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State v. Hernandez


August 14, 2008


On appeal from the Superior Court of New Jersey, Law Division, Union County, Accusation No. 04-09-01237A.

Per curiam.


Submitted August 6, 2008

Before Judges R. B. Coleman and Sabatino.

Defendant Sander Hernandez appeals his conviction of third-degree distribution of cocaine, a controlled dangerous substance ("CDS"), in violation of N.J.S.A. 2C:35-5(a)(1). The conviction was entered in September 2004 pursuant to a plea agreement that defendant had negotiated with the assistance of counsel. Defendant now claims that the conviction should be vacated because his attorney was allegedly ineffective in failing to advise him that the conviction could lead to his potential deportation from the United States. We affirm.

The background facts are not complicated. Defendant was charged in a Union County accusation with distributing cocaine on August 24, 2004 in the Township of Union. The accusation exposed defendant to a statutory maximum term of five years, a fine of up to $75,000, plus various other penalties. Defendant had also been concurrently charged with simple possession of CDS, possession of CDS in a motor vehicle, and possession of drug paraphernalia with the intent to use it.

Defendant and his attorney subsequently negotiated a plea agreement in which he agreed to plead guilty to the third-degree distribution offense in exchange for the State's dismissal of the remaining charges against him. As part of the bargained-for terms, the prosecutor agreed to recommend that the sentence imposed by the court should not exceed probation, with a maximum of 180 days in the county jail and the forfeiture of all monies seized in connection with his arrest. The plea agreement was memorialized in a standard plea form, signed by defendant, his attorney, and the assistant prosecutor.

At the times relevant to this matter, defendant was a resident alien in the United States. He is a native and a citizen of the Dominican Republic. Notably, standard question number seventeen on the plea form specifically alerted defendant to the possibility that his guilty plea might lead to his deportation:

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?

The response of "N/A," signifying "Not Applicable," was circled. Defendant also authorized the circled response "No" to item twenty-four on the form, which inquired if he had "any questions concerning this plea."

Defendant and his attorney appeared before Judge Donohue on September 30, 2004 to enter the plea. No interpreter was utilized, as there is no indication in the record that defendant lacked proficiency in the English language. At the outset of that proceeding, Judge Donohue questioned defendant about his background. During that colloquy, defendant affirmatively stated to the judge, under oath, that he was then a United States citizen:

Q: Mr. Hernendez . . . . [c]ould you tell me how old you are?

A: 27 going on 28.

Q: And how far did you go in school?

A: High school and some college.

Q: Do you read, write, and understand English?

A: Yes.

Q: Are you a citizen of the United States?

A: Yes. [Emphasis added.]

The judge went on to confirm from defendant that he was not under the influence of any drugs or alcohol, that he had no physical or mental impairments, and that he was entering his plea "freely and voluntarily." The judge also verified that defendant had reviewed the terms of the plea with his attorney, that he had been afforded ample time to do so, and that he was satisfied with the advice that he had received:

Q: Have you had enough time to speak with your lawyer?

A: Yes.

Q: Has your lawyer gone over the plea with you?

A: Yes.

Q: Has he advised you of your rights?

A: Yes.

Q: Has he answered any questions you might have had to your satisfaction?

A: Yes.

Q: Are you satisfied with the advice and the services that have been provided on your behalf by your lawyer today?

A: Yes.

As the factual basis for his plea, defendant admitted that he had possessed one and a half grams of cocaine on August 24, 2004 and sold that cocaine to an unidentified female. The judge accepted the plea without any caveats or difficulties.

Thereafter, defendant was sentenced on January 7, 2005 by Judge Wertheimer to a three-year term of probation, subject to a 180-day custodial term in the county jail if defendant failed to fulfill his terms of probation. The sentencing judge also imposed customary fines and penalties. All of this was consistent with defendant's plea agreement.

In October 2006, the Federal Immigration and Naturalization Service ("INS")*fn2 notified defendant that it was instituting deportation proceedings against him. The deportation action was a consequence of defendant's conviction of the CDS offense in Union County. This development prompted defendant to file a motion with the Law Division seeking to vacate his guilty plea. The court denied defendant's motion on June 1, 2007, and this appeal ensued.*fn3

Defendant's sole argument on appeal is that he was deprived of the effective assistance of counsel because his attorney allegedly failed to advise him of the deportation consequences of a conviction of a CDS offense before entering into his guilty plea. Defendant contends that his attorney should have warned him about the mandatory deportation consequences that would flow from his conviction.

It is readily apparent from the record that defendant's argument lacks merit. We affirm the denial of his motion to vacate the guilty plea, substantially for the reasons cogently expressed in Judge Wertheimer's letter opinion of June 1, 2007. We amplify those reasons with only some brief comments.

To establish a deprivation of the Sixth Amendment right to the effective assistance of criminal counsel, a convicted defendant must demonstrate that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695.

The record before us is bereft of any proof that defense counsel's performance was manifestly deficient. There is absolutely no certification, affidavit or other competent evidence in the record that defendant ever made his attorney aware that he was a resident alien.*fn4 To the contrary, defendant swore to the court at the time of his plea that he was a United States citizen. His attorney had the right to rely on that sworn representation, as did the judge and the prosecutor. Additionally, defendant approved the response of "not applicable" to question seventeen on the plea form, which specifically raised the specter of deportation if defendant was not a citizen of this country.

Defendant argues that he was entitled to vacate his plea because he was allegedly "misinformed" about the immigration consequences of his guilty plea. We agree with Judge Wertheimer that defendant was not the victim of misinformed advice, and we share his view that defendant's present predicament with the INS is of his own making. The principal cases cited by defendant concerning such collateral consequences of a plea are not helpful to him because they are factually indistinguishable.

In State v. Garcia, 320 N.J. Super. 332, 334-35 (App. Div. 1999), we vacated an order denying post-conviction relief in a scenario where the defendant, a Cuban émigré, was ordered by the INS to leave the country after he pled guilty to various crimes in the Law Division. In Garcia, however, the defendant asserted that he had made his criminal attorney specifically aware of his status as a non-citizen, and that the attorney had nevertheless advised him, erroneously, that he would not be subject to deportation. Id. at 336. Unlike the present case, there is no indication that Garcia had specifically asserted to the court at his plea hearing that he was a citizen of the United States.

Defendant's reliance on State v. Viera, 334 N.J. Super. 681 (Law Div. 2000), is also misplaced. In Viera, a resident alien who was born in Portugal entered a guilty plea to a third-degree crime. Id. at 683. Thereafter, he was detained by immigration authorities upon returning to the United States from a trip abroad. Ibid. The defendant moved to vacate his plea, which the trial court permitted him to do after determining that defendant had difficulty with English, that his prior defense attorney had never reviewed the plea form with him, including question seventeen concerning deportation, and that defendant had not read the form. Id. at 684. Nothing in Viera indicates that the defendant there ever lied to the court about being a citizen of the United States. In fact, the defendant in Viera specifically told the authorities at the time of his arrest that he was not an American citizen. Id. at 683. Unlike the present case, that information about defendant's alien status in Viera had been specifically disclosed to defense counsel in the uniform defendant intake report. Ibid.

In sum, defendant's claims of ineffectiveness are unavailing, and his application to vacate his guilty plea was properly denied, given the discrete record before us. We also are satisfied that no evidentiary hearing was necessary in the Law Division to dispose of defendant's motion, given the absence of a prima facie showing of merit to his claims. State v. Preciose, 129 N.J. 451, 462-63 (1992).


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