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State v. McIntyre


December 5, 2008


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-08-01040.

Per curiam.


Argued November 13, 2008

Before Judges Cuff and Fisher.

In this appeal, defendant seeks our reversal of the denial of his petition for post-conviction relief, claiming his attorney was ineffective in advising him on the deportation consequences of a guilty plea. In light of the trial judge's findings of fact, we conclude that, in recommending that defendant consult with an immigration attorney, defense counsel met the level of competency required by the Strickland/Fritz*fn1 and, therefore, affirm.

Defendant is presently twenty-five years old. His family emigrated to this country from England when he was three years old. On August 29, 2002, when he was nineteen years old, defendant was indicted and charged with first-degree armed robbery, N.J.S.A. 2C:15-1, fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and second-degree conspiracy to commit the aforementioned offenses, N.J.S.A. 2C:5-2. The indictment alleged that, on May 27, 2002, defendant and a co-defendant placed an individual in fear of immediate bodily injury while stealing property from him. This was not defendant's first encounter with the criminal justice system.

Prior to entering into a guilty plea to second-degree robbery, defendant executed a plea form. Defendant's answer to Question 17 revealed he well knew he was not a citizen and that he "may be deported" as a result of pleading guilty.*fn2 During the plea hearing, the judge discussed with defendant the fact that his guilty plea would require a three-year period of mandatory parole supervision following his release from prison, which prompted an additional discussion between the judge and defendant:

[THE PROSECUTOR]: Do you understand that if you violate during [the period of mandatory parole supervision], you could go back, assuming, as [defense counsel] has made me aware that you're not deported, you could go back to prison for any period of that three years? It's a special part of the Act?


[THE PROSECUTOR]: Do you understand that?


THE COURT: Something I neglected to ask Mr. McIntyre, in light of what I just heard, are you a United States citizen?


THE COURT: You've been made aware that pleading guilty to this offense can subject you to INS problems?


THE COURT: I don't profess to know what those problems might be or even if you would be subjected to any INS problems. I just want to make sure that you are aware that is a real possibility. Understood? [DEFENDANT]: Yes.

Following this discussion, defendant acknowledged he committed a robbery on May 27, 2002 in New Brunswick.

As part of the plea agreement, the State agreed to allow defendant to plead guilty to second-degree robbery in exchange for the dismissal of first-degree robbery and the other charged offenses, and the State also agreed to recommend that defendant be sentenced as a third-degree offender. The judge accepted that recommendation and sentenced defendant to a four-year prison term with an eighty-five percent period of parole disqualification pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.

On November 29, 2005, shortly before he was released from prison, defendant filed a petition for post-conviction relief (PCR), claiming he was denied the effective assistance of counsel at the plea stage. By the time the PCR judge heard argument on the petition, deportation proceedings were pending. Defendant argued at the time that he was denied the effective assistance of counsel because "in this particular case there was never an immigration lawyer consulted with respect to whether [defendant's guilty plea to second-degree robbery] is grounds for automatic deportation." Defendant also urged the dire consequences of his guilty plea, namely, removal from the only country he has known.

Without an evidentiary hearing, the PCR judge denied relief, concluding that the record revealed (1) defendant was told by his attorney that he could have immigration problems if he pled guilty, (2) the trial judge had warned him of this during the plea hearing, and (3) defendant acknowledged the immigration problem when he executed the plea form. Defendant appealed. By way of an unpublished opinion, we suggested that the time may have arrived -- in light of State v. Bellamy, 178 N.J. 127 (2003) and Doe v. Poritz, 142 N.J. 1 (1995) -- to depart from State v. Chung, 210 N.J. Super. 427 (App. Div. 1986), which held that deportation is only a collateral and not a penal consequence of a guilty plea. State v. McIntyre, No. 4695-05T1 (App. Div. 2007). However, we did not resolve that question because we deemed it more appropriate to first obtain a full and complete record. We reversed and remanded for that purpose.

