Opinion
DOCKET NO. A-6203-12T2
09-19-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL A. RICHARDS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Frederic M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment Nos. 99-02-0210, 00-01-0049, 00-11-1363, and 00-02-0197. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief). Frederic M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Michael A. Richards, who is Jamaican, appeals from a February 13, 2013 order denying his petition for postconviction relief (PCR) after an evidentiary hearing. Defendant claimed that his defense attorney misinformed him about the deportation consequences of his guilty plea to numerous drug charges. We affirm substantially for the reasons expressed in Judge Stuart A. Minkowitz's comprehensive oral opinion.
In 2002 defendant entered a guilty plea to portions of four Morris County indictments. On Indictment No. 99-02-0210, defendant entered guilty pleas to the following three counts: (1) third-degree possession of less than one-half ounce of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3); (2) fourth-degree possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5a(12); and (3) third-degree hindering apprehension, N.J.S.A. 2C:29-3b. On Indictment No. 00-01-0049, defendant pled guilty to second-degree possession of marijuana with the intent to distribute within 500 feet of a public housing project, N.J.S.A. 2C:35-7.1. On Indictment No. 00-11-1363, he pled guilty to third-degree bail jumping, N.J.S.A. 2C:29-7. Finally, on Indictment No. 0002-0197, defendant entered guilty pleas to the following three counts: (1) fourth-degree possession of a controlled substance with the intent to distribute, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(12); (2) fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and (3) fourth-degree resisting arrest, N.J.S.A. 2C:29-2a.
"NA" is circled on the guilty plea form in response to the statement "you understand that if you are not a United States citizen or national you may be deported." Defendant also answered affirmatively to his attorney's question at the plea hearing, "you're not a public office-holder, you are an American citizen. I discussed with you the doctrine of merger. Is that correct?" Later that year he was sentenced and then appealed only the sentence. Pursuant to an Excessive Sentence Oral Argument calendar under Rule 2:9-11, we remanded for resentencing because the original sentence exceeded the parameters of the plea agreement and plea transcript. State v. Richards, No. A-0885-02 (App. Div. May 4, 2004). Defendant was resentenced to an aggregate term of fifteen years with a mandatory minimum period of seven and one-half years, to be served concurrently to another custodial sentence he was then serving on unrelated drug charges.
Approximately six years after his resentencing, on May 18, 2011, defendant received notice from the Immigration and Customs Enforcement (ICE) that he was subject to deportation. Thereafter defendant filed a PCR application, claiming that his defense counsel misinformed him that his guilty pleas would not result in deportation.
By the time of the PCR hearing, defendant's attorney had died. Although defense counsel was therefore unavailable to testify, Judge Minkowitz held a hearing at which defendant testified via video conferencing from an ICE facility in Alabama. Defendant testified that he had told his lawyer that he was from Jamaica. He also testified, after saying he did not recall the plea proceedings in any detail, that he told his attorney that he was not a United States citizen. Judge Minkowitz found that statement incredible, especially in light of the conflicting evidence. Finding excusable neglect for his late filing, Judge Minkowitz considered the substance of defendant's allegations even though the PCR petition was filed beyond the five-year time-frame called for in Rule 3:21-12(a)(1).
Defendant raises the following issues on appeal:
POINT I: THE DEFENDANT[] WAS SUBJECTED TO A MANIFEST INJUSTICE BY ENTERING INTO A GUILTY PLEA BASED ON MISINFORMATION CONCERNING THE MATERIAL TERMS OF THE PLEA AGREEMENT.
POINT II: THE DEFENDANT[] WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION.
POINT III: THE DEFENDANT PROVIDED A FACTUAL BASIS FOR EXCUSABLE NEGLECT AND IN THE INTEREST OF JUSTICE SHOULD BE PERMITTED TO
PROCEED WITH HIS SUBSTANTIVE POST-CONVICTION RELIEF CLAIMS.
Because Judge Minkowitz determined that defendant demonstrated excusable neglect for the delay in filing his PCR petition, we need not address this point in defendant's appeal.
A defendant claiming that his attorney was ineffective in his representation "must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). The defendant also must demonstrate prejudice. A showing that the error complained of might conceivably have had some effect on the outcome of the trial is not sufficient. Ibid. "'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Hess, 207 N.J. 123, 146 (2011); State v. Winder, 200 N.J. 231, 254-55 (2009)). This two-pronged standard has been expressly adopted in New Jersey. Id. at 279 (citing State v. Fritz, 105 N.J. 42, 58 (1987)).
When a defendant has pled guilty he must satisfy the second prong by demonstrating that he would not have pled guilty had his lawyer not been ineffective. State v. DiFrisco, 137 N.J. 434, 457 (1994). After a guilty plea the PCR petition must demonstrate that he has met the following test:
[T]he first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, [411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973)], and McMann v. Richardson, [397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)]. The second, or "prejudice," requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.
[Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).]
The standard under State v. Nuñez-Valdéz, 200 N.J. 129 (2009), governs in this matter because defendant's guilty pleas were entered before the decision in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and the Padilla standard is not retroactive. Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013); State v. Gaitan, 209 N.J. 339, 371-72 (2012).
Padilla, which does not apply here, requires defense counsel to discuss a clear deportation issue arising from a guilty plea with the defendant, and the advice given must be correct. Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296.
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For petitioners who challenge the entry of a guilty plea prior to Padilla, the Nuñez-Valdéz standard explains that the focus should be "on whether counsel provided affirmative misadvice regarding the immigration consequences of a guilty plea." State v. Santos, 210 N.J. 129, 143 (2012) (emphasis added) (citing Gaitan, supra, 209 N.J. at 373-74). Under Nuñez-Valdéz, a defendant must demonstrate that his attorney provided false information about the immigration consequences of his guilty plea. Nuñez-Valdéz, supra, 200 N.J. at 140-42.
Judge Minkowitz reviewed the testimony and the documentary evidence, finding that defense counsel did not provide false information about the immigration consequences of defendant's guilty plea because defendant did not inform counsel that defendant was not a United States citizen. Judge Minkowitz reviewed both the law and the facts in his thorough oral opinion of February 13, 2013. His findings are supported by substantial credible evidence in the record.
If they are based upon substantial credible evidence in the record, we will not interfere with the findings of a judge sitting without a jury. State v. Locurto, 157 N.J. 463, 470-71 (1999). In matters such as these, "[a] disagreement with how the . . . judge weighed the evidence in a close case is not a sufficient basis for an appellate court to substitute its own factual findings to decide the matter." State v. Elders, 192 N.J. 224, 245 (2007).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION