October 21, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAMON LEON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 06-102 in A-6612-06T4; Middlesex County, Municipal Appeal No. 82-2006 in A-3051-07T4; Union County, Municipal Appeal No. 5827 in A-3899-07T4 and A-5789-07T4.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 16, 2010
Before Judges Skillman, Gilroy and Simonelli.
Defendant Ramon Leon appeals from three Law Division orders that denied four petitions for post-conviction relief (PCR), seeking to vacate seven municipal court convictions of shoplifting, N.J.S.A. 2C:20-11b. We affirm.*fn1
Defendant, a Cuban national, obtained his LPR status in May 1995. Between August 1998 and December 2002, defendant pled guilty to multiple disorderly persons offenses of shoplifting in four municipal courts. In each appearance, defendant waived his right to assigned counsel and represented himself pro se.*fn2
On August 14, 1998, defendant pled guilty to shoplifting in the Hazlet Township municipal court; the court sentenced defendant to thirty days in jail and imposed a monetary fine. On September 11, 1998, January 21, and August 24, 1999, defendant pled guilty to three charges of shoplifting in the Woodbridge Township municipal court; the court imposed monetary fines and sentenced defendant to three days in jail on one of the convictions. On July 9, 1998, defendant pled guilty in the Hillside Township municipal court to two charges of shoplifting; the court imposed monetary fines and sentenced defendant to sixteen days in jail. On June 6, 2002, defendant pled guilty to shoplifting in the Borough of Roselle municipal court; the court sentenced defendant to ninety days in jail with seventeen days jail credit. The court also imposed a two-year term of probation, monetary fines, and directed defendant to serve community service.
On July 18, 2006, the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), initiated removal proceedings against defendant because of his multiple convictions of shoplifting. Although a final order of removal has been issued, defendant has not been deported because of diplomatic issues between the United States and Cuba. Once those issues are resolved, defendant is subject to deportation. It is because of the removal order that defendant filed pro se petitions for post-conviction relief (PCR) seeking to vacate his guilty pleas in the four municipal courts, contending in each petition that: 1) the municipal court failed to inform him of possible federal deportation consequences associated with pleading guilty to shoplifting, and had he known of those consequences, he would not have pled guilty to the charges; 2) because of the possible deportation consequences, the court should have assigned him counsel before accepting his guilty pleas.
Defendant filed his petitions in the Roselle and Hillside municipal courts on August 5, 2006, and in the Hazlet and Woodbridge municipal courts on November 1, 2006. The municipal courts denied the petitions, and defendant appealed to the Law Division in the respective counties where the municipal courts are located.
On May 18, 2007, the Law Division, Monmouth County, entered an order denying defendant's petition filed in the Hazlet municipal court as time barred pursuant to Rule 7:10-2(b)(2), and because no obligation exists for a municipal court to inform a defendant of federal deportation consequences associated with a guilty plea. On January 22, 2008, the Law Division, Middlesex County, entered an order denying defendant's petition filed in the Woodbridge municipal court for the same reasons. On May 12, 2008, the Law Division, Union County, entered an order denying defendant's petitions filed in the Hillside and Roselle municipal courts. As to the petition filed in the Hillside municipal court, the Law Division determined that the petition was time barred. As to the petition filed in the Roselle municipal court, the Law Division denied the petition determining there was "nothing in the record to suggest that [d]efendant's guilty plea to the charge . . . was anything other than knowing and voluntary." It is from these orders that defendant appeals.
On appeal, defendant argues that where the Law Division denied his PCR petitions as time barred, the court erred in failing to find the delay in filing the petitions was due to excusable neglect. Defendant contends that the Law Division erred in finding that he had previously entered his guilty pleas knowingly, voluntarily, and intelligently, because the municipal courts had failed to inform him of potential federal deportation consequences associated with pleading guilty to the charges. Defendant asserts that if he had received such advice from the municipal courts he would not have waived his right to assigned counsel nor have pled guilty to the charges.
The State counters that where the petitions were filed more than five years after the conviction, the Law Division properly denied the petitions as time barred. Alternatively, the State asserts that there is no obligation for a municipal court to inform a defendant of potential deportation consequences before accepting a defendant's plea to the disorderly persons offense of shoplifting.
We first address defendant's argument that the Law Division erred in denying his petitions as time barred.*fn3 Defendant contends that his PCR petitions are not procedurally barred because the delay in filing was due to excusable neglect; that is, he was not aware or informed of the deportation consequences associated with his guilty pleas until he was taken into custody by ICE in July 2006. Under the facts presented, we agree.
Rule 7:10-2(b)(2) requires a person convicted of an offense in municipal court to file a PCR petition based on grounds other than to correct an illegal sentence within "five years after entry of the judgment of conviction or imposition of the sentence sought to be attacked, unless it alleges facts showing that the delay in filing was due to defendant's excusable neglect." Under the rule governing criminal practice in the Superior Court in effect at the time defendant filed his PCR petitions, the Law Division could also relax the five-year time bar only if the defendant alleged "facts showing the delay beyond said time was due to the defendant's excusable neglect."
R. 3:22-12(a). Because the relaxation provision in the two rules were identical when defendant filed his petitions, judicial decisions construing Rule 3:22-12(a) are precedential in determining whether a defendant has shown sufficient reasons justifying relaxation of the five-year time period under Rule 7:10-2(b)(2).*fn4
When necessary to remedy an "injustice" if the five-year time period was strictly enforced, courts have considered the defendant's application to relax the time bar in Rule 3:22-12(a) pursuant to Rule 1:1-2. State v. Mitchell, 126 N.J. 565, 576-80 (1992). In applying Rule 1:1-2, the court must determine whether there are exceptional circumstances to relax the time bar. Id. at 580. In so doing, the court should consider, the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an "injustice" sufficient to relax the time limits. As we have made clear, the longer the time-span since the original trial, the more difficult a retrial becomes. Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay. The prejudice to the State's ability to litigate the case after a long delay is also relevant. If the key witnesses are unlikely to be available, evidence has disappeared or other obstacles are present, allowing the petition for post-conviction relief will unduly prejudice the State's ability to bring its case. These concerns must, however, be balanced against the significance of the petitioner's interest in raising his or her petition . . . . In other words, a court should determine that the procedural rule as applied is unjust only when a significant liberty interest is at stake and the petitioner has offered something more than the bare allegation that that is so.*fn5
We are satisfied that the petitions should not have been barred as untimely under Rule 7:10-2(b)(2) because the events establish that defendant will suffer an injustice if the time limit is not relaxed. State v. DiFrisco, 187 N.J. 156, 168 (2006); Mitchell, supra, 126 N.J. at 579-80. It is clear that the 2006 deportation proceedings were the catalyst for seeking the withdrawal of his guilty pleas. For the earliest convictions, the delay in filing the PCR petitions is eight years, three beyond the time limit. Although the State might be prejudiced if it were to try these cases long after the arrests, that prejudice is greatly mitigated by the fact that defendant completed his jail sentences on those convictions. However, on the other side of the coin, defendant continues to face the devastating consequence of being deported to Cuba. We conclude that the importance of his claim outweighs any consideration of prejudice to the State.
The State, citing State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002), aff'd, 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004), contends defendant's ignorance of the effects of his pleas upon his immigration status does not justify relaxing the five-year time period. We find Merola distinguishable. In Merola, the defendant filed his PCR petition claiming ineffective assistance of counsel fifteen years after his murder conviction when he had been represented by three attorneys other than his trial counsel, on his direct appeal and on two habeas corpus petitions. 365 N.J. Super. at 217-18. As the court noted, those three attorneys had the opportunity to "review and analyze the trial record following [defendant's] conviction and prior to the commencement of the present action." Id. at 218. By contrast, defendant was never represented by an attorney in connection with any of the shoplifting charges before he filed his petitions.
We next address defendant's argument that his pleas were not entered knowingly, voluntarily, and intelligently because the municipal courts failed to inform him of the potential federal deportation consequences associated with entering guilty pleas to the charges. Defendant asserts that had he been so informed, he would not have waived his right to assigned counsel; and he would not have pled guilty, but rather would have proceeded to trial on each charge. Alternatively, defendant contends that because of his immigration status, the municipal courts should have assigned him counsel to discuss his possible deportation if he pled guilty.
In the appeals where the Law Division denied defendant's petition as time barred, we would generally remand those matters to the Law Division. However, because the issue concerns a matter of law, not disputed facts, and the issue has been fully briefed by the parties, we choose to exercise original jurisdiction and resolve the matters on their merits. R. 2:10-5; see O'Shea v. N.J. School Const. Corp., 388 N.J. Super. 312, 319 (App. Div. 2006).
The relief sought by defendant in each PCR petition was to withdraw his guilty pleas post-sentence. A court may grant such relief to "correct a manifest injustice." R. 7:6-2(b). In deciding whether to grant the relief requested, the court must consider and balance four factors: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." State v. Slater, 198 N.J. 145, 157-58 (2009).
Defendant failed to present evidence supporting the first Slater factor. A review of the petitions filed in the municipal courts discloses that defendant never voiced his innocence to any of the charges. Accordingly, the first Slater factor weighs against permitting withdrawal of the guilty pleas.
Nor can defendant demonstrate that the second factor weighs in his favor. Defendant's primary argument in support of his request to withdraw his guilty pleas is that the municipal courts failed to advise him of the potential deportation consequences attached to the guilty pleas.
A defendant charged with having committed the disorderly persons offense of shoplifting, N.J.S.A. 2C:20-11b, is subject to possible incarceration of six months, N.J.S.A. 2C:20-11c(4), and N.J.S.A. 2C:43-8. A defendant who is convicted of a third or subsequent offense "shall serve a minimum term of imprisonment of not less than 90 days." N.J.S.A. 2C:20-11c(4). Thus, a defendant charged with a disorderly persons offense of shoplifting must be informed by the municipal court of his or her right to retain counsel, or, if he or she cannot afford counsel, to have counsel assigned to represent the defendant against the charge. Rodriguez, supra, 58 N.J. at 295; R. 7:3-2(b); see also Guidelines for Determination of a Consequence of Magnitude, Pressler & Verniero, Current N.J. Court Rules, Appendix to Part VII at 2355 (2011). Additionally, a municipal court shall not accept a guilty plea from a defendant unless it is satisfied that the "plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea and that there is a factual basis for the plea." R. 7:6-2(a)(1). There is, however, a limit to the consequences of which a defendant needs to be informed. In considering defendant's argument that the municipal courts were obligated to advise him of potential deportation consequences attached to pleading guilty to the charges, we view the argument in light of the applicable law as it existed at the time defendant entered his pleas in 1998, 1999, and 2002.
Historically, whether a court must inform a defendant of the consequences of pleading guilty to a charge, depended on whether the consequences were considered "'direct or penal,'" rather than "'collateral.'" State v. Bellamy, 178 N.J. 127, 137 (2003) (quoting State v. Heitzman, 209 N.J. Super. 617, 622 (App. Div. 1986), aff'd o.b., 107 N.J. 603 (1987)). If the consequence was direct or penal, the court was required to inform the defendant of the consequence before accepting a guilty plea; if the consequence was only collateral, although it may have a detrimental effect upon the defendant, the court was not required to advise the defendant of the consequence. Ibid.; accord, State v. Johnson, 182 N.J. 232, 236 (2005). New Jersey courts had previously held that federal deportation consequences attaching to a guilty plea were collateral in nature, not penal or direct. Heitzman, supra, 107 N.J. at 604. Because federal deportation was considered a collateral consequence of a plea, municipal courts were not obligated at the time defendant entered his guilty pleas to inform defendants of that consequence before accepting their guilty plea. Heitzman, supra, 107 N.J. at 604; see also State v. Garcia, 320 N.J. Super. 332, 336-37 (App. Div. 1999); State v. Chung, 210 N.J. Super. 427, 433 (App. Div. 1986).
We acknowledge that the Supreme Court in State v. NunezValdez, 200 N.J. 129, 138 (2009) has, in considering an ineffective assistance of counsel claim, recently addressed the issue of whether an attorney has an obligation to advise his or her client of possible federal immigration consequences before the defendant pleads guilty to a criminal offense. In NunezValdez, the Court addressed the claim under the New Jersey Constitution based on the defendant's attorney misinforming the defendant as to immigration consequences when defendant entered a guilty plea. 200 N.J. at 139-40. The Court held that counsel's misinformation could form a basis to vacate a guilty plea under the two-prong standard of Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698 (1984). Id. at l43. In so holding, the Court reaffirmed its prior approval of Chief Justice Wilentz's observation in his dissent in Heitzman, supra, "that whether a defendant should be advised of 'certain consequences of a guilty plea should not depend on ill-defined and irrelevant characterizations of those consequences.'" Id. at 138 (quoting Bellamy, supra, 178 N.J. at 139); see Heitzman, supra, 107 N.J. at 606, (Wilentz, C.J., dissenting) ("It matters little if the consequences are called indirect or collateral when in fact their impact is devastating.").
