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State v. Acosta


October 9, 2007


On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-09-1231.

Per curiam.


Submitted September 24, 2007

Before Judges A.A. Rodríguez and C.S. Fisher.

Defendant, a citizen of the Dominican Republic and legal resident of the United States, was charged with committing third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two); and second-degree possession of a firearm while engaged in drug activity, N.J.S.A. 2C:35-5 and 2C:29-4.1(a) (count three). Pursuant to a plea agreement, defendant entered a guilty plea on November 13, 2003 to counts two and three; count one was dismissed. Defendant was sentenced, on January 16, 2004, to a prison term of five years on count three, and a concurrent term of four years on count two. Six months later, deportation proceedings were commenced against defendant based solely upon his conviction in this matter.

On April 18, 2006, after being released from prison, defendant filed a petition for post-conviction relief, claiming his attorney's failure to advise of the potential for deportation deprived him of the constitutional guarantee of the effective assistance of counsel. At an evidentiary hearing, on December 8, 2006, the judge heard the testimony of defendant and his trial attorney, reviewed the arrest report, the plea form, and the presentence report, and concluded, by way of an oral decision, that defendant had failed to demonstrate that he had been denied the effective assistance of counsel.

In appealing the order denying post-conviction relief (PCR), which was entered on December 19, 2006, defendant argues that the record demonstrated that the legal advice provided when he agreed to plead guilty was deficient and that, but for this erroneous advice, he would not have pled guilty. Although we agree with defendant that the evidence adduced at the PCR hearing permitted no finding except that defendant's attorney should have but failed to advise of the deportation consequences of defendant's guilty plea, we conclude there was ample evidence to support the judge's findings that, even if proper advice had been provided, it was not reasonable to believe that defendant would have decided to go to trial. Accordingly, for the following reasons, we affirm the order under review.

In determining whether an accused has been deprived of the constitutional right to the effective assistance of counsel, we apply the two-part test formulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). This test was also adopted as the means for determining when the performance of counsel offends our state constitution. State v. Fritz, 105 N.J. 42 (1987). This test requires that it first be ascertained whether "counsel's representation fell below an objective standard of reasonableness," Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693, and, if so, whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. As the Court later observed, the "prejudice" requirement of the second aspect of the test "was based on our conclusion that '[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.'" Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed. 2d 203, 209 (1985) (quoting Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 696).

Ultimately, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process" that it cannot be relied on as "having produced a just result." Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed. 2d at 692-93. And, in holding that a PCR applicant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," the Court defined "reasonable probability" as "a probability sufficient to undermine confidence in the outcome," Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698 (emphasis added); accord State v. Fritz, supra, 105 N.J. at 52.

In Hill v. Lockhart, the Court considered the application of these principles to a claim that a guilty plea would not have been entered but for the unprofessional advice provided by counsel. The Court concluded that the showing of prejudice required by Strickland continues to apply in such circumstances in order to "serve the fundamental interest in the finality of guilty pleas," Hill v. Lockhart, supra, 474 U.S. at 58, 106 S.Ct. at 370, 88 L.Ed. 2d at 210, invoking, by way of further explanation, its comments in an earlier decision:

"Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea." [United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087-88, 60 L.Ed. 2d 634, 639 (1979) (quoting United States v. Smith, 440 F.2d 521, 528-29 (7th Cir. 1971) (Stevens, J., dissenting)).]

As a result, the Court concluded that when a claim of ineffective assistance of counsel arises from a defendant's decision to plead guilty, the first half of the Strickland test is "nothing more than a restatement of the standard of attorney competence" previously defined in cases such as Tollet 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). Hill v. Lockhart, supra, 474 U.S. at 58-59, 106 S.Ct. at 370, 88 L.Ed. 2d at 210. On the other hand, the Court explained that the second requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process," and, thus, that to satisfy this "'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. at 370, 88 L.Ed. 2d at 210. See also State v. Chung, 210 N.J. Super. 427 (App. Div. 1986).

The Court in Hill v. Lockhart provided examples of how this second aspect of the test should apply:

[W]here the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.

[474 U.S. at 59, 106 S.Ct. at 370-71, 88 L.Ed. 2d at 210.]

In applying these principles to the present matter, we conclude that the factual record does not support the trial judge's finding that the attorney's advice prior to the entry of defendant's guilty plea was adequate. The attorney provided advice and went through the plea form with defendant on November 13, 2003. The record reveals that the attorney then had in his possession an arrest report that stated defendant was not a United States citizen. In completing the plea form along with defendant, the attorney answered question 17 ("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?"), by indicating that it was not applicable, circling "N/A" instead of "yes" or "no" on the printed form. Certainly the arrest report raised a question about defendant's citizenship, yet the plea form revealed that the attorney, upon reviewing the case with defendant, concluded that deportation was not an issue. Defendant's attorney explained this during his testimony at the PCR hearing:

Q: Now, sir, I direct your attention to question 17 which states, "Do you understand that if you are not a U.S. citizen or national, you may be deported by virtue of your plea of guilty"?

A: Correct.

Q: Do you see that question, sir?

A: I do see it.

Q: Did you mark that, "Not applicable"?

