Opinion
DOCKET NO. A-2178-13T3
09-06-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. XAVIER AGREDA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, and on the brief). Gubir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Kennedy and Gilson. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-10-1731. Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, and on the brief). Gubir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Special Deputy Attorney General/Acting Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant, Xavier Agreda, appeals the July 26, 2013, order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons set forth herein, we reverse and remand for an evidentiary hearing.
We derive the following facts from the record. Between December 2005 and February 2006, defendant engaged in sex with a minor, who was born in 1992. A grand jury indicted him for first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(2)(a) (Count One); second-degree sexual assault, contrary to N.J.S.A. 2C:14-2c(4) (Count Two); second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (Counts Three and Four); and third-degree aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3a (Count Five).
At the plea hearing, defendant testified that he initialed and signed the plea form, where he answered the following: "No" to question 17a that asked if he was a citizen of the United States; "Yes" to question 17b that asked whether he understood if he was not a citizen or national he "may" be deported by virtue of his guilty plea; "Yes" to question 17c that asked whether he understood if his plea was to a crime considered an "aggravated felony" under federal law he would be subject to deportation/removal; and "Yes" to question 17d that asked whether he understood he had the right to seek legal advice on his immigration status. The court advised defendant, "it is most likely and it is — and it will happen, that there will be immigration and naturalization ramifications. There may — there will be a removal proceeding at some point because you're pleading guilty to a second degree charge." Defendant confirmed his understanding.
Prior to sentencing, defendant filed a motion to withdraw his guilty plea, which was denied. On January 24, 2011, he was sentenced to a five-year suspended sentence as well as the provisions of Megan's Law, N.J.S.A. 2C:7-1 to -23.
Instead of filing a direct appeal, defendant filed a PCR petition on January 17, 2013, claiming his trial counsel advised him the immigration consequences of his guilty plea would be less severe because he had been sentenced to a suspended term, and he relied on this advice in accepting the plea. In his petition, defendant sought to set aside his guilty plea based on defense counsel's ineffective assistance in failing to advise him of the mandatory deportation consequences of his guilty plea. Defendant argued he would not have pled guilty and would have gone to trial had he known his deportation was certain. The court denied his petition without an evidentiary hearing, finding that defendant was aware of the deportation consequences of his plea. This appeal followed.
On appeal, defendant reiterates the arguments made to the trial court. Specifically, he requests a remand for an evidentiary hearing as to whether, and to what extent, defense counsel provided erroneous and misleading information regarding the deportation consequences of his plea.
Our Supreme Court has held that when a guilty plea is involved, a defendant must satisfy two criteria to set aside the plea based on ineffective assistance of counsel. State v. Nunez-Valdez, 200 N.J. 129, 139 (2009). In particular, the defendant must demonstrate that "(i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." Ibid. (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)); see also State v. Parker, 212 N.J. 269, 279-80 (2012). The Court has also held that the second prong is satisfied where, the defendant shows that the plea resulted from "inaccurate information from counsel concerning the deportation consequences of his plea." Nunez-Valdez, supra, 200 N.J. at 143.
The United States Supreme Court has clarified that counsel's duty is not limited to avoiding false or misleading information, but also includes an affirmative duty to inform a defendant entering a guilty plea of the relevant law pertaining to mandatory deportation. Padilla v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 295-96 (2010). "[A]n attorney's failure to advise a noncitizen that a guilty plea will lead to mandatory deportation deprives the client of the effective assistance of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J. Super. 329, 331 (App. Div. 2012) (citing Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295-96). Accordingly, a defendant considering whether to plead guilty to an offense must "receive[] correct information concerning all of the relevant material consequences that flow from such a plea." State v. Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012) (citing Nunez-Valdez, supra, 200 N.J. at 138).
Moreover, we have held that "[i]n the numerous situations in which the deportation consequences of a particular plea are unclear . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." State v. Blake, 444 N.J. Super. 285, 295 (App. Div.) (quoting Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296), certif. denied, ___ N.J. ___ (2016). Yet, "where the terms of the relevant immigration statute are succinct, clear and explicit in defining the removal consequence, then an attorney is obliged to be equally clear." Ibid. (quoting Padilla, supra, 559 U.S. at 368-69, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295-96).
Our State Supreme Court, interpreting Padilla, has held that an attorney must "point out to a noncitizen client that he or she is pleading to a mandatorily removable offense" and that "[t]he failure to do so constitutes deficient performance of counsel." Id. at 296 (quoting State v. Gaitan, 209 N.J. 339, 380 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013)). The Court added, "even if removal is not mandated in the sense that a state offense is not identified on published lists of offenses equating to aggravated felonies or like mandatorily removable offenses, counsel must highlight for noncitizen clients that entering a guilty plea will place them at risk of removal." Ibid. (quoting Gaitan, supra, 209 N.J. at 381). Counsel must also instruct clients to seek immigration counseling. Ibid.
In Gaitan, our Supreme Court stated that Padilla does not apply to defendants whose convictions became final before March 31, 2010. Gaitan, supra, 209 N.J. at 371-74. As defendant in this case was sentenced in 2011, Padilla controls.
Here, defendant pled guilty to second-degree endangering the welfare of a child. The immigration consequences of crimes against children described in 8 U.S.C.A. § 1227(a)(2)(E)(i) and § 1227(a)(2)(A)(iii), aggravated felony, indicate that defendant is subject to removal. Because the deportation consequences are truly clear, defendant's attorney was obliged to provide advice that was equally clear. The record before us, other than defendant's bald assertion, does not indicate what, if any, advice his attorney gave him regarding the mandatory deportation consequences of his plea.
Section 1227(a)(2)(E)(i) provides in relevant part that "[a]ny alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable."
8 U.S.C.A. § 1101(a)(43) states that "aggravated felony" means "murder, rape, or sexual abuse of a minor," among other things. --------
Defendant contends "in his discussions with his counsel about his plea, he was told that his immigration consequences would be less severe since he was not going to jail, but instead facing only a suspended sentence." Although we recognize the colloquy between the court and defendant at the plea hearing addressed the immigration consequences of his plea, that was not a sufficient substitute for appropriate advice from defendant's counsel. Moreover, the record does not clearly establish that the exchange clarified any potential misadvice from defense counsel. Thus, two fact questions must be addressed at the evidentiary hearing: (1) Did defense counsel provide misadvice to defendant? and (2) Was any potential misadvice clarified by the exchange with the court, such that defendant understood the immigration consequences of his plea?
Therefore, the Law Division judge, after an evidentiary hearing, shall determine the advice actually given to defendant by his attorney and its consequences with regard to his PCR petition.
Reversed and remanded for an evidentiary hearing. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION