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State of New Jersey v. Juan Pablo Santos

May 8, 2012

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JUAN PABLO SANTOS, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Appellate Division.

The opinion of the court was delivered by: Justice LaVecchia

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized.)

State v. Juan Pablo Santos

(A-114-10) (067989)

Argued January 18, 2012

Decided May 8, 2012

LaVECCHIA, J., writing for a majority of the Court.

In this appeal the Court considers whether a post-conviction relief (PCR) petitioner -- permanently removed from the United States to Mexico -- could have his testimony taken by telephone or video communication at an evidentiary hearing.

In June 2005, police discovered Juan Pablo Santos naked and in bed with a fourteen-year-old girl. He was arrested and, after receiving Miranda warnings, admitted that he lived with the girl and that they had an ongoing sexual relationship. Santos was indicted by an Ocean County grand jury on one count of second-degree sexual assault and one count of third-degree endangering the welfare of a child. The State proposed a plea agreement under which Santos would plead guilty to third-degree endangering the welfare of a child in exchange for the State's agreement to drop the sexual assault charge and recommend that his term of imprisonment be limited to time served. Santos would also be required to register as a sex-offender and submit to lifetime parole supervision. After consulting with his attorney Norman Smith on more than one occasion, Santos decided to accept the deal.

On March 14, 2008, Santos appeared in Superior Court to enter his guilty plea. Prior to the hearing, Santos, who speaks only Spanish, met with Smith and a court interpreter to complete the plea form. In response to Question 17, which read: "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?," Santos circled "Yes." Santos also indicated on the form that he was satisfied with the advice he had received from Smith. However, when the hearing began, Santos informed the court that he no longer wished to enter the plea and that he wanted to speak to a Spanish-speaking attorney named Carlos Ferreira. The court granted Santos leave to seek alternate counsel and rescheduled the plea hearing.

Ten days later, Santos and Smith appeared with an interpreter for the rescheduled plea hearing. Smith stated that Santos had consulted with Ferreira on two occasions. The court verified that Santos understood the terms of the plea and that he was satisfied with Smith's representation. Smith then engaged Santos in a short colloquy to establish a factual basis, and the court accepted his guilty plea to third-degree endangering the welfare of a child. On July 11, 2008, Santos was sentenced to the agreed-upon terms of time served and lifetime parole supervision. Less than three weeks later, the United States Department of Homeland Security removed Santos to Mexico based on his criminal conviction. Santos illegally reentered the United States. He was discovered and again removed to Mexico.

On August 28, 2009, Santos filed a PCR petition alleging that he had not read, and Smith had not explained, the plea form before he signed it, and that his plea lacked an adequate factual basis. Several months later, the Untied States Supreme Court issued Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), in which it held that defense counsel has an affirmative duty to inform a criminal defendant of the immigration consequences of a guilty plea. On July 31, 2010, Santos filed an amended petition, adding the allegation that Smith never informed him that deportation was a possible consequence of his plea and contending that he would not have entered the plea had he been properly advised.

On November 3, 2010, the court determined that Santos's allegations were sufficient to establish a prima facie claim of ineffective assistance of counsel and that Santos was entitled to an evidentiary hearing, which the court scheduled. Before the hearing, Santos filed a motion seeking leave to testify telephonically from Mexico. The state opposed the motion, pointing out that telephonic testimony would deny the court the opportunity to evaluate defendant's demeanor and assess his credibility. The court granted Santos's motion and turned to examine the mechanics of how Santos's testimony would be taken.

On February 14, 2011, the State filed a motion with the PCR court to stay the evidentiary hearing, which the court denied. The Appellate Division denied the State's application for permission to file an emergent motion for a stay and for leave to appeal the PCR court's order. The State appealed to the Supreme Court and the court stayed the evidentiary hearing and directed the Appellate Division to hear the State's motion for leave to appeal. The Appellate Division then denied the State's motion for review of the order permitting telephonic testimony, holding that it would be imprudent to conduct interlocutory review without first giving the PCR court the chance to review Smith's affidavit and to explain more fully how Santos's testimony would be taken.

On June 7, 2011, the Supreme Court granted defendant's motion for leave to appeal. 207 N.J. 226 (2011).