On September 5 and 6, and October 3, 2007, the PCR judge heard testimony from defendant, defendant's mother, defendant's trial attorney, and Robert Frank, Esq., an attorney who specializes in immigration matters. Also admitted in evidence was a letter that defense counsel wrote to defendant approximately five weeks prior to the plea hearing. Understandably, this letter played a large role in the PCR judge's decision because the letter demonstrates that defense counsel then advised that because you are not a citizen of the United States, you may be deported following your conviction. I recommend that you speak with an immigration attorney for details concerning possible deportation. Upon request, my office will provide you with a list of immigration attorneys to consult with.

In that letter, defense counsel also thoroughly explained the prison term defendant faced if he went to trial and was convicted on any of the charges. In addition, defense counsel then correctly and specifically advised of the plea offer that the State had made, referred to the discovery that had been received from the State, and made clear to defendant that he had "arrived at a crossroads" and the decision he would make "will have dramatic repercussions for you and your family." The letter confirmed defendant's decision to accept the State's plea offer. The letter also memorialized defendant's request that his attorney would continue "to discuss the effect of [defendant's] immigration status with the prosecutor with the hope that a better plea offer could result if you agreed to waive a deportation hearing."

The PCR judge found that defendant's mother had been active in securing legal advice for her son in this matter. As the judge said, defendant's mother "wanted the best for her son, and . . . she got one of the best law firms in Middlesex County" to represent him. When defense counsel indicated potential immigration problems -- referring to the consequences as being, in his view, "serious" -- but that he was not equipped to provide advice on the immigration consequences of a guilty plea, defendant's mother obtained from defense counsel the name of an immigration attorney. The PCR judge also found that defendant's mother spoke to an immigration attorney and was advised that "the immigration situation didn't seem to be an issue at the time of the plea," and that defendant should reach out for the immigration attorney once he heard from the Immigration and Naturalization Service.

The PCR judge concluded that defendant understood at the time he entered his guilty plea that the deportation consequences were serious, but defendant chose to plead guilty and only as his release date -- and deportation -- drew near did defendant express a doubt about the effectiveness of the representation he received. As a result, the judge denied the PCR petition.

Defendant appealed, raising the following issues:




We initially observe that the PCR judge's findings are well-grounded in the evidence adduced at the hearing. As a result, they are entitled to our deference. State v. Locurto, 157 N.J. 463, 470-71 (1999).

Defendant recognizes this, but argues that the Sixth Amendment requires more of an attorney than the advice given here. He argues that counsel should not have simply referred defendant to an immigration attorney but should have followed up to ensure that defendant had spoken to an immigration attorney; he also argues that his attorney should have personally discussed the matter with the immigration attorney before advising defendant to plead guilty to an offense that either guaranteed, or at least rendered highly probable, defendant's deportation. In addition, defendant argues that we should depart from our earlier decision in Chung, and declare deportation a penal consequence of which a defendant should be fully informed prior to entering a guilty plea.

Considering first the significance of the immigration consequences of a guilty plea, we find much merit in defendant's contention that whether deportation will follow a defendant's plea of guilty -- when that defendant has resided in the United States nearly his entire life -- is a penal consequence. Deportation may be accurately viewed as the "equivalent of banishment or exile," Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433, 436 (1948), which "visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom," Bridges v. Wixon, 326 U.S. 135, 154, 65 S.Ct. 1443, 1452, 89 L.Ed. 2103, 2115 (1945).*fn3 However, we need not decide that question nor further consider whether we should continue to adhere to Chung because in such a situation -- where the matter of deportation will ultimately be resolved at a later time in another forum --there is a limit to how much certainty a trial judge may provide to a defendant when he or she decides to plead guilty.

