April 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
JUAN JOSE CASTILLA, A/K/A JUAN JOSE CONTRA, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-06-1205.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 3, 2011 -
Before Judges Fuentes and Ashrafi.
By our leave, the State appeals from an order of the trial court granting defendant Juan Jose Castilla's petition for post-conviction relief (PCR) under Rule 3:22. The trial court applied the holding of Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), to conclude that defendant had been denied effective assistance of counsel because his attorney at the time of his guilty plea did not adequately advise him that the conviction would result in his deportation.
The New Jersey Supreme Court has now held that Padilla is not retroactively applicable to convictions on collateral review. State v. Gaitan, ___ N.J. ___, ___ (2012) (slip op. at 40-42). Therefore, we reverse the trial court's order granting PCR and reinstate defendant's conviction.
Defendant was born in Peru in 1952. He immigrated to the United States in 1991 and became a legal permanent resident. He is not a United States citizen.
In March 2001, defendant was arrested when a West New York police officer observed him acting surreptitiously in an alleyway and found in his possession a bag containing a blow torch, a hacksaw, and stolen merchandise. Defendant was indicted on a charge of fourth-degree receiving stolen property, N.J.S.A. 2C:20-7. At that time, defendant was already serving a term of probation for an October 2000 conviction for third-degree burglary, N.J.S.A. 2C:18-2.
In January 2002, defendant entered into a plea agreement for the pending indictment and several additional charges. He pleaded guilty to receiving stolen property, to violation of probation on his prior burglary conviction, and to new accusations charging third-degree burglary of automobiles on two separate dates, N.J.S.A. 2C:18-2. At the plea hearing, the court did not question defendant specifically about his citizenship or immigration status, but the court's colloquy with defendant under Rule 3:9-2 included his acknowledgement that he was entering the pleas knowingly and voluntarily, that he had discussed with his attorney the provisions of his written plea agreement, and that he understood the terms of his plea agreement. On the plea agreement form, Question 17 asked: "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 yes. During the plea colloquy, defendant initially equivocated regarding his involvement in the crimes, but eventually he made admissions sufficient to establish factual bases for the crimes to which he was pleading guilty. The court accepted the guilty pleas.
At defendant's sentencing on April 11, 2002, the court noted his criminal record: six disorderly persons convictions, mostly for theft offenses, and the four indictable theft-related offenses described here, three third-degree charges of burglary and the fourth-degree charge of receiving stolen property.*fn1 The court followed the terms of the plea agreement and sentenced defendant to concurrent terms of imprisonment on the separate charges, the longest term being five years imprisonment with two-and-a-half years before parole eligibility. Defendant did not file a direct appeal from his convictions and sentences. He served the terms of imprisonment and was released.
In February 2009, defendant learned that a warrant had been issued for his arrest by Immigration and Customs Enforcement (ICE), an agency of the United States Department of Homeland Security. By March 16, 2009, he was under arrest and held in detention by ICE. A deportation hearing was scheduled based on defendant's 2002 convictions fitting the definition of "aggravated felony," thus making him subject to deportation under federal law. See 8 U.S.C. §§ 1101(a)(43)(G) and 1227(a)(2)(A)(iii). On January 28, 2010, the United States Immigration Court ordered defendant deported to Peru.
Before deportation was ordered, however, on August 3, 2009, defendant filed his PCR petition in State court, seeking to vacate his 2002 convictions. He alleged ineffective assistance of counsel in violation of federal and State constitutional rights because his attorney at the time of the guilty pleas had not discussed with him the effect of his criminal convictions on his immigration status. He claimed he would not have pleaded guilty if he had been advised he would be deported.
At the evidentiary hearing on the PCR petition, the trial court heard testimony from three witnesses: defendant, his attorney at the time of the pleas, and an immigration attorney. In January 2010, the court expressed orally its tentative inclination to deny defendant's PCR petition, finding that defendant had not been given misinformation about the immigration consequences of his guilty pleas, as were the circumstances in State v. Nunez-Valdez, 200 N.J. 129, 131 (2009), and State v. Garcia, 320 N.J. Super. 332, 341 (App. Div. 1999). The court found that defendant understood he may be deported as a result of his guilty pleas. Nevertheless, the court withheld final decision on the petition pending its review of transcripts of the 2002 proceedings.