HELD: The grant of an evidentiary hearing in which defendant was to be permitted to provide telephonic testimony must be reversed and the matter remanded for full reconsideration by the post-conviction relief (PCR) court as to whether defendant can meet the standard for entitlement to an evidentiary hearing under State v. Gaitan, 209 N.J. 339 (2012).

1. For centuries, courts have observed the traditional requirement that witnesses deliver testimony in person and in open court, but the New Jersey Court Rules do not expressly require it, or directly prohibit remote testimony by telephone. The preference for in-court live testimony can be inferred, however, from the existence of rules that specifically permit remote testimony in distinct and carefully defined situations. Several court rules, for example, allow parties to introduce transcribed or videotaped depositions in lieu of in-person testimony or expressly permit witnesses to testify remotely in particular kinds of proceedings. However, the New Jersey Court Rules do not answer the question in this matter: Whether a defendant involved in a PCR hearing should be allowed to testify by telephone. (pp. 12-15)

2. The only published decision in which a court of this state has addressed the subject of whether, and when, a court should permit telephonic testimony is Aqua Marine Products, Inc., v. Pathe Computer Control Systems Corp., 229 N.J. Super. 264 (App. Div. 1988). After summarizing the various circumstances under which courts may permit a witness, or attorney, to interact with the court via telephone, the Appellate Division observed that "these, of course, are special situations in which there is either exigency or consent and in which the witness' identity and credentials are known quantities." Id. at 275. This passage is the source of a test comprised of two parts. First, the court must determine whether the opposing party has consented to the testimony or whether there is a "special circumstance," also referred to an "exigency," "compelling the taking of telephone testimony." Ibid. Second, the court must be satisfied that "the witness' identity and credentials are known quantities" and that there is some "circumstantial voucher of the integrity of the testimony." Ibid. (pp. 15-17)

3. The PCR court in this matter failed to address the second part to the Aqua Marine test. There should not be a grant of telephonic testimony, or even a superior form of video-communication testimony, until and unless there is a satisfactory demonstration that the means to be used will ensure the essential integrity of the testimony for factfinding purposes. However, before any tribunal reaches that essential second part of the Aqua Marine test, a more fundamental question -- whether Santos is entitled to an evidentiary hearing -- must be re-analyzed. Only if the answer to that is in the affirmative would this matter present a legitimate basis for addressing whether, and how, valid testimony, if required, could be properly obtained from Santos from Mexico. (pp. 17-19)

4. In State v. Gaitan the Court held that Padilla does not apply retroactively, and that PCR petitioners who entered guilty pleas prior to Padilla cannot establish an ineffective assistance of counsel claim simply by alleging that counsel failed to offer advice regarding the risk of removal. Petitions challenging the entry of guilty pleas prior to Padilla on ineffective assistance of counsel grounds must be assessed under the law as it existed under State v. Nunez-Valdez, 200 N.J. 129 (2009), which instead focuses on whether counsel provided affirmative misadvice regarding the immigration consequences of a guilty plea. In other words, Santos can only succeed if he demonstrates that counsel provided false information about the immigration consequences of his guilty plea. The Court concludes that the initial grant of an evidentiary hearing in which defendant was to be permitted to provide telephonic testimony must be reversed and this matter remanded for full reconsideration by the PCR court as to whether defendant can meet the standard for entitlement to an evidentiary hearing under Gaitan. (pp. 19-24)

The judgment of the Law Division is REVERSED and the matter is REMANDED for full reconsideration as set forth in detail in this opinion.

JUSTICE ALBIN filed a separate, dissenting opinion, noting that the United States Supreme Court will soon review Gaitan in Chaidez v. United States, 655 F. 3d 684, 694 (7th Cir. 2011), cert. granted, No. 11-820 (U.S. Apr. 30, 2012), and that he would stay the PCR proceedings in this case until the Supreme Court decides whether Gaitan is still good law.

CHIEF JUSTICE RABNER and JUSTICES HOENS, PATTERSON, and JUDGE WEFING (temporarily assigned) join in JUSTICE LaVECCHIA's opinion. JUSTICE ALBIN filed a separate, dissenting opinion.

067989

Argued January 18, 2012

JUSTICE LaVECCHIA delivered the opinion of the Court.

