On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-06-1079.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Carchman.
Defendant Jose Nunez-Delprado appeals from the denial of his post-conviction relief (PCR) petition. In his petition, defendant asserted that trial counsel's failure to advise him regarding the deportation consequences of his guilty plea constituted ineffective assistance. The judge held that because defendant stated under oath during the guilty plea colloquy that he was a United States citizen, trial counsel did not render ineffective assistance by failing to advise defendant of the deportation consequences of his plea. Although defendant's presentence report subsequently revealed defendant might not be a United States citizen, we agree with the judge's conclusion that counsel had no duty at the time defendant pled guilty to render advice on that issue. Accordingly, we affirm the denial of defendant's PCR petition.
Defendant was charged in an indictment with fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a)(3). Pursuant to a negotiated plea agreement, defendant entered a guilty plea to that charge on October 26, 2006. During the plea hearing, the judge specifically asked defendant, "Are you the [sic] citizen of this country?" Defendant answered "Yes, sir." Defendant also testified that he understood all of the questions on the plea form and that the answers he provided were truthful. The plea form's seventeenth question 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," thereby acknowledging that he understood he faced possible deportation if he was not a citizen.
The presentence report (PSR) that was prepared in anticipation of sentencing revealed defendant was not a United States citizen. The PSR stated defendant was born in Peru, emigrated to the United States in 1992, and was "legally residing here as a perman[e]nt resident." The PSR also noted that any conviction for an "aggravated felon[y] could make him subject to immigration violations [that could lead] to removal proceedings [pursuant to] the Immigration Act."
The record sheds no light on whether trial counsel noticed this information on the PSR. It is clear, however, that counsel made no mention of defendant's immigration status when defendant was sentenced on December 18, 2006, pursuant to the plea agreement, to a two-year term of non-custodial probation. Defendant did not file a direct appeal.
Although the record does not specify how defendant came to the attention of the immigration authorities, he was ultimately arrested by immigration officials who sought his deportation based on his 2006 conviction.
Defendant filed his PCR petition on November 23, 2009, alleging that he was never advised that he "would be deported or removed from the United States as a mandatory consequence of [his] guilty plea." Defendant further claimed that had he been advised of deportation consequences, he would not have entered a guilty plea.
In particular, in the certification that accompanied his PCR petition, defendant stated:
On December 18, 2006, I entered a plea with the expectation that I would receive a sentence of two years probation.
At no time was I ever properly advised that I would be deported or removed from the United States as a mandatory ...