June 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ALFREDO LUIS AGROMAYOR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Accusation No. 139-85.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 4, 2008
Before Judges Lisa and Lihotz.
Defendant appeals from an order denying his post-conviction relief (PCR) petition. On May 29, 1985, pursuant to a plea agreement, defendant pled guilty to possession of less than one ounce of cocaine with intent to distribute, in violation of N.J.S.A. 24:21-19(a)(1)(Repealed). Pursuant to the plea agreement, more serious charges were dismissed and the prosecutor took no position regarding sentencing. On July 17, 1985, defendant was sentenced to two years probation, which he served uneventfully. He did not appeal his conviction. Twenty-two years later, on July 13, 2007, facing deportation proceedings, defendant filed his PCR petition. He alleged his attorney was deficient for misinforming him at the time of his plea about the potential deportation consequences of his conviction, as a result of which he contended his plea was not knowing and voluntary and he should be permitted to withdraw it. After hearing oral argument on August 17, 2007, Judge Theemling found no deficient conduct by counsel and denied the petition.
On appeal, defendant argues:
THE TRIAL COURT'S DECISION SHOULD BE SET ASIDE BECAUSE REVERSIBLE ERROR WAS COMMITTED IN DENYING AGROMAYOR'S MOTION TO VACATE HIS PLEA AND JUDGMENT OF CONVICTION FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
We reject this argument and affirm.
Defendant is a citizen of Cuba. He entered this country in 1980. During the plea colloquy, there was no discussion on the record regarding defendant's alien status or any possible deportation consequences that might result from his plea and conviction. The plea forms then in use contained no question pertaining to citizenship status or possible deportation consequences. At the sentencing proceeding, however, after the court imposed sentence and advised defendant of his right to appeal, defendant's attorney sought to "make application that the plea and the sentence not be used for purposes of deportation under the Immigration and Naturalization Law." The following colloquy ensued:
[DEFENSE COUNSEL]: Thank you, your Honor.
May I make application that the plea and the sentence not be used for purposes of deportation under the Immigration and Naturalization Law?
[PROSECUTOR]: I don't know if we have standing to do that.
[DEFENSE COUNSEL]: The rules provide I can make the motion.
[PROSECUTOR]: That may be true, but there is nobody here to represent Immigration and Naturalization.
[DEFENSE COUNSEL]: There doesn't have to be. That motion can be made and your Honor can entertain the motion, make the decision, and Immigration will then have its own burden to bear with reference to any movement against this defendant.
THE COURT: Your position then is that you have no authority one way or the other.
[PROSECUTOR]: One way or the other.
THE COURT: All right. For what it is worth, I will grant the motion. However, it is with the understanding Immigration and Naturalization has not been heard and they may petition me to be heard. Under those circumstances, I would hear them.
[DEFENSE COUNSEL]: Thank you. The rules do not address themselves to the obligation to notify Immigration and Naturalization. They have to assert a separate jurisdictional issue to entertain any application with reference to separation of this person's status in this country.
The rules do provide, however, he should make the application at the time of sentence within, I think, 10 to 30 days.
Thus, it is clear that defendant's attorney was aware of defendant's alien status and had discussed with defendant the possibility of deportation consequences arising from his conviction and sentence. It is also clear from the colloquy that uncertainty existed as to the possible effectiveness of the order by the sentencing judge that defendant's conviction could not be used in a deportation proceeding. The prosecutor disavowed any authority to agree to such an order, and the judge made clear that the order was being entered "[f]or what it is worth," but might not be effective to protect defendant.
Defendant eventually moved to Florida where he now resides. Prior to January 29, 2007, defendant applied for residency status. On January 29, 2007, the Immigration and Naturalization Service (INS) issued a notice informing defendant that he was subject to deportation under provisions of the Immigration and Nationality Act. One of the specified reasons was the 1985 New Jersey conviction that is the subject of this appeal.
Having received that notice, defendant filed his PCR petition. He has not asserted his innocence of the offense for which he was convicted. Nor does he contend that he has a viable defense, or that the State's proofs are lacking, regarding the offense to which he pled guilty or the more serious charges that were dismissed. Defendant has filed no certification describing conversations he had at the time of his plea and sentencing with his attorney (who is apparently now deceased). Defendant's present counsel asserts in his brief, without reference to the record, that defendant "believed in his counsel's misinformation that he would be protected from deportation."
Where a defendant argues that the ineffective assistance of counsel led to the entry of a guilty plea, the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), applies. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 369-70, 88 L.Ed. 2d 203, 209-10 (1985); State v. Chung, 210 N.J. Super. 427, 434 (App. Div. 1986) (applying the Strickland test to guilty pleas entered in state court). Accordingly, to prevail on the ineffective assistance claim, the defendant must satisfy two prongs.
First, the defendant must show that the attorney's representation "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Specifically, the voluntariness of a represented defendant's guilty plea "depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.'" Hill, supra, 474 U.S. at 56, 106 S.Ct. at 369, 88 L.Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed. 2d 763, 773 (1970)). Reviewing courts must indulge in a strong presumption that counsel provided reasonable assistance. Chung, supra, 210 N.J. Super. at 434 (citing Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695).
The defendant must also demonstrate that the attorney's deficient performance prejudicially affected the plea process. "[T]he 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." Hill, supra, 474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed. 2d at 210. Prejudice "is not presumed." State v. Fritz, 105 N.J. 42, 52 (1987).
Defendant does not deny that his attorney discussed potential adverse immigration consequences with him. His contention is that his attorney failed to provide reasonably competent representation by assuring defendant that the entry of his guilty plea would not lead to deportation. However, we must evaluate this assertion in light of the record before us. The colloquy we have quoted from the sentencing proceeding is the only record evidence dealing with the issue. As we stated, defendant filed no certifications, and he has not requested an evidentiary hearing. It is also necessary to our analysis to set forth the controlling legal principles pertaining to potential deportation consequences resulting from a guilty plea in a criminal case.