A: I marked it, "Not applicable."

Q: And is it fair to say from this plea form that you would have advised [defendant] on that day, before he entered his plea, that this possible penalty was not applicable to him?

A: Yes. I mean, we would have gone through the entire form and marked it. And if that's what I put down, then it was never an issue that he raised with me or I raised with him. [Emphasis added.]

After being shown the arrest report, which indicated defendant's place of birth as the Dominican Republic and which further stated that he was not a United States citizen, defendant's trial attorney testified with "almost absolute certainty" that he had possession of the arrest report on November 13, 2003, and, again, that the question of defendant's citizenship never came up when or prior to the time defendant pled guilty:

Q: So, sir, based on the information that was in the discovery, that [defendant] was not a U.S. citizen, would you now agree that the advice that you gave him with respect to Question 17 [of the plea form], that that section was not applicable to him, would you agree that that advice was wrong?

A: I would agree with you based on, I suppose, on that, and also other information that came to light recently. I mean, until I got your papers, I had no idea he was a foreign national. So based upon that question, I would agree that had that come to my attention, I may have said to him: Mateo, this says you're not a U.S. citizen.

What's the story here?

But as I said, it wasn't -- didn't come up at the time.

[Emphasis added.]

During his own examination of defendant's trial attorney, the judge elicited that defendant had never affirmatively stated he was not a United States citizen to his attorney. This testimony formed the basis for the judge's finding that "based on the fact that [the attorney] circled 'NA,' . . . [defendant], in response to that question, obviously did not offer or proffer any information that he was not a U.S. citizen to [his attorney]."

The record also revealed that a Spanish interpreter was not always present during the discussions between counsel and client. Defendant's attorney testified that another attorney from his office spoke with defendant on November 10, 2003, and that this other attorney was fluent in Spanish. The attorney who went through the plea form with defendant on November 13, 2003, however, spoke only "some Spanish" and discussed the matter with defendant without the aid of an interpreter.

The judge also rejected the significance of the arrest report's indication that defendant was not a citizen, and overlooked the fact that the report was available to defendant's attorney but yet never triggered a discussion regarding deportation between counsel and client. The judge took this approach by relying upon the fact that a presentence report, prepared after the plea was entered, indicated that defendant was a United States citizen. To this end, the judge made a finding "and [took] judicial notice of the fact that the information gleaned and contained in a presentence report is the information that is conveyed from defendants to the interviewing probation officer in the criminal case management office." However, the presentence report contains a statement that defendant "was born and raised in the Dominican Republic," and that he "moved to the United State[s] approximately [seven] years ago." In addition, although the probation officer may have checked a box on the presentence report indicating that defendant was a citizen of the United States, everything else contained in the report suggested otherwise. Moreover, the report indicated that "defendant's personal information could not be verified" because -- once again -- "a Spanish interpreter was not available."

We conclude that the only finding permitted by these undisputed circumstances was that the question of defendant's citizenship, as his then attorney testified, "never came up" when a guilty plea was recommended, as it should have, and that, as a result, defendant was not advised of the deportation consequences of his guilty plea. Accordingly, we conclude that the first aspect of the Strickland test was met in this case.

As for the second aspect, the trial judge's findings are well-centered on the evidence. The record revealed that investigators conducted a controlled buy of CDS from defendant at his residence in Lakewood. Pursuant to a search warrant issued soon thereafter, the police entered defendant's residence and uncovered quantities of CDS and a handgun. The only persons in the residence when the warrant was executed were defendant and his girlfriend, Zulma Baez.

In opining about defendant's chances of success at trial, defendant's attorney testified that the search warrant, which uncovered a handgun and CDS in defendant's residence, "looked pretty solid," and that defendant would not "have [had] a shot" if he had moved to suppress. In exploring the other arguments suggested by the facts known at the time, the attorney testified that there were only two people in the apartment when searched: defendant and Baez. However, because defendant expressed the importance of obtaining a dismissal of the charges against Baez -- stating to his attorney at the time that "she had nothing to do with it," and that there was "nobody else to put [the blame] on" -- and that the gun, bullets and CDS were found in the apartment during the execution of the search warrant, that "it would be a very tough case to win, if not close to impossible." The attorney also testified that by entering into the plea agreement not only did defendant lessen his jail time exposure by pleading guilty, but defendant also obtained a dismissal of the charges against his girlfriend.

At the PCR hearing, defendant testified that had he known at the time that a consequence of his guilty plea would be the possibility of deportation he would not have pled guilty but would instead have gone to trial. Upon assessing defendant's demeanor and the content of his testimony, the trial judge concluded that defendant was not credible. This is a finding that the judge was entitled to reach in light of his observations of the witness, and is a finding deserving of our deference. State v. Locurto, 157 N.J. 463, 470-71 (1999). This finding, coupled with the overwhelming evidence that defendant lacked a viable defense to the charges and that it was reasonable to assume that he would have been convicted of all charges had he gone to trial, and that he obtained the benefit of securing a dismissal of charges against his girlfriend, demonstrates that defendant was not prejudiced within the meaning of the Strickland test when he chose not to go to trial based upon the advice rendered.



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