On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 96-08-01096A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Parrillo and Sapp-Peterson.
In 1996, defendant Jaime A. Flores pled guilty, pursuant to a plea agreement, to possession of cocaine with intent to distribute within a school zone. In accordance with the plea deal, defendant received probation conditioned on 364 days in the county jail. About ten years later, on March 29, 2006, defendant moved to withdraw his guilty plea. In defendant's motion, he claimed that trial counsel was ineffective for not advising him that as a non-citizen a guilty plea could result in deportation. Judge Wertheimer denied defendant's motion, and defendant appeals. We affirm.
According to defendant, his plea counsel advised him "that the guilty plea was in [his] best interests." Question seventeen of the plea form asked whether defendant was aware that a guilty plea had deportation consequences. In response to this question, counsel circled "N/A" on the plea form. According to defendant neither of his counsel "ever discussed the issue of whether [his] guilty plea could result in deportation consequences. Both suggested that [he] plead guilty." Moreover, "[t]he judge never warned [defendant] of the deportation consequences of [his] plea[,and] [b]oth of [defendant's] plea counsel were aware that [he was] a permanent resident (green card holder)."
Defendant "first became aware of the threat of deportation when [he] was detained by Immigration at Newark Airport in June, 2003, after arriving at Newark after a trip to Mexico with [his] wife, a United States Citizen." According to defendant's certification, he "was subsequently placed in removal proceedings to remove [him] to El Salvador." Defendant asserts that he is "currently subject to a deportation order." About three years after being detained at Newark Airport, defendant filed the motion that was subsequently denied by Judge Wertheimer and is the subject of this appeal.
We agree completely with Judge Wertheimer's resolution of this matter. As the judge noted, defendant's motion must be considered a petition for post-conviction relief (PCR), and is therefore barred by the five-year time limitation of R. 3:22-12. Furthermore, because the possibility of deportation is an unrelated collateral consequence of a guilty plea, we cannot fault the trial judge for not discussing this likelihood with defendant during the plea colloquy.*fn1 State v. Heitzman, 107 N.J. 603, 604 (1987); State v. Chung, 210 N.J. Super. 427, 433 (App. Div. 1986).
Also, this case is distinguishable from State v. Garcia, 320 N.J. Super. 332 (App. Div. 1999), relied upon by defendant, where we remanded for consideration of trial counsel's effectiveness, because here defendant has not alleged that counsel misinformed him regarding any possible deportation. In Garcia, the N/A response to question seventeen on the plea form supported defendant's contention that he was specifically misinformed about deportation by his counsel. Here, although defendant certifies that both of his plea counsel "were aware that [he was] a permanent resident (green card holder)," he makes no claim of receiving specific misinformation from the defense attorney beyond circling N/A on the plea form.
Defendant, who reads and understands English, must be charged with understanding the warning contained in question seventeen that a guilty plea for non-citizens could result in deportation.
Furthermore, in both Garcia and State v. Vieira, 334 N.J. Super. 681 (Law Div. 2000), also relied upon by defendant, the defendants did not wait ten years from their conviction to seek vacation of their guilty pleas. In both cases, the PCR petitions were timely filed.
Finally, as noted by Judge Wertheimer, defendant's plea deal was quite favorable. It is at least questionable whether defendant would have gone to trial had he been advised of any possible deportation. After all, a trial loss would not only have subjected him to deportation but would also raise the probability of a significantly more severe sentence. See N.J.S.A. 2C:35-7, -12.