July 18, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAJIV ABROL, DEFENDANT-APPELLANT
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-01-00137.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 22, 2011
Before Judges A.A. Rodriguez and LeWinn.
Defendant appeals from the July 13, 2010 order denying his petition for post-conviction relief (PCR). We reverse.
In 2007, defendant was indicted for second-degree theft, N.J.S.A. 2C:20-3; second-degree theft by deception, N.J.S.A. 2C:20-4; second-degree misapplication of entrusted property, N.J.S.A. 2C:21-15; and second-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25(b)(1) and (2)(a). The victim of these offenses was defendant's then-employer, MD Distributors, Inc.
Defendant is a native of India. At the time of his arrest in October 2007, his immigration status was "nonimmigrant worker," which classification was valid as long as he remained employed by MD Distributors. After his arrest, defendant wrote a series of letters to the attorney he had retained to represent him on these charges, protesting his innocence and expressing concerns about his immigration status.
On March 28, 2008, defendant entered into a negotiated plea agreement whereby he pled guilty to second-degree theft by deception with the understanding that it would be treated as a third-degree offense for sentencing purposes. On his plea form, defendant circled "yes" in response to question 17, indicating that he understood that he "may be deported by virtue of [his] plea of guilty[.]" At his plea hearing, defendant engaged in the following colloquy with the judge:
THE COURT: . . . [D]o you understand that, as someone who is not a citizen of the United States, that it is possible that you may be deported based upon a criminal conviction? You understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: That the [c]court has nothing to do with that. But it's a possibility, when someone is convicted in court, that the immigration authorities may seek to deport [him]. Understood?
THE DEFENDANT: Yes, your Honor.
Defendant acknowledged that he had reviewed the plea form with his attorney who had answered all his questions, and that he was satisfied with his attorney's services. In his factual basis, defendant stated that he was the Chief Financial Officer of MD Distributors; in that capacity he diverted over $75,000 to his personal use without permission.
On June 17, 2008, defendant was sentenced to a three-year term of imprisonment; he was ordered to pay the appropriate statutory fines and assessment, and a restitution hearing was to be scheduled. His pre-sentence report (PSR) contained a statement indicating that defendant "is a lawful permanent resident and does not have a deportable charge." The source of this statement is not noted. Nonetheless, an immigration detainer was lodged against defendant on July 10, 2008.
Defendant filed a pro se PCR petition in or about February 2010, claiming ineffective assistance of counsel. He then retained counsel who filed a supplemental petition on March 18, 2010, which included a motion to vacate his plea. Defendant submitted an affidavit stating that his prior attorney advised him that "immigration authorities would not care or try to deport [him], and [the charges] would have no effects on [his] immigration matters."
A plenary hearing was held on defendant's petition on June 17, 2010. Defendant and his plea counsel testified.
Defendant testified that he has been in the United States continuously since 2001 on a work visa; he was in that status at the time of his arrest. He retained his prior attorney in November 2007, and advised him of his immigration status. He persistently inquired about the effect of his charges on his status and was told that he would "not be deported because [his] crime is not deportable."
Defendant acknowledged that his attorney went "through the plea form" with him at the plea hearing, but denied that counsel discussed question 17 with him regarding immigration status. He acknowledged that the judge had advised him of possible immigration consequences, and he answered "yes" to the judge's questions because his attorney had told him "don't worry about it." After serving twenty-six months on his sentence, he was transferred to an immigration facility. He "came to know" that because his sentence was for a term of more than one year, "there w[ould] be an automatic detainer on [him]."
Defendant testified that the Federal Bureau of Investigation (FBI) has been in contact with him since the detainer was lodged, because "they have some information against the person who put [him] in this situation. And they are looking for [defendant's] help as a State . . . or Federal witness." His deportation had been deferred for at least one year pending the outcome of the FBI investigation.
Defendant stated that he pled guilty because his attorney told him that, with a three-year sentence, he would be parole eligible in nine months and that he would be released at that time; his attorney made him fearful of taking a chance at trial. He asserted that, had he known of the immigration consequences, he would not have pled guilty and "probably would have gone for a trial[,]" adding that he had consistently told his attorney that he was innocent and had been "framed."
Defendant's prior attorney testified. He "never checked on"
defendant's immigration status, believing he was "a legal resident."
Defendant "probably did ask [him] something to th[e] effect" of what
would happen to him as a result of the charges. His "answer to him
would have been, I don't do that kind of work. That he would have to
find out in [i]mmigration [c]court." He could not recall if defendant
ever requested that he contact an immigration lawyer, but he never did
so on defendant's
behalf. He "thought [defendant] would have had some kind of a hearing
before immigration. He would have been able to fight to remain in the
Counsel denied that he ever told defendant he would not be deported, adding that he "would not give immigration advice to anyone, because [he doesn't] practice in the area." He recalled the statement in the PSR that defendant's charges were not "deportable" and testified that he would have read that entry to defendant. Counsel also acknowledged a letter his law partner wrote to defendant on July 8, 2008, noting that "the probation department already contacted immigration, and the [PSR] clearly reflects that your crime is not deportable."
The judge rendered a decision from the bench on July 13, 2010. He found that prior counsel had given defendant "bad or wrong information regarding the consequences of his guilty plea." Therefore, the judge found that defendant had established the first prong of the test for demonstrating ineffective assistance of counsel, namely that "[c]counsel's assistance was not within the range of competence demanded of
[a]ttorneys in a criminal case[.]"
However, the judge found that defendant had failed to
prove, by a preponderance of the evidence, that "he would not have
pled guilty but for the information that he had
received." The judge noted that defendant was facing "very serious
charges that could have resulted in his being sentenced to prison for
a considerabl[y] longer period of time." The judge concluded that
defendant "pled guilty primarily so that he could take advantage of a
plea agreement that would have allowed him to be almost immediately
released." Therefore, the judge did not "believe that the
misinformation that [defendant] received from his [a]attorney was a
critical factor in causing him to plead guilty."
