June 5, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARCELO A. BATISTA-IZAIAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Accusation No. 00-05-916-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 8, 2012 -
Before Judges Fisher, Baxter and Nugent.
In this appeal, defendant argues that his post-conviction relief (PCR) petition -- based on trial counsel's rendering of incorrect advice regarding the deportation consequences of defendant's guilty plea -- was erroneously denied. Even though the PCR judge found from competing testimony that defendant told his attorney, at the time he entered his guilty plea, that he was a citizen and, thus, the attorney never told defendant that he would not be deported, the PCR judge never mentioned in her findings the highly relevant circumstances at the sentencing stage -- circumstances that could have called into question the accuracy of the attorney's version about the earlier events. As a result, "the interests of justice demand intervention," State v. Davila, 203 N.J. 97, 110 (2010) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)), and require a remand for further findings from the PCR judge.
Defendant was charged in an accusation with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a), and, pursuant to a negotiated agreement, entered a guilty plea to this charge on May 10, 2000. During the plea hearing, defendant was not asked about his citizenship, but defendant did acknowledge that his attorney reviewed the plea form with him. Defendant also testified that he understood all the questions on the plea form and that all his answers were voluntarily given. 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 guilty plea?" Defendant answered "N/A."
The presentence report (PSR), which was prepared at a later date, revealed defendant's citizenship was "other," and that he was a Brazilian citizen and an "undocumented alien." Defendant's trial attorney never brought this circumstance to the judge's attention when given the opportunity at sentencing to argue whether any changes needed to be made to the PSR.*fn1
Defendant was sentenced on June 23, 2000, pursuant to the plea agreement, to an eighteen-month probationary term.
In 2007, defendant pursued citizenship, revealing his criminal conviction in his application for naturalization. Undoubtedly as a result, defendant was arrested in May 2009 by immigration officials seeking his deportation based on his 2000 conviction.
Defendant filed his PCR petition on August 17, 2009, arguing that his trial attorney erroneously told him that his guilty plea would not have deportation ramifications. The PCR petition was denied but we granted summary disposition and remanded for a hearing. State v. Batista-Izaias, No. A-2386-09 (App. Div. June 7, 2010).
The PCR judge conducted an evidentiary hearing on August 3 and 11, 2010, during which she heard testimony from defendant, as well as his brother, his sister and his trial attorney. Defendant testified that he told his attorney prior to agreeing to the plea offer that he had a green card and was not a United States citizen, and that the attorney said to him that as long as he held a green card, defendant "would have no problem with immigration."
Defendant's trial attorney, on the other hand, testified that defendant told him he was a citizen. Despite the passage of time, the attorney testified that he remembered defendant. The attorney was not able to produce his file, which he stated was destroyed in a flood.
For reasons expressed in an oral opinion on September 8, 2010, the PCR judge made factual findings, concluding not only that the PCR petition was time-barred but also that it had no merit because the judge found more credible the trial attorney's narrative of what transpired between he and defendant prior to the entry of the guilty plea.
Defendant appealed, presenting the following arguments for our consideration:
I. THE RECORD, FAIRLY ANALYZED, DEMONSTRATES THAT PETITIONER'S CONSTITUTIONAL RIGHT TO ACCURATE INFORMATION REGARDING THE IMMIGRATION CONSEQUENCES OF A GUILTY PLEA WAS VIOLATED; HIS PLEA DOES NOT QUALIFY AS KNOWING, INTELLIGENT AND VOLUNTARY.
A. A Defendant Has a Right to Full and Accurate Information As to a Deportation That Will Flow with Virtual Certainty From a Proposed Plea; When Counsel Fails to Provide such Accurate Information, and In Fact Provides Erroneous Advice, Those Errors Constitute Deficient Professional Performance.
B. The Record Presents ample proof, Whether or not [Defendant's] Account of His Conversation with his Attorney is Credited, to Support a Vacation of his Plea Based on his Former Counsel's Ineffective Assistance at the Time of His May 2000 Guilty Plea.
II.  COUNSEL ADMITTED INEFFECTIVE ASSISTANCE VIA HIS CLAIM THAT HE "MISSED" THE EXPLICIT STATEMENTS IN THE PRE-SENTENCE REPORT THAT HIS CLIENT, WHO COUNSEL CLAIMS REPRESENTED HIMSELF TO BE AN AMERICAN CITIZEN, WAS IN FACT A FOREIGNER, A BRAZILIAN, AND NOT A CITIZEN [OF] THE UNITED STATES.
III. THE MOTION COURT ERRED IN REFUSING TO WAIVE THE FIVE-YEAR TIME BAR; THE ERROR RESIDES FIRST IN FAILING TO CORRECTLY VALUE THE IMPORTANT CONSTITUTIONAL AND LEGAL RIGHTS AT STAKE AND THE CLEAR INJUSTICE OF LETTING THE MISINFORMED PLEA STAND; AND CO[N]COMITANTLY FINDING "NEGLECT" WHERE THERE WAS NO EVIDENCE OF SUCH NEGLECT ON PETITIONER'S PART.
IV. THE INTERESTS OF JUSTICE WARRANT AN EXTENSION OR RELAXATION OF THE FIVE-YEAR TIME LIMITATION.
We reverse and remand for additional findings.
