Opinion
DOCKET NO. A-2846-13T4
11-10-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAIME AGUIRRE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Complaint No. W-2006-25870-0714. Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jaime Aguirre appeals from the October 11, 2013 Law Division order, which denied his petition for post- conviction relief (PCR) following an evidentiary hearing. We affirm.
We derive the following facts from the record. In October 2006, defendant pled guilty to an amended charged of theft of movable property, a disorderly persons offense, N.J.S.A. 2C:20-3. At the plea hearing, defendant admitted he possessed a vehicle he should have known might be stolen. He was sentenced to a term of twenty-nine days in the county jail, with credit for time served, and an eighteen-month probationary term.
Defendant did not appeal. Instead, in January 2012, he filed a PCR petition, arguing that defense counsel rendered ineffective assistance by failing to inform him of the mandatory deportation consequences of his plea. In a supplemental brief, assigned counsel added that plea counsel misadvised defendant to plead guilty knowing that defendant was not a United States citizen.
Defendant asserted other claims of ineffective assistance of counsel that are not addressed in this appeal. Those issues therefore are deemed waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2015). --------
Following a hearing, at which defendant and defense counsel testified, in an October 11, 2013 order and written opinion, Judge Verna Leath denied the petition. The judge found that defense counsel did not misadvise defendant about the deportation consequences of his plea, but rather, gave defendant no advice at all. Accordingly, the judge concluded that defendant failed to establish the first prong of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) -- that counsel rendered ineffective assistance. On appeal, defendant reiterates the arguments made before Judge Leath.
Our Supreme Court has held that
to set aside a guilty plea based on ineffective assistance of counsel, a defendant must show 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.See also State v. Parker, 212 N.J. 269, 279 (2012). Defense counsel committed no error here.
[State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (second alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (internal quotation marks omitted).]
The Supreme Court of the United States has held that defense attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea. Padilla v. Kentucky, 559 U.S. 356, 367, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). However, the Court held that Padilla does not apply retroactively. Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013). Our Supreme Court held that Padilla is a new rule to be applied prospectively only. State v. Gaitan, 209 N.J. 339, 371-72 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); see also State v. Santos, 210 N.J. 129, 143 (2012).
Here, defendant pled guilty four years before Padilla. Therefore, his "guilty plea is not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Gaitan, supra, 209 N.J. at 361.
A limited exception to this rule arises when defense counsel provided affirmatively misleading advice about the immigration consequences of a guilty plea. See Nuñez-Valdéz, supra, 200 N.J. at 139-43 (where defense counsel informed the defendant there would be no immigration consequences arising from his plea); see also Santos, supra, 210 N.J. at 143. That exception is inapplicable here because defense counsel did not misinform defendant there would be no immigration consequences arising from his plea; rather, counsel gave defendant no advice at all about because deportation was not mandatory at the time of defendant's plea. Accordingly, defendant cannot establish that counsel rendered ineffective assistance by failing to inform him of the mandatory deportation consequences of his plea. See Gaitan, supra, 209 N.J. at 374.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION