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State of New Jersey v. Miguel A. Gutierrez

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 18, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MIGUEL A. GUTIERREZ, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-12-3652.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 7, 2010

Before Judges Carchman and Graves.

In a four-count indictment, defendant Miguel Gutierrez was charged with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(2); fourth-degree unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5(d); and third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). On March 16, 2009, defendant pled guilty to third-degree aggravated assault. In exchange for the plea, the State agreed to dismiss the remaining charges and further agreed to recommend a three-year prison term. The court sentenced defendant in accordance with the negotiated plea agreement.

In this direct appeal from the judgment of conviction dated June 5, 2009, defendant's attorney argues that defendant should be allowed to withdraw his plea because he has been "a long time lawful permanent resident of the United States" and "was never advised of the immigration consequences of his guilty plea."

For the reasons that follow, we affirm the judgment of conviction without prejudice to defendant's right to file a Rule 3:21-1 motion to withdraw the plea or a petition for post- conviction relief.

Prior to entering his plea, defendant completed a plea form with his attorney. Questions 17.a and 17.b asked: "Are you a citizen of the United States?" and "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 possible answers were "Yes" and "No," and "Yes" was circled next to both questions. Defendant also confirmed that he understood all of the questions on the plea form and that he provided truthful answers:

THE COURT: . . . Sir, do you understand what you're charged with?

THE DEFENDANT: Yes, sir.

THE COURT: Have you had enough time to discuss the matter with [your attorney]?

THE DEFENDANT: Yes.

THE COURT: Has he answered all your questions?

THE DEFENDANT: Yes.

THE COURT: And are you satisfied with his services to you, sir?

THE DEFENDANT: Yes.

THE COURT: Have you and he gone over the plea form that's spread on the table in front of you?

THE DEFENDANT: Yes.

THE COURT: Do you understand all the questions?

THE DEFENDANT: Yes.

THE COURT: Did you give [your attorney] truthful answers?

THE DEFENDANT: Yes.

THE COURT: Did he write your answers as you gave them to him for you on that form?

THE DEFENDANT: Yes.

THE COURT: Did you review the answers after he wrote them?

THE DEFENDANT: Yes.

THE COURT: And, finally, sir, did you sign and initial the forms certifying they contain your truthful answers?

THE DEFENDANT: Yes.

Defendant's presentence report also stated that he was a United States citizen. At sentencing, defendant's attorney indicated that he had reviewed the report with defendant and there were no changes. In addition, when questioned by the court, defendant confirmed that the information in the report was correct.

Defendant cites to State v. Nunez-Vald z, 200 N.J. 129 (2009), for the proposition that his attorney was ineffective for failing to advise him of the immigration consequences of the plea. However, that case is factually distinguishable. In Nunez-Vald z, the Court determined that the defendant's guilty plea would be vacated because his attorney provided misleading information regarding the deportation consequences of the plea:

In short, the trial court accepted defendant's testimony that he would not have pled guilty if he had known he would be deported, and found that defendant did not give a knowing, voluntary or intelligent plea. Based on the trial court's findings, which are amply supported by the record, defendant satisfied the prejudice prong of the ineffective-assistance-of-counsel analysis by showing that he would not have pled guilty but for the inaccurate information from counsel concerning the deportation consequences of his plea. Accordingly, we . . . reinstate the trial court's order that directed withdrawal of defendant's plea and reinstatement of the matter for trial.

[Id. at 143.]

In this case, however, defendant does not claim that he pled guilty because he received bad advice from his attorney. Instead, he asserts that either his attorney or the court had an affirmative obligation to warn him of the potential deportation consequences of his plea even though he repeatedly represented he was a United States citizen.

Defendant also relies on Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). In Padilla, the Court held that "when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear." Id. at __, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296. "[A]ffirmative misadvice" is not required. Id. at __, 130 S. Ct. at 1484, 176 L. Ed. 2d at 296. In this case, however, there has been no showing that defendant informed his attorney or the court that he was not a United States citizen. Consequently, defendant has failed to demonstrate that it was "truly clear" to his attorney or the judge who accepted the plea that defendant might be subject to deportation.

Because the record before us is limited to the plea and sentencing hearings and the appellate briefs, we affirm the judgment of conviction without prejudice to defendant's right to file a motion to withdraw his plea or a petition for post- conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992) ("Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding.").

Affirmed.

20110218

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