March 4, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SANDY PEREZ, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-04-1414.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 12, 2007
Before Judges Stern, A. A. Rodríguez and C. S. Fisher.
Pursuant to a negotiated plea, defendant pled guilty to first degree distribution of CDS in exchange for dismissal of the remaining counts of an indictment and a recommended sentence of ten years in the custody of the Commissioner of the Department of Corrections with two years to be served before parole eligibility. Because of his cooperation with law enforcement, the charge was amended to a second degree offense at sentencing with the consent of the prosecutor, and no objection to ISP. Defendant now argues that (1) the trial court had to advise defendant of the "possible immigration consequences" of his plea, and of possible deportation, and therefore that we must remand to permit defendant to move to withdraw his plea; (2) he did not receive the effective assistance of counsel "because defense counsel did not explain the immigration consequences to defendant" nor completed the immigration question on the Spanish plea form; and (3) the appeal should be considered as filed within time.
The sentence was imposed, and judgment entered, on June 6, 2003. The notice of motion for leave to appeal as within time was filed on December 8, 2004. On January 3, 2005, we entered an order reserving on the motion and directing that the issue of appealability be briefed by the parties "as part of their merits brief."
In Points I and II of the brief before us, defendant argues:
THIS COURT SHOULD APPLY THE PRINCIPLES OF STATE V. BELLAMY, 178 N.J. 127 (2003), AND HOLD THAT BECAUSE THE POSSIBILITY OF DEPORTATION AND PERMANENT DENIAL OF RE-ENTRY INTO THE UNITED STATES ARE SO SEVERE, FUNDAMENTAL FAIRNESS RQUIRES THE TRIAL COURT TO INFORM A DEFENDANT THAT THERE MAY BE IMMIGRATION CONSEQUENCES AS A RESULT OF PLEADING GUILTY. HERE, THE COURT DID NOT INFORM DEFENDANT OF ANY POSSSIBLE IMMIGRATION CONSEQUENCES, NOR WAS THE QUESTION ON THE SPANISH PLEA FORM ABOUT IMMIGRATION CONSEQUENCES ANSWERED. AS SUCH, THE APPROPRIATE REMEDY IS TO REMAND THE MATTER TO PERMIT DEFENDANT TO MOVE TO WITHDRAW HIS PLEA. U.S. Const. Amends. XIV; N.J. Const. Art. I, ¶ 1, 10. (Not Raised Below)
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE PLEA HEARING BECAUSE DEFENSE COUNSEL DID NOT EXPLAIN THE IMMIGRATION CONSEQUENCES TO DEFENDANT, NOR HAD DEFENDANT COMPLETE THE IMMIGRATION QUESTION ON THE SPANISH PLEA FORM. U.S. Const. Amends. VI, XIV; N.J. Const. Art I, ¶ 1, 10. (Not Raised Below)
In the English version of the plea form, defendant answered "yes" to question 17, which 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 also executed a Spanish form on which question 17 was not answered. The plea colloquy reveals only the following relevant questioning:
Q: The terms of that plea agreement, have you reviewed them with your lawyer and the interpreter?
Q: Counsel, I'm going to ask you before you leave to complete the Spanish version.
[DEFENSE COUNSEL]: Okay.
THE COURT: Do you know there is one?
[DEFENSE COUNSEL]: Yes, there is Judge. I didn't know. I mean, that's the way I've always done it. I interpret in Spanish as we do it --
THE COURT: I know. AOC wants it in Spanish from now on.
BY THE COURT:
Q: In any event, you've had this document interpreted to you?
Q: You understood the interpretation?
Q: You agreed with all the answers?
The plea form and plea colloquy also reflect defendant's negotiated waiver of his right to appeal.
The lack of understanding of a "collateral consequence" of a guilty plea, including lack of understanding of "immigration status" and possible deportation, has not been a basis on which to withdraw an otherwise knowing, voluntary and intelligent plea. State v. Chung, 210 N.J. Super. 427, 431-39 (App. Div. 1986); State v. Reid, 148 N.J. Super. 263, 266-67 (App. Div.), certif. denied, 75 N.J. 520 (1977).
Nevertheless, out of an abundance of caution, the plea form includes question 17 which deals with the subject of deportation, see State v. Chung, supra, 210 N.J. Super. at 432 (noting legislation in other states), and we have permitted a defendant to withdraw his or her guilty plea, incident to a post-conviction application, when counsel was ineffective in failing to advise defendant of the consequences of the plea and in responding to question 17 on the form. See Chung, supra, 210 N.J. Super. at 435 (holding no basis for relief as defendant was not misinformed by counsel, "was aware of his illegal immigrant status" and "was also aware of possible immigration problems," id. at 441 (finding no demonstration of "manifest injustice"); see also State v. Garcia, 320 N.J. Super. 332 (App. Div. 1999) (remanding for evidentiary hearing on ineffective assistance claim in light of the "N/A" answer on plea form despite defendant's immigration status); State v. Viera, 334 N.J. Super. 681 (Law Div. 2000) (holding that counsel was ineffective where counsel knew defendant was a resident alien and defendant indicated during plea colloquy he had problems reading and writing English, yet counsel answered "N/A" on form when she did not discuss the issue with defendant who was unaware of the consequences).
