September 14, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PEDRO GOMES MICHEL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-02-0173.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 4, 2012 -
Before Judges Nugent and Ostrer.
Defendant appeals from an order denying post-conviction relief (PCR). Defendant alleges that he was misinformed about the immigration consequences of his 2003 plea to third-degree distribution of a controlled dangerous substance. N.J.S.A. 2C:35-5a(1). We reverse and remand for an evidentiary hearing.
We discern the following facts from the record, considering defendant's contentions "indulgently and . . . in the light most favorable to him." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant was born in Angola in August 1984. He entered the United States with his parents and siblings roughly five years later on a diplomatic visa. His father was a governmental official. Both parents were active participants in a political party in Angola and human rights organizations. The family remained in the United States after defendant's father's diplomatic work ended. His father was suddenly deported later in 1989. Defendant lived with his mother and siblings. Defendant attended Central High School in Newark, where he completed the eleventh grade.
Defendant was arrested in Elizabeth on November 19, 2002, after he was observed participating in the sale of heroin. Defendant admitted that his role was to retrieve the heroin from a "stash" location, and deliver it to a co-defendant who negotiated and conducted the transaction with the customer, who was also arrested. Defendant had no prior juvenile record. His arrest was his first. Defendant served four days in jail before his release on bail.
On February 6, 2003, defendant apparently waived indictment*fn1
and appeared before the court to enter a plea to a single-count accusation charging him with distribution of a controlled dangerous substance, heroin. N.J.S.A. 2C:35-5a(1). Defendant's plea form erroneously indicated as "not applicable" Question 17, which read, "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 certified that his attorney did not review the plea form with him before defendant signed it. In particular, counsel did not address Question 17. Defendant informed the probation officer who prepared his pre-sentence report in March 2003 that he was "in the process of becoming a U.S. Citizen." However, the record does not otherwise indicate defendant's immigration status at the time of the plea.
The trial judge apparently expressed surprise when defendant disclosed that he was not a citizen. The court first confirmed that defendant was literate, was thinking clearly, and was aware of the terms of the plea agreement, which was to plead guilty to third-degree distribution, in return for probation conditioned on 180 days incarceration. The court engaged in the following exchange:
THE COURT: Are you a United States citizen?
THE DEFENDANT: No.
THE COURT: Are you - pardon me?
THE DEFENDANT: No.
The court then inquired whether defendant had discussed the immigration consequences of his plea.
THE COURT: Have you discussed with Mr. Spagnoli the fact that this may affect your immigration status?
THE DEFENDANT: Yes.
THE COURT: Did Mr. -
THE DEFENDANT: He did.
THE COURT: He did. Do you know that you may be deported as a result of this offense?
MR. SPAGNOLI: He understands that, Judge.
THE COURT: I want him to tell me that. Do you understand you may be deported from this country as a result of that?
THE DEFENDANT: Yes.
THE COURT: Have you discussed with Mr. Spagnoli the fact that you may be deported?
THE DEFENDANT: Yes.
The court then asked defendant if he wished to discuss further the immigration consequences of his plea, but after defendant stated that he did, the court moved on to other matters.
THE COURT: Do you want to talk to Mr. Spagnoli or the Court about anything as to immigration at this time?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with the services of Mr. Spagnoli?
THE DEFENDANT: Yes.
The court then engaged in a series of questions regarding the plea agreement prompting answers that - given the "not applicable" answer to Question 17 - were inconsistent with defendant's disclosure of non-citizenship.
THE COURT: Did he [counsel] tell you about your rights and responsibilities[?]
THE DEFENDANT: Yes.
THE COURT: Did you read the plea agreement? THE DEFENDANT: Yes.
THE COURT: Did you understand the plea agreement?
THE DEFENDANT: Yes.
THE COURT: Did you go over this plea agreement with Mr. Spagnoli?
THE DEFENDANT: Yes.
THE COURT: Did you sign the plea form?
THE DEFENDANT: Yes.
THE COURT: Are all your answers truthful?
THE DEFENDANT: Yes.