This is a post-conviction relief (PCR) matter. Defendant Juan Pablo Santos, a Mexican citizen, had been removed from the United States to Mexico in 2008 within weeks of sentencing following his plea to third-degree endangering the welfare of a child. Santos had been found in bed with a fourteen-year-old girl, with whom he had been living and with whom he confessed to having an ongoing sexual relationship. At some point within the year following his removal, he illegally reentered the United States, was discovered, and was returned to Mexico after the United States Department of Homeland Security reinstated its removal order. He thereafter filed a PCR petition in which he claimed ineffective assistance of counsel on the asserted basis that he was not informed that removal was a possible consequence of his guilty plea. The PCR court granted Santos an evidentiary hearing on his petition.

We initially granted leave to appeal to consider troublesome practical aspects to the way in which that evidentiary PCR hearing was to be conducted. Because Santos now resides in Mexico and is legally barred from reentering the United States, he filed a motion seeking permission to testify via telephone. Over the State's strenuous objection, the court granted the motion. The matter was stayed by this Court and, after the Appellate Division denied the State's interlocutory appeal, we granted leave to appeal. State v. Santos, 207 N.J. 226 (2011). No evidentiary proceedings have occurred yet.

Telephone testimony has received scant attention in our case law. To the extent it has been addressed, it has been viewed with some skepticism and has been approved for use in only limited circumstances, chiefly due to the obstacles it creates for the factfinder in verifying the identity and assessing the demeanor of witnesses and rendering credibility determinations. While the proper use of telephone testimony, or the more modern forms of video communication, in PCR proceedings deserves careful attention, recent developments in the law suggest that this case is not an appropriate vehicle for considering alternative means of securing live testimony from a distant essential witness. Issuance of the decision in State v. Gaitan, 209 N.J. 339 (2012), calls into serious question the validity of the grant of an evidentiary hearing in this matter. Accordingly, we determine that the grant of an evidentiary hearing must be reversed and the matter remanded to the trial court for complete reevaluation as to whether Santos can meet the standard for entitlement to an evidentiary hearing under Gaitan, particularly in light of the later-produced affidavit from Santos's defense counsel and related evidence which the PCR court did not have.

I.

In June 2005, police discovered defendant Santos naked and in bed with a fourteen-year-old girl, A.A., in Santos's home in Lakewood Township. He was arrested and, after receiving Miranda*fn1 warnings, admitted that he lived with the girl and that they had an ongoing sexual relationship. As a result, he was indicted by an Ocean County grand jury on one count of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4), and one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).

Following negotiations with Santos's counsel, Norman Smith, the State proposed a plea agreement under which Santos would plead guilty to third-degree endangering the welfare of a child in exchange for the State's agreement to drop the sexual assault charge and recommend to the sentencing court that his term of imprisonment be limited to time served. Santos would also be required to register as a sex offender and submit to the lifetime parole supervision required by Megan's Law, N.J.S.A. 2C:14-2(c)(4). After consulting with Smith on more than one occasion, Santos decided to accept the deal.

On March 14, 2008, Santos appeared in Superior Court to enter his guilty plea. Prior to the hearing, Santos, who speaks only Spanish, met with Smith and a court interpreter to complete the plea form and other required paperwork. In response to Question 17 on the plea form, which read: "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?," Santos circled "Yes." Santos also indicated on the form that he was satisfied with the advice he had received from Smith and had no questions concerning the plea. However, when the hearing began, Santos informed the court that he no longer wished to enter the plea and that he wanted to speak to a Spanish-speaking attorney named Carlos Ferreira. The court granted Santos leave to seek alternate counsel and rescheduled the plea hearing.

Ten days later, Santos and counsel appeared for the rescheduled plea hearing. An interpreter for Santos was also present. Noting that Santos was still represented by Smith, the court asked Smith to explain what had transpired since the earlier proceeding. Smith stated that Santos had consulted with Ferreira on two occasions and that Ferreira had advised Santos that accepting the plea deal was "the only rational course." Smith further explained that Santos had hesitated at the prior proceeding because he had not fully understood the consequences of the plea, but that all of his questions had since been answered. Following Smith's explanation, the court, through the interpreter, asked Santos to verify that he understood the terms of the plea:

Q: Okay. I'll show you what's been handed me, a plea form, and do you see your signature on this form?

A: Yes.

Q: Now, this is a three-page plea form. Was this form read ...


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