March 10, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSEPH VIGIL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-11-2671-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 6, 2008
Before Judges Cuff and Lihotz.
Defendant appeals from an order denying his post-conviction relief (PCR) petition without benefit of a plenary hearing. Defendant asserts his attorney provided erroneous information regarding the deportation ramifications of his guilty plea, rendering counsel ineffective. Defendant's application to vacate his guilty plea and proceed to trial was denied. We affirm.
On April 18, 1996, pursuant to a plea agreement, defendant waived indictment and trial, and elected to proceed on an accusation, pleading guilty to fourth-degree criminal sexual conduct, N.J.S.A. 2C:14-3(b). The State agreed to recommend two-years probation on the condition that defendant serve a maximum custodial sentence of 364 days as a reverse split and dismiss the warrant charging defendant with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7). Defendant was sentenced in accordance with the terms of the plea agreement and was ordered to pay applicable fines and restitution. Defendant did not appeal and completed probation on February 13, 2005.
On appeal, defendant argues:
THE TRIAL COURT BELOW COMMITTED REVERSIBLE ERROR (DEF. A-4 TO DEF. A-9) IN DECLINING TO VACATE THE DEFENDANT-APPELLANT'S GUILTY PLEA AS THE DEFENDANT-APPELLANT WAS EFFECTIVELY DENIED HIS CONSTITUTIONALLY PROTECTED RIGHT TO COUNSEL, HAVING BEEN PROVIDED WITH MISINFORMATION AS TO THE CONSEQUENCES OF HIS GUILTY PLEA.
SECTION 1 - THE DEFENDANT WAS PROVIDED WITH ERRONEOUS INFORMATION REGARDING THE POSSIBLE CONSEQUENCES OF PLEADING GUILTY.
SECTION 2 - THE ERRONEOUS INFORMATION PROVIDED TO THE DEFENDANT-APPELLANT FROM HIS COUNSEL DIRECTLY AFFECTED THE PLEA.
THE TRIAL COURT BELOW COMMITTED REVERSIBLE ERROR (DEF. A-4 TO A-9) IN DECLINING TO HOLD AN EVIDENTIARY HEARING AS THE DEFENDANT-APPELLANT CONTENTIONS PRESENT A PRIMA FACIE CASE TO POST-CONVICTION RELIEF.
In reviewing a defendant's claim to be relieved of the consequence of a guilty plea, the trial court must consider the strong interests of the State, which includes the interests of the victim, in preserving finality. State v. Taylor, 80 N.J. 353, 362 (1979). "Moreover, where the plea was entered pursuant to a plea agreement, defendant's burden of 'presenting a plausible basis for his request to withdraw his plea is heavier.'" State v. Rodriquez, 179 N.J. Super. 129, 136 (App. Div. 1981) (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)).
The transcript of the plea hearing is not available. It is not disputed that prior to entry of his plea, counsel reviewed with defendant question 17 of the plea form, which states: "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, a Peruvian national and legal resident, circled "yes" in response to the question. The text of "question 17 in the plea form appears designed, in part, to prevent misleading alien defendants by not discussing deportation. The question advises non citizens that they may be deported if they plead guilty." State v. Garcia, 320 N.J. Super. 332, 337 (App. Div. 1999). Defendant asserts his attorney advised that "if he were to be deported, a discussion would be initiated at the sentencing." Because the issue was not raised at sentencing, defendant stated he "believed that he was no longer a candidate for deportation." To date, there has been no effort to deport defendant.
During argument on the PCR application, PCR counsel explained that defendant married a United States citizen and was "proceeding through an immigration process." Defendant was advised by immigration counsel that his conviction "would be an impediment, some impediment or raise some question about him getting and completing the citizenship process which apparently is underway."
We have held that the effect of a defendant's plea on his immigration status does not relate to the penal consequences of the plea, but is considered a collateral consequence. State v. Reid, 148 N.J. Super. 263, 266-67 (App. Div.), certif. denied, 75 N.J. 520 (1977). Although a trial court should inform a defendant of any collateral consequences of which the court may be aware, "the failure to do so cannot be viewed as error requiring further proceedings that could lead to a vacating of the plea." State v. Heitzman, 107 N.J. 603, 604 (1987).
