June 24, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANIELLO MOSCHILLO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 12, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 93-10-1623.
Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).
Before Judges Lihotz and Kennedy.
Defendant Aniello Moschillo appeals from a January 31, 2011 order denying his petition for post-conviction relief (PCR). In his PCR petition, defendant maintained trial counsel had rendered ineffective assistance by failing to fully advise him of the immigration consequences of conviction for drug distribution charges. Defendant had pleaded guilty pursuant to a plea agreement. Following an evidentiary hearing, defendant's petition to vacate his plea was denied. On appeal, defendant argues:
DEFENDANT'S CONVICTION MUST BE VACATED BECAUSE TRIAL COUNSEL FAILED TO INFORM HIM AS TO THE POSSIBLE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA.
We have considered defendant's arguments in light of the record and the applicable law. We affirm.
On March 24, 1994, pursuant to a negotiated plea agreement, defendant, an Italian national, pleaded guilty to second-degree possession of a controlled dangerous substance (cocaine), with intent to distribute, N.J.S.A. 2C:35-5a(1). In exchange for his plea, the State agreed to recommend a sentence not to exceed seven years, and to dismiss the remaining six charges included in the indictment.
During the plea hearing, defendant testified he understood the charges against him and satisfactorily discussed them and the possible penal consequences with his attorney. Counsel advised he had reviewed the plea agreement. Later, in response to the judge's inquiry, defendant agreed he had read, reviewed with counsel, and understood each provision in the plea agreement.
Defendant remained free on bail pending sentencing. He did not appear for sentencing and a warrant was issued. Defendant remained a fugitive for fourteen years. When captured, he faced sentencing for the 1994 conviction. On March 14, 2008, the judge imposed a flat five-year period of incarceration. Defendant did not file an appeal.
Defendant filed his first petition for PCR on November 23, 2009. Following review, the judge granted his request for an evidentiary hearing, which was held on November 10, 2010.
During the hearing, defendant's plea counsel testified. Although he had no independent recollection of the details of defendant's case, he remembered defendant was not a United States citizen and stated, "I'm sure there was a discussion" on the plea form's question about deportation and immigration status. Counsel also explained he would typically advise such clients to seek advice from immigration counsel because he did not know "the exact consequences of this plea, but with any plea there's a possibility of deportation."
Defendant also testified. He asserted counsel never discussed the possibility of deportation if he entered a guilty plea. Further, he could not recall any question within the plea agreement directed to possible deportation. Defendant maintained had he known he was subject to deportation, he would have gone to trial. Defendant insisted, he would rather be confined to state prison than free in Italy.
In a January 31, 2011 written opinion, Judge Liliana DeAvila-Silebi credited plea counsel's testimony, finding the issue of possible deportation was raised during counsel's review of each question in the plea agreement. She concluded counsel "was not ineffective and his performance in . . . this plea was not deficient." Reviewing the strength of the State's proposed trial evidence, which included a lengthy investigation, wiretap intercepts of a telephone call between defendant and his co-defendant supplier, police surveillance observations of conduct between defendant and co-defendants, which resulted in their arrest, lab testing confirming the evidence seized was cocaine, along with large sums of cash found on defendant, the judge noted defendant faced a possible thirty-year sentence, with at least a fifteen-year period of parole ineligibility if convicted after trial. She determined defendant failed to show how a decision to reject the plea in favor of trial "would have been rational in light of the substantial likelihood of conviction[.]" The judge entered an order denying the petition for PCR. Defendant appealed.
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) (citation omitted).
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 entering a guilty plea of the relevant law pertaining to mandatory deportation. Padilla, supra, 559 U.S. at ___, 130 S.Ct. at 1483, 176 L.Ed.2d at 295. The United States Supreme 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." Id. at at ___, 130 S.Ct. at 1483, 176 L.Ed.2d at 296.
In Chaidez v. United States, ___U.S. ___, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), the Court concluded the rule announced in Padilla imposed a new obligation and announced a new rule of law. Accordingly, its holding would be applied prospectively and "[u]nder Teague[ v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334, 356 (1989)], defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding." Chaidez, supra, ___ U.S. at ___, 133 S.Ct. at 1113, 185 L.Ed.2d at 162.
Here, defendant's plea, entered on March 24, 1994, predates Padilla's holding, entered over sixteen years later. Consequently, the PCR judge properly concluded Padilla's holding was inapplicable and evaluated defendant's claims under the law applicable to claims of ineffective assistance of counsel regarding the deportation consequences of conviction following a guilty plea on the date of defendant's plea. At the time defendant pled guilty, New Jersey case law instructed that "a defendant's guilty plea is not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Gaitan, supra, 209 N.J. at 361. See also State v. Santos, 210 N.J. 129, 144 (2012) (holding guilty pleas entered prior to Padilla, must be reviewed to determine whether counsel provided affirmative false information regarding the plea's immigration consequences).
Deferring to Judge DeAvila-Silebi's factual findings and credibility determinations made following the evidentiary hearing, State v. Locurto, 157 N.J. 463 474 (1999), we reject defendant's claim he has satisfied his burden warranting PCR relief. As to Strickland's first prong, the record supports the judge's finding that PCR counsel thoroughly reviewed all questions on the plea agreement, including Question 17, addressed to possible deportation consequences. Further, counsel advised defendant to seek advice from immigration counsel. Defendant failed to show he was given false or misleading advice regarding possible immigration consequences of his plea Gaitan supra 209 N.J. at 361 Counsel's representation fully met the prevailing standards expected of criminal defense attorneys Padilla supra 559 U.S. at___, 130 S.Ct. at 1482 176 L.Ed.2d at 294
Further regarding Strickland's second prong defendant's assertions made almost twenty years following his plea failed to sustain his burden to show a reasonable probability that he would have rejected the plea agreement in favor of trial The seven-year flat sentence was an extraordinarily lenient one in light of the thirty years faced upon conviction by a jury Moreover defendant remained free on bail pending sentence supporting the PCR judge's finding his desire in pleading guilty was "to evade incarceration" an event he would not have risked had he opted to proceed to trial