May 25, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CESAR A. LIPA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-07-0605.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2012 -
Before Judges Fisher and Carchman.
In this appeal, defendant seeks, among other things, a reversal of an order denying his motion to withdraw his guilty plea based on the contention that the judge erroneously applied the principles set forth in State v. Slater, 198 N.J. 145 (2009). Defendant, a Peruvian citizen, also now argues for the first time that he should have been permitted to withdraw his guilty plea because he was not advised that his plea would trigger mandatory deportation. We find no merit in the first argument and do not reach the second, leaving it instead for defendant to pursue by way of a future petition for post-conviction relief.
In 2008, defendant was indicted and charged with: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(2); three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c);*fn1 and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On January 9, 2009, defendant entered a guilty plea to first-degree aggravated sexual assault in exchange for: the treatment of the conviction, at sentencing, as a second-degree offense; the recommendation of an eight-year term subject to an 85% period of parole ineligibility; and the dismissal of the remaining counts. When, during the plea hearing, defendant stated he was not a citizen, the judge advised him that "this plea will, more than likely, affect your immigration status" and "that more than likely you will be deported after you serve your prison term." In responding to the many questions posed during the judge's thorough inquiries, defendant revealed his familiarity with the charges against him, agreed that his attorney had fully discussed the case with him, and expressed his free and voluntary desire to plead guilty. The judge outlined for defendant all the rights he was waiving as a result of his guilty plea, and defendant responded that he understood and was willing to waive those rights. And, before eliciting a factual basis for the guilty plea, the judge lastly asked:
Q. And the only reason why you give up all those rights is because you're in fact guilty. Is that true?
A. Yes, Your Honor.
Defendant then provided a factual basis for his guilty plea, acknowledging that he committed a sexual assault on the female victim, who was at least thirteen and less than sixteen years old.
Prior to sentencing, defendant retained new counsel and moved to withdraw his guilty plea. Defendant's motion was supported by his certification, which chiefly asserted that his prior attorney failed to obtain records suggesting the victim's lack of credibility and the questionable nature of the victim's specific allegations of a sexual assault; defendant also asserted he was innocent. The judge found defendant's allegations to be insufficient and denied the motion. Defendant was later sentenced, in accordance with the negotiated plea agreement, as a second-degree offender to an eight-year prison term subject to an 85% period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appeals, presenting the following arguments for our consideration:
I. BECAUSE THE COURT AND COUNSEL MISINFORMED DEFENDANT ABOUT THE DEPORTATION CONSEQUENCES OF THE GUILTY PLEA, HE DID NOT ENTER THE PLEA KNOWINGLY AND VOLUNTARILY, AND IT SHOULD BE VACATED (Not Raised Below).
A. The Plea Must Be Vacated Because Counsel Gave Defendant Incorrect Advice About Its Deportation Consequences.
B. The Plea Must Be Vacated Because the Trial Court Gave Defendant Incorrect Advice About Its Deportation Consequences.
II. THE COURT SHOULD HAVE GRANTED DEFENDANT'S PLEA-WITHDRAWAL MOTION PURSUANT TO STATE V. SLATER.
III. THE SENTENCE SHOULD BE REMANDED BECAUSE THIS WAS DEFENDANT'S FIRST OFFENSE AND THE COURT ERRED IN FAILING TO WEIGH MITIGATING FACTOR[S] N.J.S.A. 2C:44-1b(7) AND (11).
In Point I, defendant claims he was denied the effective assistance of counsel guaranteed by the Sixth Amendment because his attorney did not advise that his guilty plea would result in mandatory deportation. Defendant's motion to withdraw his plea, however, did not incorporate these allegations, which are asserted for the first time on appeal and asserted solely by reference to the plea form and the colloquy between the judge and defendant at the plea hearing. Despite the State's forceful contentions that defendant's argument should be rejected because it finds support only in Padilla v. Kentucky, 559 U.S. __, __, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 296 (2010), which was announced after defendant's guilty plea and, thus, made inapplicable by State v. Gaitan, 209 N.J. 339, 372 (2012), we choose not to reach this contention. See State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
That is, while holding that a claim that counsel gave no advice or inadequate advice regarding the deportation consequences of a guilty plea is of no avail unless the guilty plea was entered after March 31, 2010 -- the day Padilla was announced, Gaitan, supra, 209 N.J. at 372 -- our Supreme Court also held that a claim the attorney gave incorrect advice about the deportation consequences of a guilty plea was not dependent on Padilla and, in fact, had been well-established for years. See Gaitan, supra, 209 N.J. at 352 (noting that, prior to State v. Nunez-Valdez, 200 N.J. 129 (2009), "it was hardly revolutionary under New Jersey law that an attorney could not actually give wrong or inaccurate information about immigration consequences of a guilty plea without risking an assertion of having provided ineffective assistance"). The record does not contain any sworn statements from either defendant or his trial attorney as to the advice, if any, that was given regarding the deportation consequences for defendant when he entered his guilty plea in 2009. Rather than speculate on whether whatever transpired between defendant and his trial attorney falls within the established principles described in Nunez-Valdez or the rule announced in Padilla, we will leave consideration of this question until the matter is fully developed through a future application for post-conviction relief.
