Opinion
DOCKET NO. A-1633-13T4
09-29-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CARLOS MATEO-PEREZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Kevin J. Murray, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Hoffman. On appeal before Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 98-08-1228. Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Kevin J. Murray, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Carlos Mateo-Perez appeals from the June 25, 2013 Law Division order denying his petition for post-conviction relief (PCR). Defendant argues primarily that his plea attorney rendered ineffective assistance of counsel by failing to investigate the victim as a potential witness, and that the PCR judge erred by denying his motion to withdraw his 1998 guilty plea. We affirm.
I.
We discern the following facts from the record. On April 13, 1998, police responded to the home of S.L. on a report of domestic violence. S.L. had a previous relationship with defendant that resulted in a restraining order against him. S.L. reported that defendant had threatened, "If you do not allow me to come into this apartment I will kill you." Defendant resisted arrest, injuring two police officers. The officers alleged that during the altercation defendant removed a container from his pocket and threw it under the sink. The container held 0.89 grams of cocaine in aluminum foil packets.
On December 7, 1998, defendant pled guilty to one count of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1), and two counts of third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a). Defendant signed a written plea form on the record. Question seventeen 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 guilty plea?" Defendant circled "YES." At the plea hearing, defendant declined the opportunity to ask the judge any questions about the plea form.
On February 19, 1999, the court sentenced defendant to 180 days in the county jail and three years of probation. Defendant did not file a direct appeal or a timely petition for PCR.
In December 2012, as a result of this conviction, defendant was detained for deportation to the Dominican Republic. On December 27, 2012, thirteen years after his convictions, defendant filed the instant petition for PCR and sought to vacate his guilty plea. Defendant relied on a certification from S.L. attributing possession of the cocaine to defendant's cousin, now deceased, and alleged that plea counsel failed to provide effective assistance by failing to interview S.L. On June 25, 2013, after briefing and oral argument, Judge Adam E. Jacobs issued a written opinion denying the petition.
In his opinion, Judge Jacobs found that Rule 3:22-12(a)(1) barred defendant's petition for PCR as untimely. The judge nevertheless addressed the merits of the petition, and found, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), defendant failed to demonstrate a prima facie showing of ineffective assistance of counsel. Moreover, the judge weighed the factors articulated in State v. Slater, 198 N.J. 145 (2009), and found defendant failed to demonstrate "'some plausible basis [to withdraw his plea], and his good faith in asserting a defense on the merits.'" Id. at 156 (quoting State v. Smullen, 118 N.J. 408, 416 (1990)).
II.
On appeal, defendant argues:
POINT I
TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO INVESTIGATE POTENTIAL DEFENSE WITNESSES AND THE PCR COURT ERRED IN REFUSING TO GRANT AN EVIDENTIARY HEARING ON THIS ISSUE.
POINT II
BASED ON DEFENSE COUNSEL'S INEFFECTIVE ASSISTANCE, DEFENDANT SHOULD BE ALLOWED TO WITHDRAW HIS PLEA.
POINT III
DEFENDANT'S CLAIM IS NOT TIME-BARRED UNDER [RULE] 3:22 SINCE IT ALLEGES A SIGNIFICANT VIOLATION OF HIS FUNDAMENTAL CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND BECAUSE THE DELAY IS DUE TO EXCUSABLE NEGLECT.
We affirm the denial of defendant's PCR petition, substantially for the reasons stated in Judge Jacobs' cogent opinion. We add these comments.
A defendant must bring a petition for PCR within five years of judgment or sentence, unless the petition alleges that the delay was due to defendant's excusable neglect. R. 3:22-12(a)(1). The time bar can also be disregarded where, under Rule 1:1-2(a), the defendant demonstrates an injustice by a preponderance of the credible evidence. State v. Mitchell, 126 N.J. 565, 579 (1992). These exceptions are only applied in extraordinary or exceptional circumstances, considering "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim . . . ." Id. at 577-80.
Here, defendant admits that at the time of the plea he understood the possibility of deportation. Defendant instead argues: (1) the extensive time between the plea and the deportation proceedings led defendant to believe that he would not be deported; and (2) defendant's claim of ineffective assistance of counsel is an egregious violation of fundamental constitutional rights. As to defendant's first argument, defendant's mistaken belief that the risk of deportation decreased with time was not the result of incorrect advice from defendant's counsel, and it does not constitute excusable neglect. Defendant knowingly chose to forego filing a timely petition for PCR, and the associated risk of resentencing after trial, for a known sentence and the risk of deportation.
As to defendant's second argument, defendant fails to "'establish, by a preponderance of the credible evidence, that he is entitled to [a relaxation of Rule 3:22-12.]'" Mitchell, supra, 126 N.J. at 579 (quoting State v. Marshall, 244 N.J. Super. 60, 69 (Law Div. 1990)). Defendant must demonstrate exceptional circumstances, weighing "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim . . . ." Id. at 580. Here, there has been an extensive thirteen year delay due to defendant's satisfaction with the plea sentence and mistaken belief as to the risk of deportation. The State's ability to litigate the case after this delay is severely prejudiced. As Judge Jacobs' noted, defendant's cousin, the person defendant now alleges possessed the cocaine, "will not be able to testify as he has been dead for five years."
III.
The PCR judge also correctly concluded on the merits that defendant failed to make out a prima facie case of ineffectiveness. A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel must show that: (1) counsel's performance was deficient; and (2) the deficiency prejudiced the defense. State v. Nash, 212 N.J. 518, 542 (2013) (citations omitted). With respect to a guilty plea, our Supreme Court has explained that
[t]o 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. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996) (first and third alteration in original) (quoting Tollett v. Henderson, 411 U.S. 258, 366, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973); Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).
In State v. Brewster, 429 N.J. Super. 387 (App. Div. 2013), we considered a similar petition for PCR. There, defendant Moses Brewster pled guilty to drug charges. Id. at 390-91. The federal government initiated deportation proceedings in 2010, and shortly thereafter Brewster filed a petition for PCR. Id. at 391. Brewster alleged that his attorney failed to properly predict or advise Brewster of the risk of deportation. Id. at 392.
Reviewing the relevant authority, we found that false or misleading advice regarding the risk of deportation, as well as a failure to give any advice, could give rise to a valid claim of ineffective assistance of counsel. Id. at 392-94 (citing Padilla v. Kentucky, 559 U.S. 356, ___, ___ 130 S. Ct. 1473, 1483, 1486, 176 L. Ed. 2d 284, 295, 299 (2010); State v. Gaitan, 209 N.J. 339, 381 (2012); State v. Nunez-Valdez, 200 N.J. 129, 143 (2009)). However, the affirmative obligation to provide deportation advice, imposed in 2010 by Padilla, supra, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 lacks retroactive effect. Chaidez v. United States, ___ U.S. ___, 133 S.Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013); Gaitan, supra, 209 N.J. at 372.
Returning to the facts of Brewster, supra, 429 N.J. at 396, we found that Brewster's trial counsel had not provided false or misleading advice. Moreover, we observed that the plea form was not constitutionally deficient, and that Brewster had indicated on the form that he understood the risk of deportation. Id. at 397. We therefore affirmed the Law Division's denial of Brewster's petition for PCR, finding the petition was both untimely and factually insufficient. Id. at 398.
Although ineffective assistance of counsel clearly implicates constitutional issues, defendant alleges that counsel failed to provide effective assistance by declining to investigate and interview S.L. First, while defendant and S.L. have since reconciled, this very incident arose out of S.L.'s call to the police to enforce her restraining order against defendant. S.L. was not a defense witness at the time of the plea, but rather a victim. Second, S.L.'s certification is suspect, due to the reconciliation between S.L. and defendant, and to S.L.'s attribution of the narcotics to a man now deceased. Third, even if S.L.'s allegations are credible, they are not exculpatory of the aggravated assault charges.
Therefore, defendant has not demonstrated that his plea counsel's performance was deficient and that there is a reasonable probability that, but for plea counsel's errors, defendant would not have pled guilty and he would have insisted on going to trial.
Similarly, the PCR court did not err in its evaluation of the factors articulated in Slater, supra, 198 N.J. 145, when it addressed defendant's request to withdraw his plea. Defendant seeks to withdraw his plea due to impending deportation. Defendant knowingly accepted the risk of deportation at the time of the plea. Therefore the nature and strength of defendant's reasons for withdrawal weigh against him. Id. at 159-60. Moreover, defendant's present claim of innocence is suspect, and addresses only the drug possession charge, leaving the two counts of aggravated assault uncontested. Ibid. We further note defendant's conviction was the result of a plea agreement and withdrawal of defendant's plea would result in unfair prejudice to the State. Id. at 160-61.
Finally, we reject defendant's argument the court erred in denying his petition without an evidentiary hearing. "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2014). Because defendant failed to establish a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION