; unfortunately, what is true is not relevant and what is relevant is not true.
Now that it has been determined that a criminal defense attorney's failure to give any immigration advice does not apply to guilty pleas entered prior to Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), defendant recognizes she only has an actionable ineffectiveness claim if it can be demonstrated that her attorney gave incorrect advice, as recognized in State v. Nuñez-Vald?éz, 200 N.J. 129, 131 (2009). That understanding of the current state of the law is true, but it has no relevance because defendant did not allege facts in her PCR petition to support such a claim.
Chaidez v. United States, U.S., S. Ct., L. Ed. 2d (Feb. 20, 2013); see also State v. Gaitan, 209 N.J. 339, 371-72 (2012), cert. denied, ____ U.S. ____, ____ S. Ct., L. Ed. 2d (Feb. 25, 2013).
Despite her appellate counsel's unsupported arguments in the appeal brief to the contrary, defendant's sworn statement urged in support of her PCR petition did not assert her trial attorney gave incorrect advice either in 2004 or 2006; she asserted only that her attorney gave no advice about the deportation consequences of her guilty pleas. The absence of any sworn statement from defendant that her attorney gave incorrect legal advice deprives defendant of the benefit of Nuñez-Vald?éz, upon which her PCR petition was based. The claim defendant actually asserted in the trial court -- her attorney's failure to give any immigration advice -- is barred because Padilla, which imposes an obligation on counsel to provide affirmative immigration advice in most instances, has been held in Chaidez to have only prospective effect.
In the appeal brief, defense counsel argues that "[a]t no time prior to or during the plea hearing did [her attorney] counsel her regarding the immigration consequences of her plea agreement, except to tell her that since she was receiving a probationary sentence that she would not be subject to deportation" (emphasis added). In support, defense counsel cited only to the PCR petition, which contains no such sworn statement; defendant swore only that her trial attorney gave no deportation advice at all. This unsupported factual argument was repeated throughout the appeal brief. We note also that defendant's PCR attorney in the trial court — not the same as present counsel -- also repeatedly asserted that defendant was misinformed as opposed to uninformed. All of these unsupported assertions have no bearing on the issues presented, see Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 358 (App. Div. 2004), aff'd, 184 N.J. 415 (2005), cert. denied, 546 U.S. 1092, 126 S. Ct. 1042, 163 L. Ed. 2d 857 (2006), and are quite improper.
Regarding the 2004 matter, defendant asserted in her PCR certification that at her plea hearing:
my attorney who does not speak Spanish was unable to clearly communicate with me about the consequences of my plea agreement, and therefore was unable to advise me to consult with an immigration attorney.
In fact, my attorney provided no guidance or counsel, and merely walked me through the steps of accepting the plea.
At the time of the plea agreement and with the assistance of a court interpreter, I was advised for the first time by the [c]ourt that I may be deported as a result of my plea agreement and sentence. However, at no time was I provided the opportunity to speak with an immigration attorney or was it suggested that I had that opportunity to take.
[My attorney] should have advised me of the immigration consequences of my plea and to seek the advice of an immigration attorney and/or to take the opportunity to do so. [My attorney] provided no legal assistance in this regard and, as a result, I plead[ed] guilty.
[Emphasis added]
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
As for the 2006 matter, defendant similarly swore that her attorney -- the same attorney who represented her in the 2004 matter — "never advised me of . . . any immigration consequences."