Defendant ultimately appeared before a different judge for sentencing in August 2003. Defendant was represented by a different attorney. His immigration status was not mentioned. The court imposed sentence in accord with the plea agreement.
In 2005, defendant received a one-year term of probation on a "wandering" charge in Essex County.*fn2 Also in 2005, a violation of probation was filed against defendant alleging he failed to pay fines on his Union County sentence. He failed to appear after the notice was sent to a former address, and a bench warrant was issued. A violation of probation was also filed on the Essex County charge, but that VOP was resolved in 2007. However, the 2005 bench warrant was not addressed.
In July 2009, defendant was arrested again on a VOP on the Essex County matter, and a detainer was lodged against defendant based on the 2005 bench warrant. Defendant was ultimately sentenced to forty-five days and discharged from probation on the Essex County charge. After serving that sentence, he served an additional twenty-eight days awaiting his VOP hearing in Union County. The court in September 2009 discharged defendant from probation after noting that "there's been some management problem in his case," and defendant had "tried to get himself back on track," in part by making significant progress toward completing a two-year degree program at Essex County College. However, while defendant was incarcerated on the VOPs, federal immigration officials lodged a detainer against him.
In November 2009, Defendant filed his pro se petition for PCR, certifying, "I was never told I would be Deported by plea[d]ing guilty by said charge[.]" In an amended verified petition for PCR filed by appointed counsel in May 2010, defendant highlighted the erroneous response to Question 17 of the plea form; asserted that counsel did not review the plea form with him; and alleged "trial counsel never advised [him] that a guilty plea to a controlled dangerous substance offense was a deportable offense, under federal law. As such, [he] would never have pled guilty had he known there was mandatory deportation for this offense." Defendant also alleged that counsel did not review the pre-sentence report, which noted that he was a non-citizen, born in Angola, and "was in the process of becoming a U.S. Citizen."
After a non-evidentiary hearing in February 2011, the court denied defendant's petition. In a written decision, the court found excusable neglect for defendant's filing more than five years after the conviction, noting that "defendant was unaware of the existence of a basis for filing a petition until 6 years after the entry of judgment." Once he became aware of the basis for the PCR, he filed promptly.*fn3
Turning to the merits, however, the court found that defense counsel was not ineffective.
There is no valid argument by Mr. Michel that his counsel gave incorrect advice or gave no advice. The plea transcript clearly indicates that defendant acknowledged that he and counsel did discuss immigration consequences. The defendant further acknowledged that he was advised that he could be deported. Since counsel raised the possibility of deportation, Mr. Michel cannot argue that he received no advice. The claim is that the advice was inadequate in that it did not include an explanation of the anticipated result of a deportation proceeding.
The judgment of conviction in the case was entered in 2003 and the petition for PCR was not filed until after Padilla [v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010)] and [State v. ]NunezValdez[, 200 N.J. 129 (2009)] were decided. The state of the law at the time of the plea was that defense counsel's performance was ineffective if he provided misinformation regarding immigration consequences.
In this case, the record supports the finding that defendant had received information that his plea could affect his immigration status. Although the plea form was filled out incorrectly, the testimony of the defendant indicates that the matter of immigration was discussed with counsel and understood by the defendant. There is no indication that the defendant was provided incorrect information. In February 2003, the defendant's lack of understanding of the collateral consequence of the plea was not a basis to vacate it. Padilla created a new rule of law and thus, does not apply to cases such as defendant's. Teague v. Lane, 489 U.S. 288[, 296, 109 S. Ct. 1060, 1067-68, 103 L. Ed. 2d 334, 346] (1989).
Defendant appeals and presents the following points for our consideration:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTION VACATED BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR PLEA PROCEEDING IN WHICH HE WAS ACCURATELY INFORMED ABOUT HIS EXPOSURE TO DEPORTATION WAS VIOLATED.
POINT II SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421. The trial court's credibility determinations, to which we normally defer, are not implicated. Ibid.
