Opinion
DOCKET NO. A-0881-10T4
10-02-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DANY A. ARANGO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 02-03-7230 and 04-03-0648.
Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Dany A. Arango appeals the trial court's order dated April 29, 2010 denying his petition for post-conviction relief ("PCR"). We affirm.
Defendant immigrated to the United States from Colombia in 1992. He was a lawful resident of this country but not a United States citizen.
In May 2003, defendant entered into a negotiated plea of guilty to fourth-degree shoplifting, N.J.S.A. 2C:20-11b(2), having admittedly stolen with a friend about $325 worth of merchandise from the Macy's retail store. During the course of the plea colloquy, defendant falsely asserted that he was a United States citizen. The trial judge accepted the plea. Thereafter, in August 2003, the judge sentenced defendant to a one-year period of probation, consistent with the terms of the plea agreement.
Defendant committed another fourth-degree shoplifting offense in November 2003, taking merchandise in excess of $200 in value from the Sephora store. Defendant reached a negotiated plea agreement with the State in this case as well. The plea was presented to the trial court in May 2004.
At this second plea proceeding, defendant provided a different response to the court about his status, stating that he was not a United States citizen. The plea form that was in effect at that time provided in Question 17 that defendant "may" be deported as the result of his conviction. The judge who accepted the second plea covered this issue explicitly on the record, asking defendant from the bench if he understood that he could be deported as a result of his guilty plea. In July 2004, the trial court sentenced defendant, in accordance with the second plea agreement, to ninety-one days in the county jail.
Several years later, defendant became aware that he was subject to mandatory deportation by federal immigration authorities as a result of his guilty pleas to these two shoplifting offenses. Consequently, in November 2009 defendant filed a PCR petition with the trial court, seeking initially to vacate his May 2004 guilty plea. In support of his petition, defendant supplied a certification alleging that his prior attorney in the latter shoplifting case was constitutionally ineffective because the attorney allegedly never advised him that deportation was a mandatory consequence of his guilty plea. Defendant asserts that if he had known that deportation was mandatory, he would not have entered into either the 2003 or the 2004 guilty pleas.
At oral argument before the PCR judge, defendant's counsel sought relief from both the 2003 guilty plea and conviction and the 2004 guilty plea and conviction, in both instances claiming ineffective assistance of counsel in failing to advise defendant properly about deportation consequences.
According to his certification dated November 23, 2009, defendant was being detained at the time in Hudson County Jail pending his anticipated deportation. It is unclear from the record on appeal whether he has now been actually deported.
After hearing oral argument on the PCR application, the trial court denied it in an oral ruling. The judge emphasized the fact that defendant had initially stated falsely, at the time of the plea to the first shoplifting offense, that he was a United States citizen, and hence no one could be faulted for failing to advise him of any deportation consequences. The judge also found no basis to award relief from the second shoplifting conviction.
The PCR judge was the same judge who had accepted defendant's plea to the first shoplifting offense in 2003, and who imposed the sentence on that offense. A different trial judge took the 2004 plea and imposed the sentence on the second shoplifting offense.
Pursuant to the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
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).
In the past few years, these general principles have been spotlighted in several federal and state opinions, within the particularized context of defendants claiming that they had been deprived of effective representation when entering into guilty pleas to offenses that exposed them to deportation.
The key case on this subject, upon which defendant in the present case relies and which is critical to his arguments, is the United States Supreme Court's opinion in Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). Padilla held that, in order to fulfill the Sixth Amendment obligation to provide effective assistance of counsel, a criminal defense attorney must advise a client when removal from the United States is a mandatory consequence of a guilty plea. Id. at ___, 130 S. Ct. at 1486, 176 L. Ed. 2d at 299. The Supreme Court of New Jersey reached a comparable, albeit more limited, conclusion the previous year in State v. Nuñez-Valdéz, 200 N.J. 129, 140-43 (2009), holding that it is ineffective assistance for defense counsel to provide misleading advice and misinformation to a defendant about deportation consequences.
In appealing the denial of PCR relief here, defendant raises the following points:
POINT I
THE PCR COURT SHOULD HAVE GRANTED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
POINT II
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
POINT III
THE GUILTY PLEAS MUST BE VACATED BECAUSE THE DEFENDANT WAS NOT PROPERLY INFORMED ABOUT
THE IMMIGRATION CONSEQUENCES OF THE SHOPLIFTING CONVICTIONS.
POINT IV
REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS RESULTED IN MANIFEST INJUSTICE.
All of defendant's arguments hinge upon a legal premise that the 2010 ruling in Padilla applies retroactively to his guilty pleas and convictions dating back to 2003 and 2004. That premise of retroactivity is incorrect under the present case law of this State.
In State v. Gaitan, 209 N.J. 339, 373 (2012), the Supreme Court of New Jersey held that Padilla established a new rule of law, one that is not retroactively applicable to cases that were not on direct appeal when Padilla was decided on March 31, 2010. Because defendant never filed a direct appeal of either of his shoplifting convictions, those convictions became final in, respectively, 2003 and 2004, long before Padilla was decided. We discern nothing in the pre-Padilla law in New Jersey that was in effect as of 2003 and 2004 that would entitle defendant to collateral relief from his convictions because of unanticipated deportation consequences.
Gaitan is presently the governing case in this State on Padilla's non-retroactivity, and we are bound to follow it. State v. Barros, 425 N.J. Super. 329, 331-32 (App. Div. 2012) (applying Gaitan's non-retroactivity holding, and thereby upholding the denial of PCR relief to a defendant whose plea and conviction became final before March 31, 2010).
We acknowledge that the Third Circuit Court of Appeals in United States v. Orocio, 645 F.3d 630, 641 (3d Cir. 2011), has held, contrary to Gaitan, that Padilla does apply retroactively. As noted in Barros, supra, 425 N.J. Super. at 334-34 n.4, this difference in approaches may entitle some New Jersey defendants facing or subjected to deportation to pursue habeas corpus review in the federal courts. The question of Padilla's retroactivity or non-retroactivity is expected to be resolved by the United States Supreme Court in Chaidez v. United States, ___ U.S. ___, 132 S. Ct. 2101, 182 L. Ed. 2d 867 (2012) (granting certiorari).
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Moreover, as the PCR judge aptly noted, the fact that defendant misrepresented his citizenship at the 2003 plea hearing eliminates any tenable claim that his first counsel was ineffective. Any error in how his case was handled was essentially invited by defendant's own affirmative misstatement to the court and counsel under oath. See, e.g., State v. Sykes, 93 N.J. Super. 90, 95 (App. Div. 1966) (delineating the "invited error" doctrine applicable in criminal cases); see also State v. Jenkins, 178 N.J. 347, 359 (2004) (same). That being the case, it is inconsequential whether defendant's second attorney in 2004 provided incorrect or insufficient advice about deportation consequences, because the 2003 shoplifting offense alone is apparently sufficient to expose him to mandatory deportation.
The remaining arguments raised by defendant, including his claim that the PCR judge should have conducted an evidentiary hearing, lack sufficient merit to be discussed in this 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