September 14, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARVIN JARVIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-08-1961.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 4, 2012 -
Before Judges Alvarez and Ostrer.
Defendant appeals from an order denying post-conviction relief (PCR). Defendant entered a plea in Monmouth County to third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5b(3), and distribution of over one-half ounce of CDS, cocaine, to an undercover detective, N.J.S.A. 2C:35-5b(2).*fn1
He had been charged in a seventeen-count indictment with multiple CDS-related offenses on various days in the fall of 2006. Pursuant to the plea agreement, Judge Thomas F. Scully treated the second-degree offense as a third-degree offense for sentencing purposes and sentenced defendant to five years probation, conditioned on participation in Drug Court.
Defendant argued in his pro se PCR petition and through appointed PCR counsel, that his trial counsel was ineffective because he failed to inform defendant that, as a permanent legal resident from the Dominican Republic, he was subject to mandatory deportation as a consequence of his conviction. Defendant certified that he would not have entered into the plea agreement had he been so informed. Judge Scully denied defendant's petition without an evidentiary hearing. We affirm.
In his allocution, defendant admitted that he sold cocaine to an undercover detective on multiple days, including on December 28, 2006 in Matawan. He admitted that he distributed over one-half ounce of cocaine. Before defendant entered his plea, both defense counsel and the court expressly addressed defendant's status as a non-citizen, and the consequences of his plea.
Upon stating his appearance at the outset of the plea hearing February 15, 2008, defense counsel noted defendant's status and the likelihood of deportation.
John Brown on behalf of Mr. Jarvis, Your Honor.
I do note that Mr. Jarvis is a permanent resident. He came here from Antigua, so that question was marked that he understands that he can be deported.
I informed him that - I cannot give him any legal advice on whether he would be deported, though we had two former Drug Court clients that, despite their successful participation in Drug Court, when pled guilty to the similar offenses, were deported.
So, I've instructed him to seek . . .
[c]counsel immediately on that particular issue.
Judge Scully returned to the issue in his questioning of defendant.
THE COURT: And you are - you are not a United States citizen; is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: And now, . . . Mr. Brown has explained to you in detail the fact that this plea could result in your deportation.
THE DEFENDANT: Yes, sir.
THE COURT: This unquestionably will have some type of an impact on your residency status, so you need to . . . address that immediately by way of seeking Counsel upon the conclusion of this proceeding. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Any questions about that at all? THE DEFENDANT: No, sir.
THE COURT: Notwithstanding that even though this has the potential for having that type of an impact, it is your intention to freely and voluntarily enter this plea of guilty; correct?
THE DEFENDANT: Yes, sir.
Defendant also testified that he reviewed every question in the plea form, and answered the questions truthfully. Defendant answered "Yes" to question 17 of the form, which 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?"
There is no evidence in the record that defendant consulted with an immigration attorney as the court strongly advised, pending sentencing. The issue of defendant's immigration status and the consequences of his plea were not mentioned when the court sentenced defendant on March 7, 2008. Defendant did not file an appeal from his sentence.
He filed his pro se PCR in September 2009. The court heard oral argument on August 4, 2010. Finding that an evidentiary hearing was unnecessary, Judge Scully applied the two-prong test for determining whether defendant was entitled to PCR. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).
Judge Scully found that defense counsel had provided effective assistance regarding the immigration consequences of the plea. The judge distinguished defense counsel's performance from that of the attorney in State v. Nunez-Valdez, 200 N.J. 129, 140-42 (2009), who affirmatively misinformed his client about the immigration consequences of his plea in response to his inquiry. Referring to the case before him, Judge Scully found, "Defense Counsel never made any . . . material misleading information about the likelihood of deportation following this Defendant's plea." Rather, Judge Scully noted that defense counsel informed defendant that two previous clients who entered pleas to similar crimes and received Drug Court sentences were in fact deported. The judge recalled that he told defendant that his plea would "unquestionably have an impact on his immigration status" and advised him to seek advice from immigration counsel.
