Opinion
DOCKET NO. A-1289-13T1
03-31-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FABIO VELEZ, Defendant-Appellant.
Clifford E. Lazzaro, attorney for appellant. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-10-4179. Clifford E. Lazzaro, attorney for appellant. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Fabio Velez appeals from the trial court's August 8, 2013, order denying, after an evidentiary hearing, his petition for post-conviction relief (PCR). Having considered defendant's arguments in light of the record and the applicable legal principles, we affirm.
I.
Defendant challenges his July 14, 1998, judgment of conviction, after a guilty plea, of first-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5(b). Pursuant to his plea agreement, the court sentenced defendant as a second-degree offender to a term of seven years, with a thirty-month period of parole ineligibility.
Defendant also pleaded guilty to second-degree conspiracy, N.J.S.A. 2C:5-2, which was merged into the drug-related count.
The record reflects that defendant was present in an apartment in Newark when law enforcement officers executed a search warrant. They found several small bags of cocaine hidden in defendant's underwear. Police confiscated over sixteen ounces of cocaine in the apartment. The search warrant apparently was based on controlled purchases of cocaine from two persons other than defendant. Defendant and three others were named in the indictment. Defendant was charged in five out of eleven counts with second-degree conspiracy, N.J.S.A. 2C:5-2; third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1); first-degree possession with intent to distribute, N.J.S.A. 2C:35-5(b); third-degree possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7; and fourth-degree possession of drug paraphernalia with intent distribute, N.J.S.A. 2C:36-3.
In his allocution, defendant admitted that he lived in the apartment where the cocaine was seized; he possessed cocaine on his person with the intent to distribute; the cocaine was packaged in several small bags that a co-defendant gave to him; he was aware that there were over five ounces of cocaine in the apartment and he intended to distribute the cocaine. Although he initially hesitated to implicate the other named defendants, he eventually did so, admitting they knew the cocaine was in the apartment and they agreed to distribute the drugs.
At the time of his plea, defendant was twenty-one years old and a citizen of Colombia. He allegedly had an alien resident card. He acknowledged that he reviewed the plea form with his attorney, he understood the questions, and he answered the plea form's questions truthfully. Neither the court nor counsel directly addressed defendant's immigration status, or the impact of his conviction. However, defendant affirmatively answered question seventeen of the plea form, which asked him to acknowledge that he "may be deported by virtue of [his] plea of guilty." The subject of immigration consequences of his conviction was not raised at sentencing, although the court noted that defendant was not a United States citizen. Defendant was reportedly removed from the United States in 2000. He filed his petition in September 2012.
We note that defendant testified with the assistance of an interpreter, but the plea form was in English.
There are indications in defendant's verified petition that he had reentered the country after he was deported. For example, he certified that he consulted with an immigration lawyer in New York City. His verification was witnessed by a New Jersey notary public.
Defendant asserted in his petition that his plea counsel provided ineffective assistance of counsel by affirmatively misinforming him that he would not be deported after his conviction. Defendant asserted that he expressed concern to his plea counsel about the potential consequences of his plea and that he would not have entered a plea had he known he would certainly be deported. His trial counsel allegedly told him he would not be deported because his conviction was his first, notwithstanding his response to question seventeen. Defendant asserted:
On the date of the Plea Hearing (June 1, 1998), [counsel] reviewed the Plea Form with me prior to the hearing. Number 17 of the Plea Form asked:
"Do you understand that if you are not a United States citizen or national you may be deported by virtue of your plea of guilty?"
That question prompted me to again ask [counsel] about the impact that a guilty plea would have on my immigration status. With respect to that question, I said to [counsel] that I would not plead guilty if I
would be deported. I specifically asked him if I would be deported by pleading guilty. [Counsel] responded by telling me that I would not be deported. He told me the wording of the question was whether a Defendant knew he "may be deported". He told me that I would not be deported because this was my first offense. He then reiterated that I had no alternative but to plead guilty.Defendant also asserted he was innocent of the charges to which he pleaded guilty.
Defendant also asserted that plea counsel was ineffective by informing him that the case against him was strong, and by failing to advise him that he could have pursued a motion to "challenge the sufficiency of the Indictment" and "to challenge the Search Warrant by filing a motion to suppress." Defendant does not pursue those grounds for relief on appeal.
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Judge Verna G. Leath found that defendant had demonstrated excusable neglect for filing his petition beyond the five-year limitations period. See R. 3:22-12. The judge ordered an evidentiary hearing after finding that defendant had established a prima facie case of ineffective assistance of counsel. The court applied the well-established two-prong test under Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (requiring a showing that (1) counsel's deficient performance resulted in errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different). The court found that an evidentiary hearing was warranted to receive testimony from defendant's plea counsel regarding the allegations that he affirmatively misadvised defendant.
