On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-02-0914.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 28, 2012
Before Judges Axelrad and Sapp-Peterson.
Defendant, Francisco Morillo-Mosquea, a legal resident alien born in and a citizen of the Dominican Republic, appeals denial of his petition for post-conviction relief (PCR), following an evidentiary hearing. Defendant alleged ineffective assistance of trial counsel in failing to apprise him of the immigration consequences of his guilty plea. We affirm substantially for the reasons stated by Judge Joseph A. Falcone in his comprehensive oral decision of December 2, 2010.
Defendant pled guilty in November 2007 before Judge Falcone to second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, in exchange for a recommended eight-year sentence and dismissal of first-degree aggravated sexual assault of a child, second-degree sexual assault of a child, and third-degree terroristic threats.*fn1 Although defendant subsequently denied his crime when speaking with the Avenel psychologist, he later re-affirmed his guilt to Judge Falcone on the record on February 29, 2008, and advised he wanted to continue with his plea of guilty and sentencing.
On July 24, 2008, however, prior to sentencing, defendant moved to withdraw his guilty plea, advising Judge Falcone, "I don't feel guilty[,]" and claiming he pled guilty because his attorney told him to do so. The judge denied the motion. On July 30, 2008, the judge sentenced defendant to the negotiated eight-year term on the endangerment charge. He imposed mandatory fines, penalties, and assessments, as well as Megan's Law requirements and community supervision for life. The Department of Homeland Security issued an immigration detainer for defendant on November 5, 2008.
Defendant did not file a direct appeal. On June 9, 2010, however, he filed this PCR petition. Defendant certified that his trial attorney told him he would not be subject to deportation and forced him to plead guilty. Judge Falcone held an evidentiary hearing on defendant's PCR petition, during which defendant testified, as did his trial attorney John T. Somohano. Contrary to his certification, defendant testified that he never discussed deportation with Somohano. He claimed he never would have pled guilty had he known he would have been subject to deportation.
On cross-examination, defendant admitted meeting with Somohano about ten times, speaking with him other times, discussing the facts of the case, and asking him questions. He testified he and Somohano conversed in defendant's native language of Spanish. Defendant also related that Somohano knew he was a resident alien but was not a United States citizen. Defendant conceded that during all his conversations with Somohano, even though defendant was aware of his immigration status, he never asked the attorney "whether or not [his] status as a resident [alien] would be affected if [defendant] were to be found guilty." He reiterated that at no time during Somohano's representation did the subject of immigration or deportation ever come up.
Defendant also admitted he filled out the plea agreement with the assistance of Somohano in November 2007, but claimed not to remember answering question #17 dealing with potential deportation. In answering Judge Falcone's questions, defendant claimed that in neither of his two prior arrests that resulted in criminal proceedings in the Superior Court (2006 and the current charge), did either attorney mention immigration or deportation consequences.
Somohano testified he and defendant conversed in Spanish, which Somohano speaks fluently, as it was his first language. He met repeatedly with defendant, who always appeared to comprehend what was being related to him. Somohano was aware defendant was from the Dominican Republic, and thus the topic of immigration or the prospect of deportation came up. The attorney expressly told defendant he could not give him advice about the immigration consequences but the plea would likely result in immigration issues for him, and absolutely did not tell defendant he would not be deported if he pled guilty to the charge. Somohano explained:
I specifically remember one conversation . . . where I advised [defendant] that I was his state criminal attorney and not his federal immigration attorney, and that I could not guarantee him any results in the federal level, that I would do my best to limit his exposure in the federal level with the charges here in the state. However, I did not feel I can adequately represent him in the state level trying to avoid issues for him on the federal level.
What I mean is that sometimes my clients . . . are more concerned with the immigration ramifications than the actual ramifications of the state plea, and as I advised . . . [defendant] in this case, I cannot worry about an immigration issue possibly being created by a state plea if, in fact, I believe the state plea is in my client's best interest.
Ultimately, . . . my office was retained by [defendant] to take into account and squarely address his state criminal problems and ...