Judge Scully reviewed the United States Supreme Court's then-recent decision in Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). He noted the Court held that an attorney's "misadvice or omission of advice regarding their immigration consequences constitutes deficient performance of Counsel." He noted that "when the immigration consequences are straightforward, Counsel must advise the Defendant their plea does carry the risk of adverse immigration consequences," but "when the immigration . . . consequences are not straightforward, Counsel . . . need do no more than to advise the non-citizen client that pending charges may carry a risk of adverse immigration consequences[.]" Judge Scully concluded that defense counsel satisfied that standard as he did inform defendant that his plea "would result in the risk of deportation."
Judge Scully also found defendant had failed to present prima facie evidence of prejudice from the allegedly ineffective assistance of counsel. "[T]here is no indication whatsoever that this Defendant would have decided to go to trial rather than to take this plea." The court noted the State's case was very strong, as defendant was alleged to have sold drugs repeatedly to an undercover detective; and he received an "extraordinarily favorable" plea agreement, allowing a non-custodial sentence for a second-degree offense. The court observed defendant had presented no evidence that he sought immigration counsel after his plea hearing, as counsel and the court suggested.
Defendant appeals and raises the following points for our consideration:
THE FAILURE OF TRIAL COUNSEL TO ADVISE DEFENDANT THAT, AS A RESULT OF HIS PLEA AGREEMENT, HE WOULD BE DEPORTED, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
THE FAILURE OF TRIAL COUNSEL AND THE TRIAL COURT TO EXPLAIN THE IMMIGRATION CONSEQUENCES OF DEFENDANT'S GUILTY PLEA CAUSED DEFENDANT TO LACK KNOWLEDGE AND UNDERSTANDING OF THE PLEA AGREEMENT, RENDERING HIS PLEA DEFECTIVE, BECAUSE HE NEVER KNOWINGLY WAIVED HIS RIGHT TO A JURY TRIAL (PARTIALLY RAISED BELOW).
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
We affirm, substantially for the reasons set forth in Judge Scully's comprehensive and well-reasoned oral opinion. We add the following comments.
Neither Judge Scully nor the parties had the benefit of our Supreme Court's decision in State v. Gaitan, 209 N.J. 339 (2012). However, it is now settled that when defendant entered his plea in 2008, defense counsel was not required, as part of his obligation to provide effective assistance, to inform defendant that he faced a virtual certainty of removal or deportation as a result of his conviction of an aggravated felony. The Gaitan Court declined to give retroactive effect to the dictate in Padilla, supra, ___ U.S. at ___, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296 that "an attorney must tell a client when removal is mandatory - when consequences are certain[.]" Gaitan, supra, 209 N.J. at 380. Our Supreme Court held that Padilla established a new rule of law. Id. at 373.
Rather, defense counsel pre-Padilla was required to avoid affirmatively misinforming his client about the immigration consequences of his plea; he was also required not to compound the error by providing inaccurate and misleading information. Ibid. The Court in Nunez-Valdez, supra, 200 N.J. at 140-42, held that providing such misinformation and misleading information was ineffective assistance, and the Court in Gaitan, supra, held that was not a new rule of law and thus it applied retroactively, 209 N.J. at 373-74.
Applying the standard of performance enunciated in NunezValdez, but refraining from retroactively applying the standard enunciated in Padilla, the Court held that Gaitan's attorney did not provide ineffective assistance of counsel under far less compelling circumstances than those presented here. Gaitan was alerted to potential immigration consequences through the plea form, and counsel did not affirmatively provide false information. Gaitan, supra, 209 N.J. at 374. "Gaitan, at a minimum, was put on notice of the issue of potential immigration consequences through the plea form, which distinguishes this matter from Nunez-Valdez, where the defendant received false and affirmatively misleading information." Ibid. The Court noted there was no evidence Gaitan sought additional information about immigration consequences. Id. at 375. The Court concluded, "Because Gaitan neither received affirmative misadvice, nor provided any support for his bald assertion that he would not have pled had he known of the deportation consequences, he is not entitled to an evidentiary hearing." Id. at 376.
In the companion case of State v. Goulbourne, the court expressly advised the defendant, "by reason of this conviction, you could be deported," but "[i]t would be up to Immigration." Id. at 377. Counsel conceded he did not practice immigration law; added that deportation was "not guaranteed because we don't know;" but then stated, "they have the right to deport you, and they may very well do that[.]" Id. at 378. The Gaitan Court found that Goulbourne had received effective assistance. "Here, defendant did not receive wrong advice under existing law at the time. The immigration consequences were emphasized as real and beyond the control of the criminal justice system . . . ." Id. at 379. The Court also found no prejudice in Goulbourne's case because the record reflected that his attention was focused on the length of his incarceration, and immigration consequences were apparently not a concern. Id. at 378-79.