Defendant's plea counsel was the sole witness at the subsequent evidentiary hearing. Counsel testified that he did not specifically recall the details of defendant's case, which he handled fifteen years earlier, or the conversations he and defendant had. However, he testified about his practices at the time. Counsel asserted that based on his past practice, he was certain that he reviewed discovery with defendant. He also stated that he would have discussed the strengths and weaknesses of the State's case.
Counsel stated that it was his practice to inquire whether his client was a citizen of the United States. He testified that he apprised defendant of the risk of deportation, because he would not have circled the "yes" answer to question seventeen had he not reviewed the question with defendant.
Counsel conceded that around the time defendant pleaded guilty, he may have told a client, "depending on the circumstances," that he or she had not committed a deportable offense, "[a]nd I may have told the defendant they'd be okay." But, he stated he did not recall ever providing such assurances to a first-degree offender because a "first degree offense is an aggravated felony in my understanding based on the old laws."
Asked if he ever advised defendant "that because of his lack of prior criminal history, he would not be deported by virtue of his guilty plea," counsel responded:
I find that statement not believable as something that I would ever say, because I don't see the logic behind -- I don't see the logic behind whether it's your first offense, because that would also suggest that if he was convicted of a homicide that he wouldn't get deported. So first offense, does not seem to be congruous with me making that statement.Asked again if he ever told defendant that "he would not be deported because it was his first offense," counsel replied, "I don't recall saying that. And I don't imagine a scenario where I would say that."
Judge Leath credited plea counsel's testimony and rejected defendant's allegation that counsel affirmatively misinformed him that he would not be deported.
During the evidentiary hearing, [counsel], the Petitioner's trial counsel, stated on the record that in his practice if a defendant is convicted of a first degree crime, he always advises the client that there are consequences of removal. [Counsel] also testified that he never advised the Petitioner that he would not get deported because it was his first offense. He used the example of if the Petitioner was
convicted of homicide as his first offense to illustrate this. This Court finds [counsel's] testimony credible. The Petitioner has offered no other evidence, aside from his own assertions . . . of the alleged misrepresentation of removal consequences.
As such, this Court finds that the Petitioner was not denied effective assistance of counsel because his counsel did not make a misrepresentation, nor misadvise the petitioner that he would not be subject to removal.
This appeal followed.
II.
We defer to the trial court's factual findings after an evidentiary hearing on a PCR petition. State v. Nash, 212 N.J. 518, 540 (2013). We shall uphold the PCR court's findings if they are supported by sufficient credible evidence in the record, mindful of the court's opportunity to make credibility determinations based on first-hand observations of witnesses' demeanor. Ibid. On the other hand, we need not defer to the PCR court's interpretation of the law, which we review de novo. Id. at 540-41.
A defendant is entitled to effective assistance of counsel in the process of plea negotiation. Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1405, 182 L. Ed. 2d 379, 387 (2012). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398, 410 (2012).
Beginning with the United States Supreme Court's decision in Padilla v. Kentucky, 559, U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), "an attorney must tell a client when removal is mandatory—when consequences are certain" in order to provide effective assistance of counsel. State v. Gaitan, 209 N.J. 339, 380 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). However, Padilla was not given retroactive effect. Chaidez v. United States, 568 U.S. ___, ___, 133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149, 162 (2013). Rather, for a pre-Padilla guilty plea to establish ineffective assistance of counsel when defendant pleaded guilty, a petitioner must establish that his attorney affirmatively misadvised his client of the immigration consequences of his or her conviction. See Gaitan, supra, 209 N.J. at 351-52; State v. Nuñez-Valdéz, 200 N.J. 129, 139-40 (2009).
Applying these principles, we discern no basis to disturb Judge Leath's finding of fact that plea counsel did not affirmatively misadvise defendant that he would not be deported, and her conclusion of law that defendant was not entitled to PCR. As we have set forth above, plea counsel testified that it was his regular practice to inquire about a client's immigration status and to inform a non-citizen client that he or she may be deported. Counsel was certain he did so in this case, based on the response recorded on the plea form. Inasmuch as defendant was going to plead to a first-degree crime, plea counsel rejected the possibility that he affirmatively told defendant that he would not be deported because his conviction was his first offense. In sum, there was no ineffective assistance of counsel under then-prevailing standards.
To the extent not addressed, defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. 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