September 10, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LUIS VELAZQUEZ, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Accusation No. 266-03-2005.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 6, 2012
Before Judges Ashrafi and Hayden.
Defendant Luis Velazquez appeals from a June 6, 2011 order of the Law Division denying his petition for post-conviction relief (PCR). Defendant claims that ineffective assistance of counsel led to his guilty plea for receiving stolen property because his attorney gave him incorrect legal advice about the likelihood of deportation. We affirm the Law Division's order denying the PCR petition.
Our record shows the following relevant facts. In 1995, defendant attempted to come to the United States by a small boat from Cuba. He was turned away and held at military bases at Guantanamo Bay and in Panama for the next two years. He applied for and, in 1997, was granted lawful entry to the United States as a permanent resident.
While living in the United States, defendant worked as a truck driver. He was also arrested several times for theft-type offenses. Our record does not include the specifics of his criminal record, but it appears from transcripts of proceedings in the Law Division that defendant was admitted to the Pretrial Intervention Program, N.J.S.A. 2C:43-12e; R. 3:28, after his arrest for an offense involving distribution of counterfeit currency, and that he was convicted of a disorderly persons offense of shoplifting on at least one other occasion.
On January 5, 2005, defendant was arrested in North Bergen and charged with third-degree receiving stolen property, N.J.S.A. 2C:20-7, and disorderly persons possession of burglary tools, N.J.S.A. 2C:5-5. The arrest was the result of police investigation of suspicious activity near railroad tracks late at night. At about 10:30 p.m., defendant's tractor-trailer was parked backed up to a downed fence near the tracks. When the police arrived, defendant told them he was resting at that location. His cousin was hiding in the bed compartment of the tractor cab.*fn1
The door of the trailer was partially open, and the police found a number of new, boxed Panasonic electronic items there, including televisions, home theater systems, and DVD players. Inside the cab, the police found a case of new Panasonic portable DVD players. Defendant claimed he did not know the electronic merchandise was in his trailer. He told the police he thought his trailer was empty when he left its prior location. Defendant also denied knowledge of a Toyota parked near his truck, although the police found the keys to the Toyota in the ashtray inside the cab of his truck. The police then found small, unopened electronic items in the trunk of the Toyota.
The police found a two-foot bolt cutter in the truck with a piece of a bolt still in its cutting edges. In the trailer, the police also found a bill of lading, but the document was for a shipment of merchandise greater than that found in the trailer. Defendant could not explain where he obtained the merchandise and said he had no document showing its source or point of delivery. The police arrested defendant and his cousin.
At the police station, defendant gave a statement, attempting to explain his possession of the merchandise. He told the police that two strangers approached him and offered to sell him the electronic equipment for $5,000. He offered them the $1,500 he had on his person, and they accepted that amount for all the merchandise. He admitted he knew the merchandise was probably stolen.
Defendant retained an attorney to represent him on the charges. Within several weeks of the arrest and before grand jury consideration of the charges, defendant entered into a plea agreement with the Hudson County Prosecutor's Office and pleaded guilty on March 9, 2005, to third-degree receiving stolen property. In exchange, the State recommended a non-custodial sentence and also agreed to dismiss the charges against defendant's cousin.
At the plea hearing, defendant testified that no one had made any promise to him regarding his guilty plea other than the plea agreement as described on the record. He acknowledged he had discussed the standard guilty plea form and questionnaire with his attorney and understood the questions and answers that he had supplied to the court on that form. Among those answers was that defendant understood he might be deported based on his guilty plea and conviction.
To establish a factual basis for the charge of receiving stolen property, defendant admitted he knew the electronic merchandise was stolen because he bought it on the street at substantially less than its true value. The court accepted the guilty plea. On July 22, 2005, defendant was sentenced in accordance with the plea agreement to two years probation.
In October 2008, defendant was detained by federal authorities when returning to the United States from a trip out of the country. He was notified that he was subject to deportation, that is, removal from the United States pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I) because of his conviction for a crime involving moral turpitude.
The federal removal proceedings were dismissed several months later, but they were reinstituted in April 2010. Defendant filed his PCR petition on April 21, 2010, seeking to vacate his 2005 conviction. He claimed his defense attorney had represented him ineffectively by advising him he would not be deported if he pleaded guilty to the third-degree charge. He alleged that the advice was incorrect, and that he would not have pleaded guilty had he known he would be deported.
