August 17, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENNEDY HALL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 00-04-0349.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 24, 2012
Before Judges Lihotz and Baxter.
Defendant Kennedy Hall appeals from the denial of his petition for post-conviction relief (PCR). On appeal, defendant argues:
THE LAW DIVISION JUDGE IMPROPERLY DENIED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS OUT-OF-TIME, DECLARING INCORRECTLY THAT HE HAD NO AUTHORITY UNDER THE COURT RULES TO RELAX THE APPLICABLE TIME BAR, WHEN IN FACT DEFENDANT HAD MET THE EXCUSABLE-NEGLECT STANDARD OF THE RULE, AS INTERPRETED BY THIS COURT IN STATE V. TELFORD; ONCE STATE V. GAITAN IS DECIDED IN THE STATE SUPREME COURT, THE MATTER SHOULD BE REMANDED TO ADDRESS THE SUBSTANCE OF THE PCR CLAIMS, LIKELY WITH AN EVIDENTIARY HEARING, AS ORDERED IN GAITAN.
We agree and reverse and remand for an evidentiary hearing.
On September 25, 2000, pursuant to a plea agreement, defendant, a Jamaican national, pled guilty to two counts of first-degree armed robbery, N.J.S.A. 2C:15-1, and was sentenced to concurrent terms of ten years in state prison subject to an 85-percent period of parole ineligibility, as mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2, and a five-year period of parole supervision upon release. The remaining charges in the indictment were dismissed in accordance with the plea agreement.
On March 19, 2009, defendant was released from state custody. However, he was immediately transferred to federal Immigration Customs Enforcement (ICE), pursuant to an immigration detainer, pending deportation proceedings.
On June 8, 2010, defendant filed a PCR petition, alleging counsel was ineffective because he failed to warn defendant about the deportation consequences of his guilty plea. In support of his PCR petition, defendant attached the plea agreement form, which reflected the answer "N/A" in response to Question 17, asking: "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?" Further, the verified PCR petition stated: "Each answer on the [p]lea [f]orm was circled by counsel. Counsel read the [p]lea [f]orm questions to the [p]petitioner. The [p]petitioner did not read the questions himself." Finally, the record from defendant's plea hearing includes no discussion of question seventeen or deportation consequences of a conviction.
The PCR judge denied the PCR request without a hearing, concluding defendant's petition was time-barred. See R. 3:22-12(a)(1). The PCR judge did not consider the merits of defendant's request.
Rule 3:22-12(a)(1) provides that, subject to certain exceptions not relevant to defendant's application, no petition for PCR shall be filed . . . more than 5 years after the date of entry . . . of the judgment of conviction that is being challenged unless it alleges facts showing that the delay . . . 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 . . . would result in a fundamental injustice.
In assessing whether excusable neglect justifies the delay, courts must consider "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." State v. Afanador, 151 N.J. 41, 52 (1997) (citations omitted). "Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." Ibid.
On appeal, defendant argues his PCR request, filed more than five years after his conviction, was not time-barred because the immigration consequences of his plea were not revealed until his 2009 release from prison, followed by the effectuation of the immigration detainer. He then consulted with counsel who advised he was subject to deportation based upon his prior guilty plea. Defendant's failure to file an earlier PCR petition was excusable. See R. 3:22-12(a).
The record demonstrates that when the five-year filing deadline elapsed in September 25, 2005, defendant had no reason to suspect his attorney had potentially rendered ineffective assistance by failing to advise him of the deportation consequences of his guilty plea. Not until defendant was taken into custody by ICE in March 2009, upon release from state custody, did he realize the consequences of his guilty plea and the possible deficiencies of his attorney's performance. We conclude these circumstances constitute exceptional circumstances warranting a delay in the filing of the PCR petition. See R. 3:22-12(a)(1). The PCR judge's contrary determination was error.
In order for a defendant to obtain PCR based upon ineffective assistance of counsel, he or she is obliged to show both the particular manner in which counsel's performance was deficient and that the deficiency prejudiced his or her right to a fair trial or the outcome of the plea process. See Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 209-10 (1985); Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987); State v. Chung, 210 N.J. Super. 427, 434-35 (App. Div. 1986).
In cases brought by a defendant who has entered a guilty plea, the first prong of the Strickland; Fritz test is met where a defendant shows counsel's representation fell short of the prevailing standards expected of criminal defense attorneys. Padilla v. Kentucky, 559 U.S. ___, ___, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). The second prong requires a defendant to establish a reasonable probability that he would not have pled guilty, but for counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012).
