Opinion
DOCKET NO. A-1654-14T3
06-08-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CARSON E. LUBIN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-02-0532. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, 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 Carson Lubin appeals from the October 20, 2014 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We reverse and remand for further proceedings.
We derive the following facts from the record. A grand jury indicted defendant for third-degree conspiracy to possess and possess with intent to distribute a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (count two); third-degree possession with intent to distribute a CDS (heroin), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count three); fourth-degree conspiracy to possess and possess with intent to distribute a CDS (heroin), N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(a)(1) (count five); fourth-degree distribution of a CDS (marijuana), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12) (count six); fourth-degree possession with intent to distribute a CDS (marijuana), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(12) (count seven); second-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5(b) (count eight); fourth-degree possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count nine); and second-degree possession of a firearm while committing a drug offense, N.J.S.A. 2C:39-4.1 (count ten).
In exchange for the State's agreement to recommend a five-year term of imprisonment with three years of parole ineligibility, on September 27, 2010, defendant pled guilty to fourth-degree conspiracy to possess and possess with intent to distribute heroin (count five); possession with intent to distribute marijuana (count seven); and second-degree possession of a weapon without a permit (count eight). At the plea hearing, defendant testified that he initialed and signed the plea forms, where he answered "No" to question 17a that asked if he was citizen of the United States, and "Yes" to question 17b that asked whether he understood that if he was not a United States citizen or national he "may" be deported by virtue of his guilty plea.
Defendant utilized the October 8, 2008 revision of the plea form, which only contained questions 17a and b. See Administrative Directive #14-08, "Criminal Plea Forms and Judgment of Conviction" (Oct. 8, 2008), http://www.judiciary.state.n j.us/directive/2008/dir_14_08.pdf. Subsequent revisions contained additional questions regarding immigration consequences. See Administrative Directive #08-09, "Criminal Plea Forms- Amendments to Two Forms" (Sept. 4, 2009), http://www.judiciary.state.nj.us/directive/2009/dir_08-09.pdf; Administrative Directive #05-11, "Criminal Plea Form- Question Regarding the Immigration Consequences of a Guilty Plea" (Aug. 1, 2011), http://www.judiciary.state.nj.us/directive/2011/dir_05_11.pdf.
In response to the court's inquiry, defendant testified that he was from Haiti and understood that by pleading guilty he "may" be deported and there was a "possibility" that because of the charges, he "could" be deported. The court advised defendant of his right to consult an immigration attorney because of the "possible" deportation consequences of his plea. The record does not reflect what, if any, advice defense counsel gave defendant regarding the deportation consequences of the plea. The judge accepted the plea and later sentenced defendant in accordance with the plea agreement.
Defendant did not appeal. Instead, on October 24, 2013, he filed a PCR petition, seeking 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 the 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. Defendant 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.
As our Supreme Court has held,
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.
[State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (second alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994))].see also State v. Parker, 212 N.J. 269, 279 (2012). A guilty plea could be vacated if a defendant shows that plea resulted from "inaccurate information from counsel concerning the deportation consequences of his plea." Nuñez-Valdéz, 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, 296 (2010). Counsel'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 296). 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).
"In 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. 2016) (quoting Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296). "However, 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 has interpreted Padilla to require an attorney 'to point out to a noncitizen client that he or she is pleading to a mandatorily removable offense . . . .'" 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 failure to do so constitutes 'deficient performance of counsel.'" Ibid. (quoting Gaitan, supra, 209 N.J. at 380). "However, '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. (emphasis added) (quoting Gaitan, supra, 209 N.J. at 381). "Counsel must also advise clients to seek immigration counseling." Ibid.
Here, defendant pled guilty to conspiracy to possess and possess with intent to distribute a CDS, possession with intent to distribute a CDS, and possession of a weapon without a permit. The immigration consequences of both a drug offense described in 8 U.S.C.A. § 1227(a)(2)(B)(i) and certain firearms offenses described in 8 U.S.C.A. § 1227(a)(2)(C) command removal. Because the deportation consequence was truly clear, defendant's attorney was obliged to give advice that was equally clear. Id. at 296 (quoting Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296). The record before us does not indicate what, if any, advice defendant's attorney gave regarding the mandatory deportation consequence of his plea. Accordingly, we reverse and remand for an evidentiary hearing.
8 U.S.C.A. § 1227(a)(2)(B)(i) provides as follows:
Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in [21 U.S.C.A. § 802]), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
8 U.S.C.A. § 1227(a)(2)(C) provides as follows: Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in [18 U.S.C.A. § 921(a)]) in violation of any law is deportable.