To establish a prima facie claim of ineffective assistance of counsel, a petitioner must satisfy the two-prong test under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 692 (1984). Defendant must establish
(1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as counsel as guaranteed by the Sixth Amendment and second, (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. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
While a petitioner is obliged to establish the right to relief by a preponderance of the credible evidence, State v. Presciose, 129 N.J. 451, 459 (1992), the court must consider the petitioner's "contentions indulgently and view the facts asserted by him in the light most favorable to him [or her]." Cummings, supra, 321 N.J. Super. at 170. A hearing should be held if the PCR petition involves genuine issues of material fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). On the other hand, a court need not hold a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or . . . the defendant's allegations are too vague, conclusory or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (internal citation omitted). See also Cummings, supra, 321 N.J. Super. at 170 ("[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel.").
Our Supreme Court has addressed the evolving standard of performance an attorney owes a client whose conviction may affect his or her immigration status. State v. Gaitan, 209 N.J. 339 (2012). The Court declined to give retroactive effect to the dictate in Padilla v. Kentucky, 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. Id. at 376. Gaitan was alerted to potential immigration consequences through the plea form, and counsel did not affirmatively provide false information. Id. 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." Id. at 374. 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. Id. at 379. "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[.]" Ibid. 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 not apparently a concern. Id. at 378-79.
Applying these principles, we are persuaded that an evidentiary hearing is appropriate to test defendant's assertions of ineffective assistance of counsel and resulting prejudice. For the purposes of our review, we must accept defendant's assertion that counsel did not discuss his immigration status before entering the plea. We therefore presume that defense counsel prepared the responses on the plea form. Consequently, the erroneous "not applicable" response to Question 17 constituted affirmative misadvice on the subject of immigration consequences. See State v. Garcia, 320 N.J. Super. 332, 340 (App. Div. 1999) ("not applicable" response on plea form of non-citizen constituted prima facie evidence of misinformation that misled defendant about possible deportation consequences, warranting evidentiary hearing); State v. Vieira, 334 N.J. Super. 681, 688 (Law Div. 2000) (where defense counsel circled "N/A" on plea form of defendant who previously disclosed he was a resident alien, and defendant disclosed difficulty reading and writing English, counsel's performance was deficient).
Nor do we find, on this record, that defendant's subsequent statement at the plea hearing cured that misadvice. We cannot conclude that defense counsel provided effective assistance solely on the basis that defendant answered "yes" when asked if he understood he "may be deported . . . as a result" of his offense, and if he had discussed with his attorney "the fact that [he] may be deported." The record raises a genuine material issue as to whether defendant understood those consequences.
Reflecting his apparent lack of understanding, defendant stated, in response to a court question, that he wished to talk to his attorney or the court at greater length about the immigration consequences of his plea. Particularly given the sudden and unexplained deportation of defendant's father, and the political activities of both his parents, it is reasonable to conclude on the present record that defendant wanted to further explore the immigration impact of his plea. However, rather than suspend the plea hearing to enable defendant to discuss the matter further with counsel and the court, the judge continued the plea hearing without interruption.
Defendant's confusion is also evident in his response to the court's questioning about the plea form. After establishing that the "not applicable" response to Question 17 was clearly erroneous, defendant incongruously agreed that he read the form, reviewed it with counsel, and it was truthful. Also reflective of defendant's lack of understanding was his statement to the probation officer who prepared his PSR. Notwithstanding his plea to an aggravated felony, defendant reported he was in he process of becoming a citizen.
The contrast to Gaitan is striking. Gaitan's plea form correctly answered Question 17, and Gaitan had not "sought more information about immigration consequences[.]" Gaitan, supra, 209 N.J. at 375. Defendant's plea form incorrectly answered Question 17, and despite defendant's concessions to the court, defendant did seek more information, but was stymied.
Finally, we believe there is sufficient evidence in the record to establish a prima facie claim of prejudice, that is, as a result of the alleged ineffective assistance of counsel, defendant "would not have pled guilty and would have insisted on going to trial." Nunez-Valdez, supra, 200 N.J. at 139 (internal quotation and citation omitted). The potential consequences of conviction after trial were not so severe as to render implausible defendant's claim that he would have rejected the plea offer. Defendant had no prior arrests or convictions. He was a youthful offender who enjoyed a presumption of nonincarceration. See N.J.S.A. 2C:44-1(e).*fn4
Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.