Despite our conclusion that "it is not the present responsibility of a New Jersey judge to advise a defendant of federal deportation consequences at the time of the taking of the guilty plea," State v. Chung, 210 N.J. Super. 427, 433 (App. Div. 1986), counsel's actions or omissions in this regard may be found to be constitutionally deficient. See State v. Vieira, 334 N.J. Super. 681, 688 (Law Div. 2000) (when a defendant previously discloses that he is a resident alien, the knowledge is imputed to defense counsel and the defendant discloses in open court that he has problems reading and writing English, counsel's performance is constitutionally deficient if the attorney does not address the issue of deportation). Additionally, where a defendant was supplied erroneous information by counsel, a defendant has been permitted to withdraw his guilty plea. See State v. Nichols, 71 N.J. 358, 361 (1976) (materially inaccurate representation to the defendant by counsel as to the potential penal consequences of the charges against him provide an adequate basis to withdraw a guilty plea); see also Garcia, supra, 320 N.J. Super. at 341 (hearing is necessary to resolve whether misinformation about deportation was provided and if so whether counsel's conduct was ineffective).
Defendant argues that even though his attorney discussed the deportation consequences of a guilty plea, his performance was so deficient he was "not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); United States v. Cronic, 466 U.S. 648, 657-58, 104 S.Ct. 2039, 2046-47, 80 L.Ed. 2d 657, 667-68 (1984); State v. Fritz, 105 N.J. 42, 58 (1987), because the deportation information related was erroneous and led defendant to believe he would escape deportation if it did not occur at sentencing. Further, defendant suggests counsel was ineffective because he failed to discuss the impact of defendant's guilty plea and conviction on any future naturalization process.
"The burden to prove that [the] incompetence of counsel had a prejudicial effect upon the outcome of the proceeding is squarely on the defendant." State v. Paige, 256 N.J. Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). As noted in Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95: Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." [(internal citation omitted).]
Based upon our review of the record, we cannot agree that counsel's performance was deficient or that it affected the outcome of the plea process. Fritz, supra, 105 N.J. at 60-61. Defendant admits he reviewed each question on the standard plea form with counsel. Defendant read and understood the English language. Defendant affirmatively responded to question 17 of the plea form acknowledging his awareness of potential deportation consequences. Further, he acknowledged he was told that if he pled guilty, he could be deported at sentencing. Thereafter, defendant accepted the plea agreement and freely and openly admitted his guilt. In his PCR application, he does not challenge the factual basis supporting his plea. From these uncontroverted facts, we conclude counsel disclosed possible deportation consequences in the event of conviction and defendant chose to terminate the matter by accepting the plea agreement rather than proceed to trial.
As noted, defendant is aware of no active deportation proceedings. His objection to counsel's performance arises from anticipation of a "possible impediment" or "question raised" in the review of his pending citizenship application. Defendant's concerns with naturalization were not articulated to counsel prior to entering his plea; nevertheless, the impact of a felony conviction on naturalization was stated in the presentence report. Under these circumstances, counsel's failure to specifically address this collateral consequence does not equate to ineffective assistance. Chung, supra, 210 N.J. Super. at 434-35.
Regarding the second prong of the Strickland/Fritz test, we find, as did the PCR judge, that defendant's application does not demonstrate that counsel's alleged inaccurate assurance prejudicially affected defendant's decision. Defendant's guilty plea to the fourth-degree offense resulted in the dismissal of the first-degree charge, avoidance of incarceration, averted Megan's law consequences, and prevented disruption to defendant's college class schedule. There is no evidence that defendant would have proceeded to trial on the first-degree aggravated sexual assault charge, rather than accept the agreed sentence of no incarceration upon successful completion of two years' probation.
We are satisfied Judge Carroll fairly and justly reviewed defendant's claims and concluded defendant's guilty plea was entered under circumstances, which evidenced that it was made truthfully, voluntarily and understandingly. State v. DiFrisco, 137 N.J. 434, 456 (1994), cert. denied, 516 U.S. 1179, 116 S.Ct. 949, 133 L. Ed 2d 873 (1996). We agree that the record fully supports Judge Carroll's findings and conclusions as expressed in his written opinion dated December 4, 2006. Finally, we find no misapplication in the exercise of his judicial discretion in determining a plenary hearing was not warranted. State v. Preciose, 129 N.J. 451, 462 (1992).
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