We find insufficient merit in defendant's Point II to warrant discussion in a written opinion, R. 2:11-3(e)(2), and affirm on that point substantially for the reasons set forth by Judge James C. Heimlich in his opinion denying the plea withdrawal motion. We add only the following brief comments.
A guilty plea "may only be set aside in the exercise of the court's discretion"; prior to sentencing, "courts are to exercise their discretion liberally to allow plea withdrawals." Slater, supra, 198 N.J. at 156. This liberality, however, "'does not mean an abdication of all discretion.'" Id. at 157 (quoting State v. Smullen, 118 N.J. 408, 416 (1990)). The burden "rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits." Id. at 156 (quoting Smullen, supra, 118 N.J. at 416). "A bare assertion of innocence is insufficient to justify withdrawal of a plea." Id. at 158.
Guided by these general principles, a trial court must examine the circumstances and allegations as they relate to the following four factors when ruling on a motion for a plea withdrawal:
(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. [Id. at 157-58.]
In seeking the withdrawal of his guilty plea, defendant asserted: his prior attorney failed to obtain records maintained by the Division of Youth and Family Services (DYFS) that questioned the victim's credibility; that it was "almost impossible" for defendant to have climbed into the victim's second floor bedroom window to commit the sexual assault because defendant had undergone knee surgery and was still recovering at the time; and that he "did not do anything that [the victim] alleges" and is "innocent of those charges." In rejecting the sufficiency of these contentions, the trial judge found that defendant's claim of innocence was not colorable because the specific assertions were insubstantial. Indeed, the DYFS records in question memorialized an investigation that occurred more than two years prior to the offense to which defendant pleaded guilty; that DYFS observed the victim had not alleged any prior sexual abuse by defendant does not call into question the veracity of defendant's version of events occurring years later. In other words, the fact that DYFS noted that in 2002 the victim had not alleged at that time any prior sexual abuse does not remotely suggest that sexual abuse did not occur in 2005 or any later date, as asserted in the indictment and admitted by defendant at the plea hearing. And, in his consideration of defendant's attack on the likelihood that he could have climbed through a second floor window to gain access to the victim, the judge recognized that defendant claimed only that, because of his knee surgery, this claim was "almost impossible," not impossible. Indeed, the photographs and defendant's sworn statements do not preclude the likelihood that defendant was able to engage in the conduct he admitted to at the plea hearing.
We must also be mindful, in considering the judge's exercise of discretion, that the judge presided over the plea hearing and was entitled to consider, in deciding the plea withdrawal motion, "the defendant's demeanor and candor at . . . the plea proceeding." Id. at 160. Implicit in the judge's oral decision denying the motion is his finding that the few specifics offered in support of the motion were inconsequential in comparison to the weight of the testimony given by defendant at the plea hearing.
The judge also properly recognized that the third factor weighed against withdrawal because the plea was the product of a plea bargain. The judge did not find that the fourth factor favored withdrawal, and we may assume that the State would incur no prejudice other than that normally associated with the withdrawal of a guilty plea.
We find no abuse of the judge's discretion or any error in his conclusion that defendant only baldly asserted his innocence without sufficient specific allegations that would provide substance to his current claim of innocence. In the final analysis, the judge's decision appreciated the fact that a defendant "must show more than a change of heart," and a "'whimsical change of mind' . . . is not an adequate basis to set aside a plea." Id. at 157 (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)).
We reject Point II for these reasons and substantially for the reasons set forth by the trial judge in his oral opinion.
In his Point III, defendant contends that the trial judge failed to find and weigh the mitigating factors described in N.J.S.A. 2C:44-1(b)(7) (the lack of a prior criminal history) and N.J.S.A. 2C:44-1(b)(11) (imprisonment would impose an "excessive hardship" on the defendant and his or her dependents). We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(2).