May 29, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
LIVINGSTON DALEY, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-10-1180.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief; Nancy Fayed, on the brief).
Before Judges Lihotz and Ostrer.
Defendant Livingston Daley, a Jamaican national, appeals from a January 14, 2011 order of the Law Division, entered following an evidentiary hearing, denying his petition for post-conviction relief (PCR). Defendant alleged his attorney was deficient for misinforming him about the potential deportation consequences of his conviction at the time he entered his November 9, 2009 guilty plea to a drug distribution charge. He asserted his plea was not knowing and voluntary, and sought to withdraw the plea and proceed to trial. The motion judge conducted an evidentiary hearing. He rejected the claim of misinformation, found no deficient conduct by counsel, and denied the petition. On appeal, defendant argues:
THE TRIAL JUDGE ERRED BY NOT ALLOWING DEFENDANT TO WITHDRAW HIS PLEA SINCE HE WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO ADVISE HIM OF THE IMPACT OF HIS CONVICTION UPON HIS IMMIGRATION STATUS.
A deprivation of the constitutional right to effective assistance of counsel occurs when an attorney provides inadequate representation, and that deficient performance causes the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). In reviewing a defendant's claim to be relieved of the consequences of a guilty plea, the first prong may be 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. 356, , 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).
In State v. Nuñez-Valdéz, 200 N.J. 129, 143 (2009), the Court held "a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from 'inaccurate information from counsel concerning the deportation consequences of his plea.'" State v. Brewster, 429 N.J.Super. 387, 392 (App. Div. 2013) (quoting Nuñez-Valdéz, supra, 200 N.J. at 138). The United States Supreme Court has clarified that counsel's duty is not limited to avoiding "false or misleading information" as our Court identified in Nuñez-Valdéz, supra, 200 N.J. at 138, but includes an affirmative duty to inform a defendant who was entering a guilty plea regarding the relevant law pertaining to mandatory deportation if it is "succinct, clear, and explicit[.]" Padilla, supra, 559 U.S. at, 130 S.Ct. at 1483, 176 L.Ed.2d at 295. The High Court made clear that counsel's "failure to advise a noncitizen client that a guilty plea will lead to mandatory deportation deprives the client of the effective assistance of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J.Super. 329, 331 (App. Div. 2012) (citing Padilla, supra, 559 U.S. at, 130 S.Ct. at 1483, 176 L.Ed.2d at 296).
Here, defendant does not suggest he was not advised of possible immigration consequences, but rather contends counsel failed to provide reasonably competent representation when he assured defendant that the entry of a guilty plea would not lead to deportation, and claims no one explained the offense was an aggravated felony as defined by federal law. However, these contentions must be considered in light of the evidence presented during the evidentiary hearing.
Defendant testified at the evidentiary hearing in the PCR proceeding. He explained before agreeing to enter his plea, he sought the opportunity to consult with previously retained immigration counsel regarding the possible immigration consequences of a plea and conviction. Defendant maintained immigration counsel did not explain he would be deported if he pleaded guilty. Defendant also retained criminal defense counsel, with whom he discussed his immigration status and again was advised of the possibility of being deported. Although he acknowledged defense counsel fully reviewed and explained the provisions of the plea agreement to him and answered all of his questions, defendant suggested counsel told him he did not have to worry about being deported.
The plea form used in this matter included a four-part question 17, addressing the immigration consequences of the plea, designed to alert noncitizen defendants of the need to consider deportation as a consequence of pleading guilty. The questions also directly advise noncitizens they may be deported if they plead guilty, and inform them of the right to seek immigration advice. State v. Garcia, 320 N.J.Super. 332, 337 (App. Div. 1999).
Question 17 initially asks: "Are you a citizen of the United States?" Defendant responded, "No." The question continues, "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 circled "Yes" in response to this question. The text of question 17 continues by next asking "Do you understand that if your plea of guilty is to a crime considered an 'aggravated felony' under Federal law[, ] you will be subject to deportation/removal?" Again defendant circled "Yes." Finally, defendant responded affirmatively to the last part of the question, which asks: "Do you understand that you have the right to seek legal advice on your immigration status prior to entering a plea of guilty?"