In this case, defendant received significantly more extensive, pointed and clear advice regarding his plea's immigration consequences than did Gaitan or Goulbourne. In addition to defendant's acknowledgement, like Gaitan's, of the possibility of deportation on the plea form, defense counsel expressly warned defendant on the record that "he can be deported." Rather than affirmatively state, as did Goulbourne's counsel, that deportation was "not guaranteed," when it in fact was mandatory given his aggravated felony, defense counsel here implied that deportation may be unavoidable. He stated two former clients in similar circumstances were deported and offered no distinction between those clients and defendant. While defense counsel conceded that he was not prepared to "give him legal advice on whether he would be deported," he "instructed [defendant] to seek Counsel immediately."
Judge Scully reinforced defense counsel's advice by stating not only that "this plea could result in [defendant's] deportation," but also that his plea "unquestionably will have some type of an impact on [defendant's] residency status." Defendant acknowledged all that advice and proceeded to enter a plea. In sum, defense counsel exceeded the minimum standard enunciated in Nunez-Valdez, supra.
We also find sufficient credible evidence to support Judge Scully's determination that even if defense counsel were deemed deficient, there is no reasonable probability that defendant would not have entered a plea and would have insisted on going to trial. See Nunez-Valdez, supra, 200 N.J. at 138-39 (describing prejudice from ineffective assistance of counsel in entering a plea). As Judge Scully noted, defendant was confronted with strong proof, and the offer of a favorable, non-custodial disposition. Judge Scully appropriately rejected defendant's conclusory claim that had defense counsel been more definitive and predicted with certainty that defendant would be deported, defendant would not have entered a plea. Defendant's failure to seek immigration counsel, as advised by the court and defense counsel, belies his purported concern regarding immigration consequences.
Lastly, although our Supreme Court has determined that Padilla does not apply retroactively to defendant's plea, we address Judge Scully's determination that defense counsel satisfied the Padilla standard of effective assistance of counsel. We do so mindful that the Third Circuit Court of Appeals has determined that Padilla is not a new rule and should be applied to pre-Padilla pleas. See United States v. Orocio, 645 F.3d 630, 641 (3d Cir. 2011).*fn2 Consequently, defendant may seek a writ of habeas corpus from federal district court. See Gaitan, supra, 209 N.J. at 383 (Albin and Long, JJ., dissenting) (noting that defendants may seek habeas corpus relief from federal district court if denied relief based on non-retroactivity of Padilla in state court).*fn3
We discern no error in Judge Scully's determination that defense counsel satisfied the standard of effective assistance set forth in Padilla, supra. Under Padilla, counsel was required to do more than inform his client that his charges "may carry a risk of adverse immigration consequences," which is sufficient "[w]hen the [immigration] law is not succinct and straightforward." Padilla, supra, ___ U.S. at ___, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296. Defendant faced virtually certain deportation, having committed an aggravated felony. See Gaitan, supra, 209 N.J. at 358 (discussing that deportation is practically inevitable as a consequence of a conviction for an aggravated felony). Consequently, counsel was required to be unequivocal. "[W]hen the deportation consequence is truly clear, . . . the duty to give correct advice is equally clear." Padilla, supra, ___ U.S. at ___, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296.
Although defense counsel did not explicitly state defendant faced inevitable or certain deportation, both he and Judge Scully left defendant with no reason to believe that he would face a consequence different from defense counsel's two former clients who were deported. The suggestion that defendant immediately seek immigration counsel was not made with the goal of exploring some slight possibility. It was offered with a sense of urgency, because of the conveyed certainty that, as the judge correctly cautioned, defendant's immigration status would "unquestionably" be affected.
Under the circumstances, defendant could not reasonably have concluded, based on counsel's and the court's statements, that deportation was a mere possibility. Rather, counsel - particularly with the court's supplemental warnings - effectively conveyed to his client that his plea would have a dire and certain impact on his immigration status, and deportation was predictable. In that respect, he satisfied the standard of effective assistance defined in Padilla.