April 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGEL BATISTA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Accusation Nos. 06-02-0207 and 06-01-0049.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 1, 2009
Before Judges Fisher and Baxter.
In this appeal, defendant seeks our reversal of the denial of his petition for post-conviction relief, claiming his attorney was ineffective in failing to advise him about the deportation consequences of a guilty plea. In light of the absence of any evidence that trial counsel was made aware that defendant was not a citizen -- in fact, defendant asserted under oath during his two plea hearings that he was a United States citizen -- we find no adequate evidence that counsel failed to meet the level of competency required by the Strickland/Fritz test.*fn1
The record reveals that defendant was charged in two accusations; the first charged defendant with third-degree distribution of a controlled dangerous substance (CDS) within 1000 feet of a school zone, N.J.S.A. 2C:35-7; the second charged defendant with third-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1), and a disorderly persons offense, N.J.S.A. 2C:33-2.1. Defendant pled guilty to these accusations on February 15 and March 31, 2006. These guilty pleas were entered as part of a plea bargain whereby the State agreed to a prison sentence of no more than three years on the conspiracy and distribution charges and no more than six months on the disorderly persons offense. The State and defendant also agreed that the terms would run concurrently and that defendant would be free to request a lower sentence or diversion to drug court.
Defendant was sentenced to a five-year special probationary term in drug court, N.J.S.A. 2C:35-14. Less than a year later, defendant was found to have violated the terms of probation and was sentenced to three-year concurrent prison terms on the two accusations. No direct appeal was filed.
On June 25, 2007, defendant filed a pro se petition for post-conviction relief; counsel was assigned and filed a supplemental brief. Defendant argued in the trial court that he was not a citizen and that his trial counsel failed to discuss with him the impact his conviction could have on his status as a resident. The petition was denied without an evidentiary hearing.
Defendant appealed the denial of his petition for post-conviction relief, making the following single argument:
THE COURT ABUSED ITS DISCRETION AND ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING TO DEFENDANT TO ESTABLISH HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.
We find no merit in this argument and affirm.
Prior to entering into his guilty pleas, defendant executed a plea form, which posed the following question: "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 answered "N/A," thus suggesting to the court he was a United States citizen. At the plea hearings on the two accusations that occurred on February 15, and March 31, 2006, defendant stated under oath, in response to the trial judge's questions, that he was a United States citizen.
In seeking post-conviction relief, defendant did not present a sworn statement discussing whether or to what extent he discussed his immigration status with his trial counsel. In the supplemental brief filed by assigned counsel, it is argued that the plea form, as answered by defendant, demonstrated that defendant and his attorney "had no discussion of the topic" of immigration, and that defendant was thereby reasonably led to believe the conviction would have no impact on his legal permanent residency. In addition, on the uniform intake form, [defendant's] place of birth indicated Cuba, and the question pertaining to citizenship was marked other.
The record on appeal does not include the intake form to which PCR counsel referred nor does it include a certification or affidavit from defendant as to the truth of the factual assertions contained in the supplemental brief. Moreover, defendant made no attempt to explain his apparently false sworn statements at his plea hearings that he was a United States citizen.
The State, in relying upon the answer given to the citizenship question on the plea form and the two sworn statements made by defendant at his plea hearings regarding his citizenship, argues that defendant has failed to demonstrate a prima facie case of ineffective assistance that would warrant an evidentiary hearing. The State also argues that deportation is only a collateral and not a penal consequence of a guilty plea, citing State v. Chung, 210 N.J. Super. 427 (App. Div. 1986).
We have, in one unpublished opinion, 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. State v. McIntyre, No. A-4695-05T1 (App. Div. May 17, 2007). Considering the significance of the immigration consequences of a guilty plea, we find much merit in the argument that deportation resulting from a defendant's guilty plea is a penal consequence. As the Supreme Court of the United States has said, deportation in some circumstances 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). Our Supreme Court recently granted certification to consider whether a guilty plea can be deemed knowing and voluntary when counsel has misinformed defendant about the deportation consequences of the plea. State v. Nunez-Valdez, 196 N.J. 599 (2008).*fn2
In affirming here, we need not further examine that pressing issue. Instead, because defendant has failed to demonstrate he ever advised his trial attorney that he was not a citizen, we agree with the PCR judge that defendant failed to make out a prima facie case of ineffective assistance of counsel and was not entitled to an evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Indeed, the only evidential material in the record refutes defendant's otherwise unsupported claim that he told his attorney that he was not a citizen. As we have mentioned, defendant's answer to the plea form suggested, if not declared, he was a citizen, and his two sworn statements in open court further confirmed to counsel at the time that defendant was a United States citizen.
Moreover, the question posed by a post-conviction relief petition in this setting 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. Here, although the record demonstrates that defendant has pled guilty to CDS offenses, there is nothing in the record to indicate the impact this may have on defendant's status as a United States resident. Not every offense necessarily falls within the parameters set forth in 8 U.S.C.A. § 1227 for deportation, and defendant has failed to establish -- or even discuss -- how the particular offenses in question require deportation.
Considering the lack of any evidence that defendant's trial counsel was made aware by defendant that he was not a citizen, and considering also defendant's own affirmative sworn statements that he was a citizen, we agree with the PCR judge that there was no factual dispute to examine at an evidentiary hearing and there was no merit in defendant's contention that he was deprived of the effective assistance of counsel.