July 9, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANGEL CORDERO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 16, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County and Union County, Indictment Nos. 98-09-1361; 00-04-0414; 00-09-1035.
Joseph E. Krakora, Public Defender, attorney for appellant (Virginia Drick Messing, Designated Counsel, on the brief).
Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fisher and St. John.
Defendant Angel Cordero appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
We briefly summarize the relevant procedural history and the facts based on the record before us.
Defendant was indicted for various offenses under three separate indictments. Pursuant to a negotiated plea, defendant pled guilty to first-degree conspiracy to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1), and N.J.S.A. 2C:35-5(b)(1); third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1); first-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(1); third-degree possession with intent to distribute near school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7; third-degree possession with intent to distribute near school property, N.J.S.A. 2C:35-7; and second-degree possession with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2). The state agreed to dismiss the remaining counts against defendant in his three indictments.
On October 23, 2000, defendant appeared before the sentencing judge and entered his guilty pleas. At the plea hearing, defendant was asked by his lawyer, "do you understand that, by pleading guilty, and you not being a United States citizen, they could deport you, if they wanted to?" Defendant responded "Yeah." Question seventeen of the plea form completed by defendant also 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?" Defendant answered "Yes" to this question.
Defendant was sentenced on October 26, 2001, to an aggregate sentence of fifteen years imprisonment, subject to five years of parole ineligibility. Appropriate fines and penalties were also imposed. On October 29, 2001, the sentencing judge amended defendant's sentence to an aggregate term of fourteen years imprisonment with five years parole ineligibility. Defendant did not file a direct appeal.
Defendant filed a pro se motion to modify his sentence which was denied on December 22, 2005. Defendant then filed his first petition for PCR in August 2008. That PCR petition dealt with sentencing issues regarding his 2001 judgment of conviction. The first PCR judge clarified defendant's sentence in a letter to the State Parole Board.
On April 9, 2010, defendant filed his second petition for PCR contending he received ineffective assistance of counsel because he was not advised that deportation was mandatory if he pled guilty. Defendant's PCR petition was denied on February 18, 2011. This appeal ensued.
On appeal, defendant raises the following points for our consideration:
IT WAS JUDICIAL ERROR TO DENY THE MOTION FOR POST-CONVICTION RELIEF.
THE DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
THE MOTION FOR POST-CONVICTION RELIEF IS NOT BARRED PROCEDURALLY BY RULE 3:22-2 OR RULE 3:22-4 AS CONSTITUTIONAL ISSUES ARE ASSERTED.
ALL POINTS RAISED BY DEFENDANT-APPELLANT IN ANY AND ALL PRIOR AND SUBSEQUENT SUBMISSIONS TO THE COURT ARE INCORPORATED BY REFERENCE INTO THIS BRIEF.
The Sixth Amendment of the United States Constitution assures a person accused of a crime the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the general two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).
The United States Supreme Court has extended these principles to the representation provided by a criminal defense attorney to a defendant in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. __, __, 132 S.Ct. 1376, 1384-85, 182 L.Ed.2d. 398, 406-07 (2012); Missouri v. Frye, 566 U.S. __, __, 132 S.Ct. 1399, 1407-08, 182 L.Ed.2d. 379, 390 (2012). A defendant must establish with "reasonable probability" that the result in his case would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at __, 132 S.Ct. at 1384, 182 L.Ed.2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). Hence, in the present context involving a negotiated plea agreement, in order for defendant to obtain relief based on ineffective assistance grounds, he must show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency, there is a reasonable probability that he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203, 208-10 (1985); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996).
As to the first prong of deficient performance, defendant alleges that his plea counsel failed to advise him that deportation was a mandatory consequence of his conviction. That alleged failure did not amount to ineffective assistance of counsel under the Sixth Amendment, at the time that defendant's plea was entered in October 2000 and at the time he was sentenced in October 2001. It was not until March 31, 2010, that the United States Supreme Court held in Padilla v. Kentucky, 559 U.S. 356, __, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284, 298-99 (2010), that plea counsel's failure to advise a defendant of mandatory deportation consequences from a conviction could represent deficient performance in violation of a defendant's constitutional rights.
The more stringent advice obligations concerning deportation recognized in Padilla do not apply retroactively. See Chaidez v. United States, 568 U.S. __, __, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149, 154 (2013); State v. Gaitan, 209 N.J. 339, 367 (2012), cert. Denied, __ U.S. __, 133 S.Ct. 1454, 185 L.Ed.2d 361 (2013). Defendant cannot seek refuge in the holding of Padilla with respect to his plea counsel's alleged failure to advise him that his deportation would be mandatory.
Even if we were to accept defendant's claim that his plea counsel affirmatively gave him misleading advice by stating that his deportation was only a possibility, that claimed error does not automatically entitle him to PCR relief. See State v. Nunez-Valdez, 200 N.J. 129, 142-43 (2009) (recognizing that a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from "inaccurate information" from counsel concerning deportation consequences, but still requiring the defendant to show that he was actually prejudiced by that misadvice). Defendant must separately prove that there was a reasonable probability that he would have rejected the plea offer and taken his chances at a trial. Lafler, supra, 566 U.S. at __, 132 S.Ct. at 1384, 182 L.Ed.2d at 406-07.
Defendant also argues the PCR judge erred in denying him an evidentiary hearing. However, such hearings will not be granted unless a defendant can first establish a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462. Defendant failed to make such a showing.
Here, defendant has shown neither that his plea counsel was constitutionally deficient, nor a reasonable probability that if he had received different advice about his deportation consequences he would have rejected the State's plea offer and gone to trial Because of these patent deficiencies we discern no reason to disturb the PCR judge's decision
Turning to defendant's next claim we do not agree that the PCR judge erred by finding that defendant had not presented a sufficient reason for failing to comply with filing requirements established by Rule 3:22-12 Defendant's allegations predicated on the ineffectiveness of plea counsel should have been discovered through the exercise of due diligence and raised in defendant's first PCR petition which was filed in 2008 R 3:22-12(a)(2)(B) Thus the one-year period for filing subsequent PCR petitions would run from 2008 pursuant to Rule 3:22-12(a)(2)(C) unless defendant demonstrated he could not have discovered "the factual predicate for the relief sought" in his subsequent petition "through the exercise of reasonable diligence" until after that date pursuant to Rule 3:22-12(a)(2)(B) He cannot Defendant did not file his second PCR petition until April 2010 and therefore it was untimely R 3:22-12(a)(2) The PCR judge correctly determined that defendant's PCR petition was time barred.