The judge noted that defendant had answered "yes" to the judge's questions concerning possible immigration consequences, while harboring advice to the contrary that he allegedly had received from his attorney, which caused him to believe he would face no such consequences. Moreover, the judge noted that, now protesting his innocence, defendant also apparently "pled guilty to something he wasn't guilty of." The judge considered this conduct to constitute "a fraud upon the [c]court," which, in turn, "raise[d] significant questions about [defendant's] credibility, when he tells this [c]court that he would never have pled guilty had he known he might be deported."
On appeal, defendant raises the following contentions for our consideration:
The Trial Court Utilized the Correct Test for Post Conviction Relief Applications.
The Trial Court Was Correct in Finding Prior Counsel Provided Misinformation Regarding the Immigration Consequences of His Plea.
The Trial Court Made Three Major Errors in Its Fact Findings Regarding Whether or Not Defendant Would have Accepted the Guilty Plea Had He Known the True Consequences of His Plea.
A. The Trial Court Erred in Ignoring the Evidence Presented by Defendant Regarding the Importance of His Immigration Status in His Testimony and Letters to His Prior attorneys.
B. The Trial Court Erred in Finding [Defendant] Would Have Accepted the Plea Because of the Penal Risk Involved.
C. The Trial Court Erred in Finding there Was No Evidence of the Innocence of the Defendant.
The Trial Court Made Six Major Errors in Its Conclusions of Law Regarding the Post Conviction Relief Petitions, Immigration Law and Defendant's Status in the United States.
A. The Trial Court Found Defendant Committed a Fraud on the Court for Trusting Prior Counsel.
B. The Trial Court Reasoned that No [sic] Defendant Could Merit Post Conviction Relief.
C. The Trial Court Did Not Understand the Fact that Defendant Has Been Ordered Deported.
D. The Trial Court Erred in Finding the Defendant Has Viable Immigration Options To Stay Here Indefinitely.
E. The Trial Court Never Adequately Addressed the Fact that No One, Not Even the Court, Ever Told Defendant His Plea Mandated Automatic Deportation.
F. The Trial Court Did Not Understand that Aggravated Felons Are Prohibited from Lawful Permanent Residence.
Proper Analysis of Defendant's Petition Clearly Shows He Merits Relief.
Having reviewed these contentions in light of the record, we are satisfied that the judge's findings with respect to defendant's proofs on the so-called "prejudice prong" of the test for ineffective assistance of counsel, are not supported by sufficient credible evidence of record. Therefore, we reverse.
A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.
The Strickland test applies to challenges to guilty pleas based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). To meet the second prong of the test, "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." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210. See State v. DiFrisco, 137 N.J. 434, 456-57 (1994) (adopting the test in Hill v. Lockhart with respect "to challenges of guilty pleas based on ineffective assistance of counsel").
In State v. Nunez-Valdez, 200 N.J. 129, 138-43 (2009), the Court clearly recognized that a defendant who receives erroneous legal advice as to the deportation consequences of a guilty plea has established that his attorney's assistance fell below an objective standard of reasonableness. Here, the judge found that defendant had satisfied this prong; the State does not contest that finding on appeal.
A further inquiry is necessary, however, regarding the so-called "prejudice prong." Defendant must demonstrate that he would not have pled guilty had he received correct legal advice regarding deportation consequences. Id. at 142.
Here, defendant maintained that he relied upon his attorney's erroneous advice, notwithstanding the judge's questions to the contrary at his plea hearing. Whether that constituted a "fraud upon the court" as the judge concluded, is not dispositive of this issue. The fact remains that defendant protested his innocence and expressed concerns about his immigration status starting shortly after his arrest in his substantial correspondence to his attorney.
Moreover, it is undisputed that defendant was, at the time of the PCR
hearing, cooperating with an FBI investigation related to "some
information against the person who put [defendant] in this situation."
The judge specifically
overruled the prosecutor's objection to this evidence based on
We will normally "defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999).
The aim of [appellate] review at the outset is rather to determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record. . . . When the reviewing court is satisfied that the findings and result meet this criterion, its task is complete and it should not disturb the result .
But if the appellate tribunal is thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction, then, and only then, it should appraise the record as if it were deciding the matter at inception and make its own findings and conclusions. . . . [T]hat which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made. [State v. Johnson, 42 N.J. 146, 162 (1964) (internal citations omitted).]
Our review of the record convinces us that this is such a case; the judge's credibility determinations, which, in turn, led him to conclude that defendant had failed to meet the "prejudice prong" of the test for ineffective assistance of counsel, were "clearly . . . mistaken . . . and so plainly unwarranted" that our "intervention and correction" are necessary. Ibid.
As noted, defendant's concern about his immigration status was apparent immediately from the time of his arrest, as evidenced by his letters to counsel. The PCR judge agreed with defendant's claim that plea counsel gave him "bad or wrong information regarding the consequences of his guilty plea." Defendant testified that, fortified by that erroneous advice, and because his attorney made him fearful of taking a chance at trial, he decided to accept the plea offer.
That plea offer was favorable, insofar as defendant faced four second-degree offenses, each carrying a maximum sentence of ten years. Nevertheless, we are satisfied that defendant was motivated at least as much by the erroneous immigration advice he received from plea counsel as by the plea offer. That was his testimony and, again, it was unrebutted by any evidence of record.
We, therefore, reverse the order denying defendant's PCR petition and remand the matter for trial; the State and defendant are not precluded from engaging in new plea negotiations.
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