Because deportation is a "collateral" rather than "penal" consequence of a criminal conviction, State v. Heitzman, 107 N.J. 603, 604 (1987) (per curiam), aff'g 209 N.J. Super. 617 (App. Div. 1986); State v. Wilkerson, 321 N.J. Super. 219, 224 (App. Div.), certif. denied, 162 N.J. 128 (1999); State v. Garcia, 320 N.J. Super. 332, 336 (App. Div. 1999), an attorney's complete failure to consult or advise his or her client with respect to the deportation consequences of a guilty plea will not give rise to an ineffective assistance claim. Chung, supra, 210 N.J. Super. at 433-35. Similarly, there is no constitutional requirement that the trial judge explain the possibility of deportation to the defendant. Id. at 433.
However, an attorney fails to provide reasonably competent representation when the attorney provides "erroneous information concerning possible immigration ramifications," or the attorney engages in "actual misrepresentation" of the collateral consequences. Id. at 434-35. See also Garcia, supra, 320 N.J. Super. at 339 ("A defense attorney during the plea process can provide inadequate assistance by misinforming his or her client.")
After outlining the applicable legal authorities and principles, Judge Theemling found:
Further, this transcript of sentence clearly shows that the defendant's -- in the defendant's presence the issue of immigration status was addressed. The court indicated it would grant the defendant's motion to preclude the INS from using the plea on this conviction; and, thus, requiring a full hearing. And he did that for whatever it was worth because the State indicated to the court that the court had no authority to grant the motion and no attorney was present from the INS.
This information, while inconclusive, was sufficient to advise the defendant his immigration status was sticky. Defendant has not proven by a preponderance of the evidence that his attorney deviated from the reasonable professional assistance based upon the law at that time. No evidence has been submitted to indicated [sic] that defendant's attorney misadvised his client on the state of the law in 1985.
Since the defendant cannot meet the first prong of the Strickland test, we need not look to the second and third and the motion is going to be denied.
We agree with this analysis. The record is devoid of any evidence of misrepresentation of the law by trial counsel. Indeed, the immigration laws at the time of defendant's plea allowed for state court orders recommending against deportation, although such orders were not allowed in narcotics cases. See 8 U.S.C.A. § 1251(b)(2)(repealed 1990); Chung supra, 210 N.J. Super. at 438. However, neither that prohibition nor the failure to give advance notice of the application to the INS necessarily rendered a state court order void. See Probert v. INS, 954 F.2d 1253, 1255 (6th Cir. 1992); Cerujo v. INS, 570 F.2d 1323, 1325 (7th Cir. 1978); Haller v. Esperdy, 397 F.2d 211, 214 (2d Cir. 1968). This is because the INS could always move for reconsideration before the state court and seek vacation of the non-deportation recommendation. Cerujo, supra, 570 F.2d at 1325-27; Haller, supra, 397 F.2d at 214. The law in 1985 provided that such a state court order was valid on its face, and the burden of seeking its vacation was placed upon the INS. Hassan v. INS, 66 F.3d 266, 268 (10th Cir. 1999); Rashtabadi v. INS, 23 F.3d 1562, 1569 (9th Cir. 1994). The provision allowing for such state court orders, 8 U.S.C.A. § 1251(b)(2), was repealed in 1990. Hassan, supra, 66 F.3d at 268; United States v. Murphey, 931 F.2d 606 (9th Cir. 1991). Given the state of the law, it was appropriate for defense counsel to request, and for the trial court to grant, a recommendation against deportation. However, the granting of that recommendation was by no means a guarantee that defendant would not be deported, as is evident from the judge's comments as to the enforceability of the order. As in Chung, defendant was on notice that as a result of his guilty plea and conviction his immigration status could become "sticky." Chung, supra, 210 N.J. Super. at 435.
The sufficiency of counsel's performance under the first Strickland prong must be evaluated based upon standards of attorney performance existing at the time of representation, Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695, and in accordance with the law as it existed at that time. State v. Goodwin, 173 N.J. 583, 597-98 (2002). Applying these principles, it is clear there was no deficiency in this case. The plea was entered prior to later developing New Jersey case law suggesting that, although possible deportation consequences are collateral and not penal, the plea form should be amended to include a question on the subject, and such a question was later added. That would have made no difference here, in any event, because it is clear that the question would have been answered in a manner to indicate that counsel did advise defendant of the possible deportation consequences. Any record discussion about defendant's understanding of the nature of those possible consequences would have undoubtedly been along the lines of the colloquy we have quoted from the sentencing proceeding, namely that deportation was a possibility, and there were no guarantees about the potential effectiveness of the order recommending against deportation.
Although the PCR court did not reach Strickland's second prong, we note for the sake of completeness that the record fails to establish that prong as well. The bald assertion that defendant would have gone to trial or sought to negotiate some other plea agreement is insufficient to demonstrate a reasonable probability that defendant would not have accepted this very favorable plea bargain that resulted in a non-custodial sentence. See State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Finally, we comment on the timing of the PCR petition. Judge Theemling commented on the untimeliness of it and the five-year time bar provided by Rule 3:22-12(a), but he proceeded to dispose of the petition on the merits. Defendant has asserted no facts showing that his delay of seventeen years beyond the five-year limitation period was due to excusable neglect. Nor has he demonstrated any exceptional circumstances to justify relaxation of the Rule 3:22-12 time bar. Goodwin, supra, 173 N.J. at 595. Although we do not base our decision on the time bar, we note it, as did Judge Theemling, and add that it would likely serve to bar this petition.
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