At the PCR hearing, the attorney who represented defendant during his plea was called as a witness by the State. Plea counsel testified he learned defendant was a resident, and not a citizen, and also knew defendant had been referred to him by defendant's immigration attorney, whom he believed defendant had previously consulted. Plea counsel disputed defendant's assertion he had advised him to merely respond affirmatively to the parts of question 17 regarding deportation; he testified he spent more time reviewing question 17 than any other question on the plea agreement. Plea counsel insisted he never told defendant he would not be deported if a plea was entered; rather, he told him he had serious concerns regarding possible deportation because of defendant's prior criminal record and his immigration status.
Following the evidentiary hearing, Judge Joseph Portelli found defendant's allegations of misadvice unsupported and found defendant's testimony not credible. He rejected defendant's claim that, even though he consulted with immigration counsel, he was not informed of possible deportation consequences. Rather, the judge found defendant consulted with and obtained advice from immigration counsel well before he entered his plea, and noted from the time the plea offer was extended by the prosecutor, defendant was made aware of possible deportation consequences attached to conviction, making him more informed than most defendants who assert similar claims for PCR.
Further, the judge found the plea agreement was clear, and each provision of question 17 was fully explained to defendant. Moreover, at the plea hearing, the judge addressed defendant directly and asked him whether he was a citizen of the United States, and whether he understood that if he was not a citizen he may be deported if he pled guilty. Defendant advised he was not a citizen and answered "Yes" to the latter question regarding possible deportation. The judge then repeated each of the four inquiries set forth in question 17 of the plea agreement, thus giving defendant another opportunity to reflect on the immigration issue. When defendant's answers matched those he circled on the plea agreement, the judge asked: "Do you still wish to go ahead and plead guilty today?" After defendant said, "Yes, " the judge clarified saying "And plead guilty right now?" Again defendant responded, "Yes." Further, defendant uniformly represented a desire to accept the plea agreement notwithstanding the possibility of deportation. He was repeatedly advised and given the chance to consult with immigration counsel and, in fact, took the opportunity to consult with immigration counsel prior to entering his guilty plea.
From this evidence, the judge concluded neither prong of the Strickland test was satisfied. The record refuted any suggestion counsel never addressed or improperly addressed the deportation issue, and defendant's representation was not ineffective. Further, defendant's assertion he would not have entered his plea but gone to trial was rejected as unsupported and not credible. Additionally, in his PCR application, defendant had not challenged the factual basis supporting his plea. Finding no incompetence of counsel, the judge concluded there was no prejudicial effect upon the outcome of the proceeding.
"A reviewing court is required to affirm the findings of the trial court if they could reasonably have been reached on sufficient credible evidence in the record." Nuñez-Valdéz, supra, 200 N.J. at 141. We must defer to such "'findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).
We accept the trial court's findings, which are more than amply supported by the record. See Johnson, supra, 42 N.J. at 162 (mandating "consideration of the proofs as a whole"). Defendant has not shown counsel's performance with respect to the deportation consequences of a guilty plea was so deficient he was "not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment[, ]" Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. See also United States v. Cronic, 466 U.S. 648, 657-58, 104 S.Ct. 2039, 2046-47, 80 L.Ed.2d 657, 667-68 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Counsel disclosed possible deportation consequences in the event of conviction, and defendant subsequently chose to terminate the criminal matter by accepting the plea agreement and the resultant probationary sentence, rather than proceed to trial, risking the possibility of incarceration. We conclude Judge Portelli fairly and justly reviewed defendant's claims and concluded defendant's guilty plea was entered under circumstances that evinced it was made truthfully, voluntarily, and understandingly. State v. DiFrisco, 137 N.J. 434, 456-58 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed 2d 873 (1996).