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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...