The Law Division held an evidentiary hearing in 2011 at which defendant, his wife, and his defense counsel at the time of the guilty plea testified. Defendant and his wife testified that the defense attorney told them in 2005 that he would not be deported because the United States did not deport Cuban refugees. The defense attorney testified that he had no recollection of defendant's plea specifically, but he described his normal procedures in advising clients charged with criminal offenses. He stated it was his practice to warn all non-citizen clients that they could be deported. He stated further that he may have told defendant that he did not believe Cuban refugees were being deported at that time back to Cuba.
The Law Division denied defendant's PCR petition by order and written opinion. The court noted that defendant had pleaded guilty several years before the United States Supreme Court's decision in Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and that of the New Jersey Supreme Court in State v. Nunez-Valdez, 200 N.J. 129 (2009), regarding immigration and deportation advice to a criminal defendant. The court concluded that those decisions did not apply retroactively to defendant's guilty plea and conviction. Alternatively, the court determined that defendant was not entitled to vacate his conviction because he did not prove he would have rejected the non-custodial plea offer and gone to trial had he been correctly informed of the likelihood of deportation.
In considering the merits of a PCR petition, we begin with a presumption that defendant received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution. See Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorney's performance was ineffective under constitutional standards. Loftin, supra, 191 N.J. at 198.
In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the United States Supreme Court established a two-part test for evaluating claims of ineffective assistance of counsel.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
The Strickland test was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), for purposes of our State constitutional right to counsel. To satisfy the second part of the test, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Where ineffective assistance of counsel is alleged following a guilty plea, the defendant proves the second part of the Strickland test by showing "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); see Nunez-Valdez, supra, 200 N.J. at 139; see also State v. McDonald, ___ N.J. ___, ___ (2012) (slip op. at 33) ("When a defendant has entered into a plea agreement, a deficiency [in defense counsel's representation] is prejudicial if there is a reasonable probability that, but for counsel's errors, the defendant would . . . have decided to forego the plea agreement and would have gone to trial."). In Padilla, the United States Supreme Court stated: "to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297 (citing Roe v. Flores-Ortega, 528 U.S. 470, 480, 486, 120 S. Ct. 1029, 1036, 1039, 145 L. Ed. 2d 985, 997, 1000-01 (2000)).
On this appeal, defendant makes the following arguments:
PADILLA DID NOT ESTABLISH A NEW RULE OF LAW. POINT II
PADILLA ACKNOWLEDGED EFFECTIVE ASSISTANCE HAS APPLIED TO IMMIGRATION CONSEQUENCES FOR NO LESS THAN 15 YEARS.
THE DECISION OF THE COURT BELOW WAS EGREGIOUSLY ERRONEOUS.
ERRONEOUS INFORMATION CONCERNING IMMIGRATION CONSEQUENCES AMOUNT TO BLATANT INEFFECTIVE ASSISTANCE OF COUNSEL IN NEW JERSEY.
THERE WAS NO EVIDENCE TO SUPPORT THE CHARGES AGAINST APPELLANT.
APPELLANT'S PLEA OF GUILT WAS NOT MADE KNOWINGLY OR VOLUNTARILY AND IS THEREFORE NOT CONSTITUTIONALLY VALID.
APPELLANT SATISFIED THE FIRST PRONG OF THE STRICKLAND TEST FOR INEFFECTIVE ASSISTANCE OF COUNSEL IN THE LOWER COURT PROCEEDING. POINT VIII
THE COURT BELOW WAS CLEARLY IN ERROR CONCLUDING THAT RISK OF DEPORTATION DID NOT SATISFY THE SECOND "PREJUDICE PRONG" OF STRICKLAND.
THE COURT WHICH TOOK APPELLANT'S PLEA AND WHICH SENTENCED APPELLANT FAILED TO PROPERLY DETERMINE IF APPELLANT'S PLEA WAS KNOWING AND VOLUNTARY UNDER THE CIRCUMSTANCES.
We need not address all of these arguments because resolution of some of them is dispositive of the appeal.
First, since the time that defendant's brief was filed, the New Jersey Supreme Court has held in State v. Gaitan, 209 N.J. 339, 367 (2012), that Padilla is not retroactively applicable to convictions on collateral review that were final before the date of that decision, March 31, 2010. The Court held that Padilla announced a new rule of constitutional law that does not apply to guilty pleas beyond direct appellate review. Id. at 371.
Thus, defendant's Points I through III have been decided adversely to his arguments.
We agree with defendant, however, that the Law Division was incorrect in concluding that Nunez-Valdez, supra, 200 N.J. 129, also does not apply retroactively. In Gaitan, supra, 209 N.J. at 351-57, the Supreme Court discussed the differences between Nunez-Valdez and Padilla, describing succinctly a "distinction between [defense counsel] providing affirmative misadvice and providing no advice" regarding immigration and deportation consequences of a guilty plea, id. at 356. The holding of Nunez-Valdez, supra, 200 N.J. at 139-40, was limited to ineffective assistance of counsel resulting from incorrect or misleading advice about deportation, not failure to give adequate advice.