The Court distinguished Bellamy, which held that "fundamental fairness requires that the trial court inform a defendant of the possible consequences" of civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38, 178 N.J. at 138, stating that the plea form that NunezValdez "signed included question seventeen, which is intended to alert a defendant that there may be deportation consequences as a result of a plea of guilty. Thus, we presently treat deportation similar to a penal consequence that requires notice to defendant." Nunez-Valdez, supra, 200 N.J. at 138. The Court acknowledged that the plea form required further refinement and approved of the suggested addition informing defendants of the consequences of a guilty plea to an aggravated felony and "of their right to seek legal advice regarding their immigration status." Id. at 144. Finally, the Court stated that "it is preferable that the trial court inquire directly of defendant regarding his knowledge of the deportation consequences of his plea."*fn6 Ibid.
This is not an ineffective assistance of counsel case. Defendant was not represented by counsel at any of his municipal court appearances, having waived that right. The issue is solely whether a municipal court was obligated at the time defendant entered his guilty pleas to inform a defendant of possible deportation consequences before accepting the defendant's guilty plea to the charge of shoplifting. We conclude that such an argument is foreclosed by Garcia and Chung. Although the Court is possibly moving in the direction of imposing that requirement, Nunez-Valdez, supra, 200 N.J. at 138 ("we presently treat deportation similar to a penal consequence that requires notice to defendant"), and id. at 144 ("it is preferable that the trial court inquire directly of the defendant regarding his knowledge of the deportation consequences of his plea"), the court did not explicitly break from Garcia and Chung by holding that federal deportation consequences are penal in nature.
Moreover, unlike twenty-six other jurisdictions, see Padilla, supra, ___ U.S. at ___ n.15, 130 S.Ct. at 1486, 176 L.Ed. 2d at 299, New Jersey does not have a statute, court rule, or appellate court decision that requires New Jersey courts to inform defendants of immigration consequences before the defendants enter guilty pleas. Thus, at the time defendant entered his guilty pleas, municipal courts were only obligated to follow the requirements of Rule 7:6-2(a)(1) as amended effective February 1, 1998, that is, the judge was required to engage with a defendant to ensure that the plea was made "voluntarily with [an] understanding of the nature of the charge and the [penal] consequences of the plea and that there is a factual basis for the plea."*fn7
Additionally, municipal courts are not required to have a defendant complete a "plea form" as in the Superior Court, before accepting a defendant's guilty plea. See Admin. Office of the Courts, Directive # 14-08, Criminal Pleas Forms and Judgment of Conviction, Attachment 1 (2008), amended by Directive # 08-09, Criminal Plea Forms-Amendments to Two Forms (2009). Nor are municipal courts required to enter an arraignment/status conference order as in the Superior Court. See Admin. Office of the Courts, Directive # 6-03, Implementation of Criminal Division Court Event Forms, (2003), revised by Supplement to Directive # 06-03 Criminal - Assignment/Status Conference Order - Revision to Address State v. Nunez-Valdez, (Aug. 20, 2010) (requiring the Superior Court to instruct defense counsel "to discuss with the defendant his/her immigration status, the potential consequences of a guilty plea or convictions and his/her right to seek legal advice on his/her immigration status" pursuant to Nunez-Valdez).
What is more, we are not convinced that even if defendant was permitted to withdraw his guilty pleas because the municipal courts failed to inform him of possible federal deportation consequences associated with pleading guilty to the charges, that defendant would not have been subject to deportation for other reasons. In addition to defendant's shoplifting convictions, he was convicted of three crimes. He was convicted of third-degree burglary, N.J.S.A. 2C:18-2, on March 21, and July 11, 2003. The first conviction followed a jury trial; the second conviction resulted from defendant's guilty plea. State v. Leon, No. A-3265-06 (App. Div. September 22, 2009), (slip op. at 2), certif. denied, 201 N.J. 154 (2010). On April 21, 1999, defendant pled guilty to the fourth-degree offense of unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10d. State v. Leon, No. A-5193-07 (App. Div. August 4, 2010), (slip op. at 2).
Because at the time defendant entered his guilty pleas, New Jersey did not have a statute, court rule, or appellate court decision requiring that a municipal court inform a defendant of possible federal deportation consequences before pleading guilty to a disorderly persons offense of shoplifting, and there is a substantial probability defendant will be subject to deportation because of his three criminal convictions, defendant cannot satisfy Slater factor (2). Accordingly, defendant has failed to establish that he would suffer a "manifest injustice" by the orders denying his petitions for PCR seeking to vacate his guilty pleas. R. 7:6-2(b).