We are advised by defendant's appellate counsel that defendant has now been deported, and assuming the appeal is not moot, what defendant actually knew or did not know about the deportation consequences of his plea would be relevant. In fact, here the English version of the form reflects defendant understood that he may be deported. Thus, an evidentiary hearing on that question is appropriate. He contends, however, that unless we vacate the plea, for failure of the judge to advise him directly during the plea colloquy of possible immigration consequences, he would have no ability to appear for a hearing on his petition for post-conviction relief (PCR) and no remedy.
By opinion filed on April 20, 2006, the Third Circuit denied defendant's petition for review of an order of removal to the Dominican Republic. Perez v. Attorney General, 178 Fed. App. 118 (3d Cir. 2006). It is true, as defendant argues, that in denying relief (apparently including a stay), the Third Circuit opinion observed "[i]f his conviction were to be overturned on appeal, his remedy would be to file a motion to reopen before the Board of Immigration appeals." Id. at 199. But that does not suggest New Jersey should change, or even re- examine, its law concerning the adequacy of a plea colloquy or even hear this appeal. In fact, the Court noted:
Perez's nunc pro tunc criminal appeal was not filed until December 8, 2004. Thus, at the time of his last immigration hearing in October 2004, the conviction was final. [Ibid.]
It is apparent, therefore, that despite the guilty plea that defendant acknowledges to be based on an adequate factual basis as of the time of its entry, and waiver of the right to appeal incident thereto, see State v. Gibson, 68 N.J. 499 (1975); R. 3:9-3(d), this appeal was filed only in light of the unsuccessful result at the immigration hearing. Moreover, in filing his tardy appeal, defendant certified:*fn1
2. Due to the reason that I needed a Spanish interpreter because I do not speak English fluently, I did not understand, nor have any recollection if the judge in fact mentioned that I had a 45-day time limit to file for an appeal.
3. I did not ask my attorney to file an appeal on my behalf because he generally informed me that a direct appeal would be totally unnecessary.
4. Also, I was under the impression that upon accepting the guilty plea I could not file for an appeal.
5. It was not until August 19, 2004, that I had the opportunity to contact the Office of the Public Defender, Appellate Section in Newark, to request for an appeal.
The certification does not include any statement of a request or any attempt to appeal within time. See State v. Molina, 187 N.J. 531 (2006); State v. Altman, 181 N.J. Super. 539 (App. Div. 1981) (the latter of which controlled at the time). Defendant had, in fact, waived his right to appeal as part of the negotiated plea.*fn2 In any event, we now have a copy of the plea transcript which was not available when we entered the order on the motion for leave to file the appeal as within time. It clearly reveals that the sentencing judge made clear:
And Mr. Perez you have a right to file an appeal. You have to take the appeal within 45 days. If you can't afford an attorney, make application and one will be appointed.
As noted, there is no indication of any endeavor by defendant with counsel, the Public Defender, the court or even the certified court interpreter who was present to do anything about an appeal within seventy-five days thereafter. See State v. Molina, supra, 187 N.J. at 542; R. 2:4-1(a); R. 2:4-4.
Accordingly, we do not see this case as the vehicle to re-examine "whether a trial judge should be required to inform a defendant of possible immigration consequences regardless of the plea form." Despite his answer to the English form and lack of answer on the Spanish form, there is nothing in the record (presented to the trial court or by application to us) which raises the contention that defendant was not advised by counsel of the deportation consequences of his plea. Moreover, defendant would have to show the trial court that he would not have entered the plea if he knew of this consequence which was unknown at the time of plea, and even if defendant prevailed and is given the right to withdraw his plea, he would have to indicate on the record his desire to withdraw the plea, resurrect all charges with greater exposure to a sentence and negotiate a new plea recommendation or stand trial. See, e.g., State v. Johnson, 182 N.J. 232, 242 (2005); see also State v. Cheung, 328 N.J. Super. 368, 370 (App. Div. 2000). Hence, his appearance would also be required in order to withdraw his plea, and the argument that we should grant defendant the opportunity to withdraw his plea without the need for a PCR hearing because he has been deported has no practical application.*fn3
We emphasize, however, there is absolutely no reason for a judge accepting a guilty plea to fail to explore with defendant the issue of possible deportation whenever there exists a question about the defendant's citizenship. This will avoid post-conviction applications.
The appeal is dismissed without prejudice to the defendant's right to file a petition for post-conviction relief.