On March 31, 2010, before the trial court announced its final decision, the United States Supreme Court issued Padilla, supra, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284. The Supreme Court held that criminal defense counsel must not only avoid giving incorrect advice about immigration consequences but must affirmatively give correct advice when "the deportation consequence is truly clear." Id. at __, 130 S. Ct. at 1484, 176 L. Ed. 2d at 296.
On June 1, 2010, the trial court placed an oral decision on the record. It found that the only advice defendant received about the immigration consequences of his guilty pleas was his attorney reading to him the previously-quoted Question 17 of the plea form, and that the attorney thus provided ineffective assistance by failing to give adequate correct advice. The court concluded that a review of the applicable federal statutes would have readily revealed the certainty of defendant's deportation because of the guilty pleas and convictions. Finally, the court found that defendant would not have entered the guilty pleas but would have stood trial on the charges had he known he was certain to be deported.
Based on those findings and conclusions, the court held that defendant had met his burden of proving ineffective assistance of counsel under the standards established in Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); and State v. Fritz, 105 N.J. 42, 58 (1987). The court vacated the convictions and reinstated the 2002 charges for trial. It also denied the State's motion for a stay. Subsequently, we granted the State's motion for leave to appeal, but we denied a stay.
In the meantime, defendant had filed a federal appeal of the deportation order and a motion in the United States Immigration Court to re-open his deportation hearing. On August 3, 2010, that court granted his application, vacated the prior order of deportation, and terminated the immigration case without prejudice because defendant's convictions had been vacated. Defendant was released from federal detention.
On a PCR appeal, our standard of review is plenary on questions of law, but the factual findings of the trial court are granted deference if they are supported by adequate, substantial, and credible evidence. See State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).
While this appeal by the State was pending, the Supreme Court of New Jersey issued an order staying all PCR matters in this State that alleged ineffective assistance of counsel based on the holding of Padilla pending the Court's hearing of two appeals that raised the issue of whether Padilla should apply retroactively to past guilty pleas on collateral review. The stay was lifted by the Court's decision in Gaitan, supra, ___ N.J. ___, on February 28, 2012.
The Court held in Gaitan that Padilla announced a new rule of constitutional law and that the new rule does not apply retroactively to guilty pleas beyond direct appellate review. Id. at ___ (slip op. at 40-42). Consequently, the basis for the trial court's decision in this case has now been abrogated by the New Jersey Supreme Court.
It is apparent from a review of the PCR record that the trial court found no ground to grant defendant's PCR petition other than application of the new Padilla rule. The court concluded that the reading of the plea form and its Question 17 was inadequate legal advice to defendant regarding the probability that he would be deported. Earlier during the PCR hearings, the court had tentatively rejected defendant's contention that Nunez-Valdez, supra, 200 N.J. 129, also required that his conviction be vacated. The holding of Nunez-Valdez was limited to ineffective assistance of counsel resulting from incorrect or misleading advice about deportation, not failure to give adequate advice. Id. at 143. The Court did not hold that advising a client he may be deported, as stated in Question 17, was incorrect or deficient legal advice. See id. at 138, 143.
In the concluding paragraphs of its opinion, the Court in Nunez-Valdez accepted recommendations from amici curiae that Question 17 should be revised to give more precise advice about immigration and deportation consequences of certain convictions. Id. at 144. The Court's directive, however, was not equivalent to a finding of ineffective assistance of counsel. Until Padilla was issued, Question 17 in our plea form had not been pronounced incorrect or inadequate legal advice.
As the New Jersey Supreme Court has now held, Padilla expanded defense counsel's duties to require more precise advice when the law is "truly clear" that deportation is "presumptively mandatory." Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295-96. That expansion of counsel's duties is a new rule of law and a departure from prior practice in our courts. Gaitan, supra, ___ N.J. at ___ (slip op. at 10-11, 41). Failure of counsel to fulfill those duties before Padilla was decided may not be attacked on collateral review of a conviction. Id. at ___ (slip op. at 42).
Because the legal basis for vacating defendant's conviction has been abrogated by Gaitan, we now reverse the trial court's decision and reinstate defendant's guilty pleas and convictions.