Nunez-Valdez was preceded by several decisions holding that "affirmative misinformation from counsel to a pleading client . . could undercut a knowing and voluntary plea." Gaitan, supra, 209 N.J. at 351 (citing State v. Bellamy, 178 N.J. 127, 142 (2003); State v. Howard, 110 N.J. 113, 125 (1988); State v. Garcia, 320 N.J. Super. 332, 339-40 (App. Div. 1999)). Therefore, Nunez-Valdez did not announce a new rule of constitutional law and is retroactively applicable to PCR petitions arising from guilty pleas preceding its issuance on July 27, 2009. Gaitan, supra, 209 N.J. at 375.
In this case, defendant and his wife testified that defense counsel affirmatively gave incorrect advice about the likelihood that defendant would be deported. They both claimed that the attorney told them a Cuban refugee would not be deported. Although the defense attorney did not concede he had given that advice, he also did not directly refute the testimony of defendant and his wife. The Law Division did not make a clear finding of fact with respect to whether defendant was given incorrect advice. The Law Division stated:
Here, Petitioner has shown by a preponderance of the evidence that his attorney's "acts or omissions were outside the wide range of professionally competent assistance" as is required by the Sixth Amendment to the United States Constitution. Strickland, [supra,] 466 U.S. at 689[, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694]. The plea form that Petitioner signed and the testimony from the PCR hearing established that Petitioner did not receive advice that his deportation was a certain consequence of his plea, as required. Padilla, supra, [559 U.S. at ___,] 130 S. Ct. at 1483, [176 L.
Ed. 2d at 295].
It appears that the court did not focus on the distinction between incorrect advice and absence of advice as discussed in Nunez-Valdez and Gaitan. We will assume for purposes of this appeal that defendant was given incorrect advice about deportation and that he therefore proved the first prong of the Strickland test. The Law Division also found, however, that defendant failed to prove the second prong of the Strickland test, namely, that he was prejudiced by that incorrect advice. We see no reversible error in that finding.
On a PCR appeal, our standard of review is plenary on questions of law, but the factual findings of the trial court are granted deference if they are supported by adequate, substantial, and credible evidence. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The record before us supports the Law Division's finding that defendant would not have rejected the non-custodial plea offer, even with correct advice about deportation. It was very likely that defendant would have been convicted had he stood trial and that he would have been deported anyway in addition to having to serve a prison sentence.
The Law Division analyzed the evidence at the PCR hearing as presenting no rational basis for defendant to have rejected the prosecutor's non-custodial plea offer. It found, as we do, that the evidence of his knowing possession of stolen property was strong, albeit circumstantial. The court also found that defendant's primary objectives after his arrest in 2005 were to avoid a prison sentence, to obtain dismissal of the charges against his cousin, and to dispose of his own charges promptly because his wife was pregnant at the time. The court found, and we agree, that defendant did not have a potentially successful defense to the charge.
Five years after his guilty plea, defendant argues the State did not have proof that the electronic merchandise was stolen, in part because the State had not determined its source. While it is true that police communications with two Panasonic warehouses immediately after the arrest did not produce evidence that the merchandise was stolen from those sites, the police also learned that it was probably taken from a train. The location of the arrest and the evidence of a downed fence and bolt cutters corroborated that information. Furthermore, defendant admitted he had received the equipment late at night without any documentation. That evidence, as well as defendant's inconsistent and false statements to the police, led to a sound conclusion that the merchandise was in fact stolen and defendant knew it was stolen.
Defendant argues that a bill of lading was found in the truck and that he could have presented a defense that the merchandise was turned over to its truckers, presumably the two strangers, because delivery had been refused at its point of destination. Not only would such a defense lack credibility for merchandise valued at several thousand dollars and found intact in its original boxes, but the location and manner of defendant's possession of the merchandise undercut his claims.
Moreover, defendant entered into a plea agreement within weeks of his arrest, and the State had no immediate need to pursue an investigation of the true owner of the electronic merchandise. Had defendant rejected the plea offer, he was likely to have been convicted at trial. He would have had to serve a prison sentence and ultimately been deported in any event.
In Padilla, the Court explained that proving counsel's incorrect or inadequate advice about immigration and deportation consequences of a guilty plea is not sufficient to set aside the conviction but that defendant would also have to prove "that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297. Here, the Law Division was not convinced that defendant proved a rational basis for rejecting the non-custodial plea offer. It appropriately denied his PCR petition on the basis of that finding.