When defendant pled guilty in 2000, New Jersey's case law instructed "a defendant's guilty plea is not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Id. at 361. Because immigration ramifications were considered collateral consequences not penal consequences of a plea, there was no affirmative requirement to warn a defendant who was pleading guilty of a negative effect on his or her immigration status. However, as noted by Chief Justice Wilentz's dissent in State v. Heitzman, 107 N.J. 603, 606 (1987), "the possibility of deportation, even if viewed as a collateral consequence, obviously can have a severe impact on a person's life."
The Court implemented Question 17 as a safeguard "designed to encourage discussion between counsel and client" on the issue of deportation. State v. Garcia, 320 N.J. Super. 332, 337 (1999). The question is designed to ensure notice of deportation as a consequence of a guilty plea. Gaitan, supra, 209 N.J. at 362. In Gaitan, supra, the plea form executed by the defendant circled "yes" to Question 17, addressing the possibility of deportation. Id. at 347. The defendant's PCR argument emphasized the ambiguity of the word "may" as stated in the question. Id. at 379. The PCR judge rejected the argument, determining the answer to question 17 was affirmative and defendant had not chosen to seek additional information from his counsel, who nevertheless was not required, at that time, to offer any advice on the issue. Id. at 375.
In State v. Nunez-Valdez, 200 N.J. 129, 139 (2009), the New Jersey Supreme Court reviewed a related issue, considering the constitutional effect "when counsel provides false or affirmatively misleading advice about the deportation consequences of a guilty plea, and the defendant demonstrates he would not have pled guilty if he had been provided with accurate information." Gaitan, supra, 269 N.J. at 351 (citing NunezValdez, supra, 200 N.J. at 131). The Court concluded these circumstances establish an ineffective assistance of counsel claim. Therefore, false or affirmatively misleading information regarding deportation was considered cause for PCR.*fn1 Ibid.
Recently, the United States Supreme Court has ended all debate on the deportation question. In Padilla, supra, the Supreme Court held attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea. 559 U.S. at ___, 130 S. Ct. at 1486-87, 176 L. Ed. 2d at 299. The high court made it clear the failure to advise a client regarding the deportation consequences of a conviction represents a deficiency of constitutional magnitude. Ibid. Because Padilla, supra, presented a new rule of law, its holding only applies prospectively. Gaitan, supra, 209 N.J. at 371-72.
We examine defendant's arguments In light of these authorities. Defendant entered his guilty plea in 2000 before Padilla was decided. Consequently, he may not avail himself of its holding to request PCR, but rather he remains bound by "'precedent existing at the time the defendant's conviction became final.'" Id. at 365 (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070, 103 L. Ed. 2d 334, 349 (1989)). The limited record before us includes defendant's assertions he was not informed of the possibility of deportation as a result of his guilty plea, because the issue was not discussed. He also states he was not afforded an opportunity to read the plea form questions, because his attorney read them to him. However, defendant does not specifically state whether question 17 was read to him by counsel. Nevertheless, the response was recorded as "N/A" or not applicable. On its face, that answer is inaccurate. Adding to defendant's statement that deportation was not discussed, it is possible counsel skipped the question, incorrectly believing it did not apply to defendant's circumstances and may have advised defendant that deportation was not a consequence applicable to his conviction were he to enter a guilty plea. In either of these two events, defendant's claims demonstrate a reasonable likelihood he would succeed in his showing that counsel was negligent in providing legal advice. Nunez-Valdez, supra, 200 N.J. at 142-43.
In order to address defendant's PCR request, an evidentiary hearing must be held to "aid the court's analysis of whether the defendant is entitled to post-conviction relief[.]" State v. Marshall, 148 N.J. 89, 158, (holding an evidentiary hearing should be granted on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel to support his petition), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). See also State v. Preciose, 129 N.J. 451, 462 (1992).
On remand, a hearing will allow the court to analyze whether defendant was affirmatively misinformed about his immigration status and whether he suffered sufficient prejudice to warrant the withdrawal of his plea. See Nunez-Valdez, supra, 200 N.J. at 142 (interpreting Strickland's prejudice prong as "'but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial'" (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985) (alteration in original))).
We conclude defendant had established a prima facie case for relief, and the PCR judge mistakenly exercised his discretion in failing to conduct an evidentiary hearing before dismissing defendant's PCR petition as time-barred. Accordingly, we reverse the judgment of the PCR court and remand for an evidentiary hearing on the merits of defendant's ineffective assistance of counsel claim.
Reversed and remanded.