We, first, reject the PCR judge's conclusion that the petition was time-barred. Rule 3:22-12 declares that no PCR petition may be filed more than five years after entry of the judgment of conviction "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." Here, defendant's delay was inherently excusable in light of the nature of the claim itself. It was not until 2009 -- four years beyond the five-year time-bar -- that the consequence that prompted the PCR petition became known to defendant. Indeed, accepting as true the testimony of defendant's attorney, who the judge found credible, no one ever told defendant that his guilty plea carried deportation consequences; defendant had no apparent reason to believe otherwise until he was arrested by federal officers in 2009. After that, defendant promptly filed his PCR petition. The delay was excusable and defendant acted expeditiously once fully appreciative of the need for post-conviction relief. Indeed, the increased vigor with which federal officials now deport convicted noncitizens further demonstrates the unfairness of imposing on defendant an appreciation of the deportation consequences of a guilty plea at a time when the likelihood of deportation was far less certain. We, thus, reject the application of the time-bar in these circumstances and turn to the merits of the PCR petition.
In turning to the merits, we note that much has been written and remains uncertain about whether it was understood in 2000 that the Sixth Amendment guaranteed a noncitizen criminal defendant affirmative and accurate advice from his attorney regarding the deportation consequences of a guilty plea. In Padilla v. Kentucky, 559 U.S. __, __, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 296 (2010), the Supreme Court held that the Sixth Amendment imposed an obligation on an attorney to advise a noncitizen client of the fact that he faced mandatory deportation by pleading guilty to a drug trafficking offense.
Our Supreme Court has held, in the face of a conflict among the
federal circuit courts of appeals, that Padilla announced a new rule
that had no effect on guilty pleas entered prior to March 31, 2010,
the day Padilla was announced. State v. Gaitan, 209 N.J. 339, 372
(2012). The Supreme Court of the United
States has since granted certiorari to review Chaidez v. United
States, 655 F.3d 684 (7th Cir. 2011), in which a divided court held
that Padilla is not to be given retroactive effect,*fn2
further unsettling the grounds upon which many claims of
ineffectiveness in this setting rest.
Defendant, however, has not made an argument that falls within what has been held to be the new rule contained in Padilla. Defendant contends that his attorney gave him incorrect advice -- that defendant's possession of a green card meant that he "would have no problem with immigration" -- a valid ground for a claim of ineffective assistance of counsel prior to Padilla. See Gaitan, supra, 209 N.J. at 361-62; State v. Nunez-Valdez, 200 N.J. 129, 141-42 (2009); State v. Barros, __ N.J. Super. __, __ (App. Div. 2012) (slip op. at 4). As the Court held in Gaitan, "prior to Nunez-Valdez, 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." Gaitan, supra, 209 N.J. at 352 (citing State v. Chung, 210 N.J. Super. 427, 434-35 (App. Div. 1986)). Because defendant's version is that his attorney advised that his possession of a green card would insulate defendant from deportation, the PCR judge's acceptance of that version would form the framework for a finding of the ineffective assistance of counsel without the need to resort to the holding in Padilla.
In making findings from the competing testimony, the PCR judge found "particularly credible" the attorney's testimony that defendant represented he was a United States citizen prior to entering his guilty plea. The applicable standard of review requires that we defer to a trial court's findings of fact when supported by substantial and credible evidence. That deferential standard, however, does not render all non-jury findings of fact impervious from review or appellate intervention. The standard, instead, permits an appellate court to disregard a finding of fact upon its own "feeling of 'wrongness,'" Johnson, supra, 42 N.J. at 162, i.e., when satisfied that the finding "is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction," Davila, supra, 203 N.J. at 110 (quoting Johnson, supra, 42 N.J. at 162). As our Supreme Court has held, "while this "feeling of 'wrongness' is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made." Johnson, supra, 42 N.J. at 162.
The feeling of "wrongness" may arise when the factfinder "overlook[ed] or under-evalu[ed] . . . crucial evidence." Ibid. Here, the PCR judge failed to examine the attorney's credibility in light of other crucial evidence that went unmentioned in the judge's decision. That is, the PCR judge never resolved or opined on a significant challenge to the attorney's credibility, namely, questions such as:
-- is it the attorney's testimony that defendant told him he was a citizen credible in light of the many references to defendant's lack of citizenship in the PSR that set off no alarms for defendant at the time of sentencing? *fn3
-- was the attorney's inexplicable failure to act in light of the PSR's confirmation that defendant was not a citizen really because he "missed" what the PSR revealed*fn4 or was that a product of the attorney's prior knowledge that defendant was not a citizen? -- if the attorney's testimony about the PSR is not credible, is his testimony regarding the pre-plea discussions still credible?
The PCR judge's disregard of the highly crucial evidence generated by the PSR and the attorney's failure to bring the PSR's confirmation of defendant's lack of citizenship to the sentencing judge's attention, and the PCR judge's failure to resolve defendant's legitimate attack on the attorney's credibility, compels a feeling of "wrongness" that requires further explanation from the PCR judge before we may defer to the judge's findings.
To be clear, we do not hold that, after reviewing the transcripts of the trial court proceedings, that we would not find the attorney credible; we did not see the witnesses testify and, therefore, can draw no personal conclusion as to their credibility. Our holding is limited to finding that defendant presented legitimate questions about the attorney's credibility that were not addressed by the PCR judge. We, thus, remand for further findings from the PCR judge as to: the performance of the attorney prior to and at sentencing regarding what the PSR revealed; and whether, in the PCR judge's view, the attorney's version of what was discussed about citizenship prior to defendant's entry of his guilty plea remains credible or at least more credible than defendant's version.*fn5
Reversed and remanded for further findings.*fn6 We do not retain jurisdiction.