Opinion
DOCKET NO. A-4860-12T2
05-11-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EDWIN SEVILLA-PEREZ, a/k/a EDWIN PEREZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the briefs). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-03-0168. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the briefs). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the briefs). PER CURIAM
Defendant Edwin Sevilla-Perez appeals from the July 26, 2012 Law Division order, which denied his petition for post- conviction relief (PCR) grounded on the ineffective assistance of counsel. We affirm.
We derive the following facts from the record. After consuming a large amount of alcohol, defendant drove a vehicle with a friend seated in the front passenger seat. Defendant struck two vans before striking a tree, seriously injuring himself and his friend. The collision occurred shortly after midnight on February 19, 2008, within 1,000 feet of a school. The friend died three days later from injuries sustained in the accident. Defendant had a blood alcohol concentration (BAC) of .289%, which is three times over the legal limit of 0.08%. N.J.S.A. 39:4-50. He also provided a confession to the police, admitting that he drove a motor vehicle after consuming a large amount of alcohol and that he had entered the United States illegally.
A grand jury indicted defendant for first-degree vehicular homicide while operating a motor vehicle in violation of N.J.S.A. 39:4-50 within 1,000 feet of school property, N.J.S.A. 2C:11-5(a) and N.J.S.A. 2C:11-5(b)(3)(a). In exchange for a guilty plea, the State originally offered defendant a twelve-year term of imprisonment subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defense counsel successfully negotiated a ten-year term of incarceration subject to NERA.
At the plea hearing on June 20, 2008, defendant acknowledged, under oath, that he reviewed the plea forms with defense counsel, understood everything on the forms and had no questions, gave truthful answers to the questions on the forms, and initialed and signed the forms. Defendant had answered "yes" to the question asking if he understood that he may be deported by virtue of his guilty plea if he was not a United States citizen or national. Defendant also acknowledged that he was not a United States citizen, he could be deported as a result of his guilty plea, and had no questions about deportation.
At sentencing on September 12, 2008, defense counsel requested a seven-year sentence and argued in favor of the following mitigating factors: factor 7, "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense," N.J.S.A. 2C:44-1(b)(7); factor eight, "[t]he defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1(b)(8); and factor eleven, "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents," N.J.S.A. 2C:44-1(b)(11). Counsel asked the court to sentence defendant a degree lower to seven years. The judge declined to find any mitigating factors and, after finding applicable aggravating factors, sentenced defendant in accordance with the plea agreement to a ten-year term of imprisonment subject to NERA.
Defendant did not appeal. Instead, he timely filed a PCR petition, arguing that defense counsel rendered ineffective assistance by failing to investigate the case and argue mitigating factors at sentencing. Defendant also argued he was misinformed about the mandatory deportation consequences of his plea.
In a comprehensive written opinion, Judge John H. Pursel found that defense counsel raised mitigating factors at sentencing and argued for a downward departure from a first-degree sentence. The judge also found that defendant was well-aware of the potential deportation consequences of his plea, as evidenced by the plea transcript. Consequently, the judge concluded that defendant failed to establish that counsel's performance was deficient and but for the deficiency defendant would not have pled guilty. This appeal followed.
"'[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. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (second alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (internal quotation marks omitted); see also State v. Parker, 212 N.J. 269, 279 (2012).
The record belies defendant's claim that defense counsel rendered ineffective assistance by failing to argue for mitigating factors at sentencing. Rather, the record confirms that defense counsel argued for mitigating factors and a downgrade. More importantly, the record confirms that by convincing the State to reduce the term of incarceration from twelve years to ten, counsel was indeed effective.
Although the judge did not specifically address defendant's claim that counsel failed to investigate the case, defendant does not "assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Given defendant's BAC of .289% and confession to the police, he has not demonstrated how an investigation would have had the likelihood of changing the outcome of this case.
As for the deportation consequences of his plea, the Supreme Court of the United States has held that defense attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea. Padilla v. Kentucky, 559 U.S. 356, 367, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). However, the Court held that Padilla does not apply retroactively. Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013). Our Supreme Court held that Padilla is a new rule to be applied prospectively only. State v. Gaitan, 209 N.J. 339, 371-72 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); see also State v. Santos, 210 N.J. 129, 143 (2012).
Here, defendant pled guilty two years before Padilla. Therefore, his "guilty plea is not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Gaitan, supra, 209 N.J. at 361.
A limited exception to this rule arises when defense counsel provided affirmatively misleading advice about the immigration consequences of a guilty plea. See Nuñez-Valdéz, supra, 200 N.J. at 139-43 (where defense counsel informed the defendant there would be no immigration consequences arising from his plea); see also Santos, supra, 210 N.J. at 143. That exception is inapplicable here because defense counsel did not misinform defendant there would be no immigration consequences arising from his plea; rather, counsel advised defendant of the potential immigration consequences of his plea and gave no advice at all about mandatory consequences because deportation was not mandatory at the time of defendant's plea. Accordingly, defendant cannot establish that counsel rendered ineffective assistance by failing to inform him of the mandatory deportation consequences of his plea. See Gaitan, supra, 209 N.J. at 374.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION