Opinion
DOCKET NO. A-0065-10T2
06-04-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE NUNEZ-DELPRADO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Carchman.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-06-1079.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Jose Nunez-Delprado appeals from the denial of his post-conviction relief (PCR) petition. In his petition, defendant asserted that trial counsel's failure to advise him regarding the deportation consequences of his guilty plea constituted ineffective assistance. The judge held that because defendant stated under oath during the guilty plea colloquy that he was a United States citizen, trial counsel did not render ineffective assistance by failing to advise defendant of the deportation consequences of his plea. Although defendant's presentence report subsequently revealed defendant might not be a United States citizen, we agree with the judge's conclusion that counsel had no duty at the time defendant pled guilty to render advice on that issue. Accordingly, we affirm the denial of defendant's PCR petition.
I.
Defendant was charged in an indictment with fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3). Pursuant to a negotiated plea agreement, defendant entered a guilty plea to that charge on October 26, 2006. During the plea hearing, the judge specifically asked defendant, "Are you the [sic] citizen of this country?" Defendant answered "Yes, sir." Defendant also testified that he understood all of the questions on the plea form and that the answers he provided were truthful. The plea form's seventeenth question asked: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" Defendant answered "YES," thereby acknowledging that he understood he faced possible deportation if he was not a citizen.
The presentence report (PSR) that was prepared in anticipation of sentencing revealed defendant was not a United States citizen. The PSR stated defendant was born in Peru, emigrated to the United States in 1992, and was "legally residing here as a perman[e]nt resident." The PSR also noted that any conviction for an "aggravated felon[y] could make him subject to immigration violations [that could lead] to removal proceedings [pursuant to] the Immigration Act."
The record sheds no light on whether trial counsel noticed this information on the PSR. It is clear, however, that counsel made no mention of defendant's immigration status when defendant was sentenced on December 18, 2006, pursuant to the plea agreement, to a two-year term of non-custodial probation. Defendant did not file a direct appeal.
Although the record does not specify how defendant came to the attention of the immigration authorities, he was ultimately arrested by immigration officials who sought his deportation based on his 2006 conviction.
Defendant filed his PCR petition on November 23, 2009, alleging that he was never advised that he "would be deported or removed from the United States as a mandatory consequence of [his] guilty plea." Defendant further claimed that had he been advised of deportation consequences, he would not have entered a guilty plea.
In particular, in the certification that accompanied his PCR petition, defendant stated:
On December 18, 2006, I entered a plea with the expectation that I would receive a sentence of two years probation.
At no time was I ever properly advised that I would be deported or removed from the United States as a mandatory consequence of my guilty plea.
The only legal advi[c]e that I received regarding deportation was that I could face the possibility of deportation or removal from the United States as consequence of my guilty plea.
. . . .
Prior to entering this plea of guilty, I did not understand, because I was never told, that I would be deported, as a mandatory consequence of the plea.
The information that I was provide[d] was ambiguous, misleading and patently incorrect.
Question No. 17, on the LR-27 Plea form was misleading because it led me to believe that deportation was not mandatory and that I could have a chance of staying in the United States. Question No. 17 incorrectly advised me that I may be deported.
. . . .
This incorrect legal advice was a material part of my decision to accept the plea offer. I was incorrectly advised of the law. If I had known that I would be deported or the deportation was mandatory, I would not have entered the plea.
At the May 13, 2010 PCR hearing, Judge Donald Venezia found that defendant informed the court during the plea colloquy that he was a United States citizen. The judge also noted that defendant answered "YES" to question seventeen on the plea form instead of "N/A." Consequently, the judge found that defendant intentionally misrepresented to the court that he was a citizen. The judge noted that the PSR contained an asterisked comment explaining that an inquiry to Immigration Services revealed that defendant may, in fact, be a permanent resident subject to immigration violations should he be convicted of an aggravated felony. The court ruled that the failure of plea counsel to bring this asterisked comment to the court's attention at the sentencing proceeding did not constitute prima facie evidence of ineffective assistance that would justify an evidentiary hearing.
The judge also found that trial counsel was entitled to rely on defendant's sworn statement under oath during the plea colloquy that he was a United States citizen. The judge noted that counsel had no obligation to compel defendant to "prove" that he was a citizen, and that it was reasonable for counsel to rely on defendant's verbal affirmation.
At the conclusion of the PCR hearing, the judge also rejected defendant's claim that he would not have pled guilty had he been advised that his guilty plea would subject him to deportation. In reaching that conclusion, the judge observed that the plea agreement negotiated by counsel was extremely favorable, as it resulted in a probationary sentence even though defendant had three prior indictable convictions. The judge also noted that defendant had the benefit of reading question seventeen before he accepted the plea agreement. For all of those reasons, the judge rejected defendant's contention that trial counsel rendered ineffective assistance, and denied defendant's application to withdraw his guilty plea. The judge issued a confirming order on May 13, 2010. On appeal, defendant presents the following claims:
I. THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
II. THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.
II.
As is evident from the certification defendant filed in support of his PCR petition, he did not argue before the Law Division that his attorney provided incorrect legal advice on the subject of deportation. Instead, defendant argued that his attorney rendered no advice at all, leaving defendant to rely only on question seventeen of the plea form, which led him to believe that he might be deported, when in actuality his guilty plea to an aggravated felony created the certainty that he would be deported.
Defendant testified under oath during the plea colloquy in 2006 that he was a United States citizen. The question before us is whether counsel had any duty in 2006 to offer legal advice on the deportation consequences of defendant's guilty plea. While it is true that the PSR revealed that defendant was not a citizen, trial counsel had no obligation -- at the time the events in question occurred -- to offer any advice to his non-citizen client regarding the deportation consequences of his plea and impending conviction. State v. Gaitan, 209 N.J. 339, 372 (2012).
Although the United States Supreme Court held in Padilla v. Kentucky, 559 U.S. ____, ____, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 296 (2010), that the Sixth Amendment imposes an obligation on an attorney to advise a non-citizen client that he faced mandatory deportation by pleading guilty to an aggravated felony, our Supreme Court held in Gaitan, in the face of a conflict among the federal circuit courts of appeal, that Padilla announced a new rule of law that had no effect on guilty pleas entered prior to March 31, 2010, the day Padilla was announced. Gaitan, supra, 209 N.J. at 371-72.
To establish a prima facie case of ineffective assistance of counsel, defendant must show, at a minimum, that defense counsel's performance was indeed deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). A defendant must also satisfy the second Strickland prong, by demonstrating that he was prejudiced by such deficient performance. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Even if we were to assume that counsel's failure to carefully review the PSR satisfied the first prong of the Strickland ineffectiveness test, defendant cannot, however, meet the requirements of the second prong and demonstrate that he was prejudiced by this failure. This is because, even if counsel noticed from the PSR that defendant was not a citizen, counsel was not obligated, at the time the events in question occurred, to render any advice regarding the deportation consequences of the guilty plea. Gaitan, supra, 209 N.J. at 372.
Unquestionably, Padilla requires the rendering of affirmative advice when a guilty plea will inevitably lead to deportation. However, defendant pled guilty prior to the announcement of the United States Supreme Court's decision in Padilla and, therefore, Padilla has no application here. Ibid. Simply stated, in 2006, at the time defendant was sentenced, counsel had no duty to render advice on the deportation consequences of a guilty plea. Under such circumstances, counsel's silence on the subject did not constitute ineffective assistance. Ibid. The judge properly denied defendant's PCR petition.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELATE DIVISION