As defendant's expert testified at the PCR hearing, an alien may be deported as a result of committing an "aggravated felony." 8 U.S.C.A. § 1227(a)(2)(A)(3). The term "aggravated felony" has been defined to include a theft offense, which results in a prison term of one year or more, 8 U.S.C.A. § 1101(a)(43)(G); defendant pled guilty to such an offense here. Defendant's expert also testified that there are exceptions to mandatory deportation; a waiver may be sought or deportation may not occur, according to defendant's expert, upon proof that "it is more likely than not if he were sent back to his home country he would be tortured by the government or a group that the government cannot control." Accordingly, when determining whether a defendant has knowingly decided to plead guilty to an aggravated felony or any other offense falling within the parameters set forth in 8 U.S.C.A. § 1227, a state court will not be able to precisely define for a defendant whether his guilty plea will necessarily lead to deportation, in the way it may define the length of a prison term and other similar penal consequences that will accrue upon a guilty plea. Instead, it is enough that the court ascertain whether defendant knew at the time of the potential for deportation and that defendant has had the opportunity to avail himself of legal advice in that regard. See Chung, supra, 210 N.J. Super. at 435.

Here, it is well-established, and the PCR judge so found, that defendant knew he faced significant immigration problems. His attorney advised well in advance of the plea hearing that defendant should consult with an immigration attorney and, in fact, the PCR judge found that defendant's mother did speak with an immigration attorney. At the plea hearing, the judge also asked defendant if he understood his guilty plea could lead to deportation; defendant acknowledged that he knew. Notwithstanding these facts, defendant argues that the Sixth Amendment requires more of an attorney than a mere referral to an immigration attorney. He argues that defense counsel should have followed up with the immigration attorney to determine how certain deportation might have been and ascertain whether a different plea offer, which would permit a guilty plea to an offense that would not guarantee deportation, was available.

Certainly, what defendant now argues represents a wise course of action in any case. Indeed, defense counsel candidly testified at the PCR hearing that "in hindsight I could have done more such as retaining an immigration attorney on my own," but concluded he was not obligated to do so at the time, particularly because the plea offer was as good as it was going to get short of an acquittal at trial. And, as for going to trial, defense counsel testified without contradiction that in light of the evidence the State could have been expected to present,*fn4 it "didn't seem that a trial would have any success in this case," and that it "wasn't worth the risk" of being convicted of a first-degree offense.

The question, of course, is not whether defense counsel did everything possible to either protect defendant from deportation or to advise him of the precise immigration consequences of his guilty plea. According to the Strickland/Fritz test, a defendant is not entitled to the best legal advice available. State v. Davis, 116 N.J. 341, 351 (1989). The applicable test requires only that counsel not make "errors so serious" that he or she could not be said to be "functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; Davis, supra, 116 N.J. at 351.

In defining the level of competence required, it is understood that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." State v. Castagna, 187 N.J. 293, 314 (2006) (quoting Strickland, supra, 466 U.S. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). In addition, "there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance [and that to] rebut that strong presumption, a defendant must establish that trial counsel's actions did not equate to 'sound trial strategy.'" Strickland, supra, 466 U.S. at 688-89, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83, 93 (1955)). In applying these standards and this presumption to a conviction that has resulted from a guilty plea, it has been held that the first prong remains the same and that the second prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 210 (1985). To satisfy the second prong's 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." Ibid.

The extent to which a criminal defense attorney is obligated to provide advice to a non-citizen client regarding deportation consequences is a matter that has not been extensively explored in this State. Recently, in determining whether a legal malpractice action brought against a criminal defense attorney was time-barred, we suggested our agreement with the proposition that a criminal defense attorney who fails to pose Question 17 of the plea form to his client has failed to meet the standard of competence required by the Sixth Amendment. See, e.g., McKnight v. Office of Pub. Defender, 397 N.J. Super. 265, 268-69 (App. Div. 2007), certif. granted, 195 N.J. 419 (2008). Here, defense counsel certainly recognized that defendant was faced with the potential of deportation and made defendant aware that immigration concerns would attach to a guilty plea.

We also have no cause to disagree with those courts that have held that "an affirmative misrepresentation by counsel as to the deportation consequences of a guilty plea is today objectively unreasonable." United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002); see also Downs-Morgan v. United States, 765 F.2d 1534, 1540-41 (11th Cir. 1985); State v. Rojas-Martinez, 125 P.3d 930, 935 (Utah 2005); People v. Correa, 465 N.E.2d 507, 512 (Ill. App. 1984), aff'd, 485 N.E.2d 307 (Ill. 1985). We suggested as much in Chung, supra, 210 N.J. Super. at 434-35. Here, defense counsel made no affirmative misrepresentation and, thus, did not depart from this standard.

Counsel instead gave no advice except to recommend that defendant seek the advice of an immigration attorney. It being understood that defense counsel had no expertise in immigration matters, we view this advice to be quite reasonable and sensible. Indeed, defendant does not appear to dispute the wisdom of this. He does argue, however, that his attorney was required to do more and refers us to State v. Paredez, 101 P.3d 799 (N.M. 2004) in this regard.

In Paredez, the Supreme Court of New Mexico concluded that "criminal defense attorneys are obligated to determine the immigration status of their clients," and if the client is a non-citizen, "the attorney must advise that client of the specific immigration consequences of pleading guilty, including whether deportation would be virtually certain." Id. at 805. We reject the invitation to adopt this broad-sweeping standard that defense counsel must give affirmative advice regarding deportation consequences. The Paredez Court seems to have presupposed in adopting this rule, that all criminal defense attorneys are fully cognizant of and prepared to render sound immigration advice. We think that premise is unrealistic in most cases and that it is more likely that most criminal defense attorneys in New Jersey are not prepared to provide accurate legal advice on immigration matters. Indeed, the PCR judge's findings of fact confirm that defense counsel here was not fully familiar, nor was he expected to be familiar, with the immigration consequences of defendant's guilty plea. In addition, defendant's immigration expert appears to acknowledge that most criminal defense attorneys are not fully conversant in immigration matters, and that defendant's trial attorney appropriately referred defendant to an immigration attorney. Accordingly, the factual basis for the adoption of the Paredez standard does not exist in this case. Although we have no doubt that it would be beneficial for criminal defense attorneys in this State to gain some familiarity with federal immigration law, we refuse to hold that the attorney's failure to render affirmative advice in that regard constitutes a departure from the standard of competence imposed by the Sixth Amendment. Indeed, we are satisfied that a non-citizen defendant will often be better served by obtaining the advice of an attorney specializing in immigration matters, as recommended by defense counsel here, rather than rely on the advice of a criminal attorney less familiar with the nuances of immigration law.

We also reject that in these circumstances a standard should be imposed that would require a criminal defense attorney to meet or speak with an immigration attorney, or "follow up" regarding a defendant's circumstances, as defendant's expert testified. It is enough, for Sixth Amendment purposes, that a criminal defense attorney recognize the problem and recommend that the client pursue elsewhere the legal advice that the defense attorney feels he is unable to competently provide. Again, the question is not whether defendant was given the best advice available. Davis, supra, 116 N.J. at 351. In applying the approach required by the Strickland/Fritz standard, we must be "highly deferential" to counsel's performance and avoid "the distorting effects of hindsight." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694; State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). We, thus, agree with the PCR judge's finding that defendant failed to rebut the presumption of competence imposed by the Strickland/Fritz standard.

We also must conclude that the record does not provide any support for the contention that the second prong of the Strickland/Fritz test was met here. Defendant has failed to show that his attorney's failure to "follow up" with defendant's immigration attorney "affected the outcome of the plea process." Hill, supra, 474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed. 2d at 210. Defendant's expert asserted that had defense counsel consulted with an immigration attorney he would have learned there are types of offenses to which defendant could have pled guilty that would not necessarily require deportation. That may be so, but the record is bereft of any evidence that would suggest the State would have been willing to negotiate a plea in these circumstances to an even lesser offense than already agreed. As we have observed, the State was willing to reach an agreement to dismiss the first-degree robbery count, allow defendant to plead guilty to second-degree robbery and recommend that defendant be sentenced as a third-degree offender. Considering that defense counsel was satisfied that defendant's prospects in going to trial were bleak, it seems highly unlikely to assume that the State would be willing to offer an even better agreement than it already had. Certainly, no evidence to the contrary was presented in the trial court to suggest that a better plea offer was available to defendant.

Although defendant faces unfortunate consequences resulting from his conviction, we must conclude that he received the effective assistance of counsel guaranteed by the Sixth Amendment when he pled guilty, and that the trial judge correctly denied defendant's PCR petition.


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