July 10, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
LUZ ZAMBRANO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 11, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-07-01688.
Joseph E. Krakora, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (David A. Malfitano, Assistant Prosecutor, of counsel and on the Brief).
Before Judges Parrillo and Messano.
Defendant Luz Zambrano appeals from an order of the Law Division denying her petition for post-conviction relief (PCR). We affirm.
After failing to complete the terms of the Pre-Trial Intervention (PTI) program to which she had been admitted, defendant was indicted and ultimately pled guilty to third-degree theft of moveable property, N.J.S.A. 2C:20-3. The offense involved using her employer's ATM card and pin-number to withdraw money from her employer's account in excess of $500 without her employer's consent. On December 6, 2002, defendant was sentenced to a term of non-custodial probation and ordered to pay the remainder of her restitution.
Defendant did not file a direct appeal of her judgment of conviction. Instead, over six years later, defendant filed an untimely PCR petition, in which she alleged that trial counsel provided ineffective assistance because he failed to explain the "consequences a guilty plea would have on [her] immigration status." In rejecting this claim and denying the relief without an evidentiary hearing, the PCR judge concluded that defendant knew her guilty plea could have immigration consequences, had been provided with an opportunity to discuss the issue with her attorney, and had stated under oath that she understood.
On appeal, we remanded "to permit the judge to consider the immigration consequences, if any, resulting from the defendant's guilty plea, and their implications in light of the holdings in Nunez-Valdez and Padilla." State v. Zambrano, No. A-0661-09 (App. Div. May 4, 2011). We also directed the PCR court to consider the timeliness of the petition under Rule 3:22-12.
On remand, the PCR judge waived the five-year time bar, but denied the application on substantive grounds. In doing so, the judge reviewed what had transpired at the plea hearing over which he had presided. Therein, the judge inquired whether defendant was an American citizen, to which defendant answered that she was not; that she was here on a Green Card. The following colloquy then took place:
Judge: Are you a citizen of this country?
Defendant: Resident to become a citizen.
Judge: You have a green card?
Judge: So Question No. 17 counts as checked off "not applicable" has to be answered in the affirmative. She has to initial this.
You understand that by being a resident and pleading guilty today, that could negate your resident status and you could be deported. You understand that?
Judge: Did you go over that with your attorney?
Defense Counsel: Your Honor, I apologize . . . . [T]he mistake is mine. When it said "natural" I thought it referred to her resident status. . . . I'm the one that confused it . . . .
When defendant indicated that she had not discussed the issue with her attorney beforehand, the judge provided her with that opportunity. After defense counsel indicated defendant had initialed the change to the plea form, the proceedings resumed.
Judge: Did you discuss . . . the fact that you could be deported? You may not be, but you could be, by virtue of the charge.
Defendant: Yes, I understand.
Judge: And despite knowing that, do you still wish to plead guilty?
Defendant: Yes, because I'm guilty.
After questioning defendant about the voluntariness of her guilty plea, the judge then asked:
Judge: In light of everything I said, you still wish to plead guilty to third-degree theft, pay back restitution . . . and a possibility of deportation to your country of origin, based on your resident status? That [is] what you want to do? You want to plead guilty, knowing all those things exist?
In making his finding as to the knowing and voluntary nature of the plea, the judge found in part:
[Judge]: In addition to that, she understands also the plea, because of her resident status, could result in her deportation.
Having reviewed the plea hearing, the PCR judge distinguished Nunez-Valdez by noting that defendant was not advised that there were no immigration consequences attendant to her plea and further, that the instant matter was "a far cry" from Padilla. Satisfied that defendant was adequately informed about the consequences of her plea, the PCR judge determined the failure to inform defendant that deportation was "definite" did not amount to ineffective assistance of counsel, and therefore denied defendant's petition.
On appeal, defendant argues that counsel was ineffective for providing affirmatively misleading advice or misadvice when first negotiating this plea agreement to a theft crime in violation of the standard required in recent Supreme Court decisions. We disagree.
It is axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, she is obliged to show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency, she 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); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); 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); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiency here clearly fails to meet either the performance or prejudice prong of the Strickland test.
At the time of defendant's 2002 guilty plea, it was not necessary to advise a defendant of the collateral consequences of that plea, including the possibility of deportation. State v. Heitzman, 107 N.J. 603, 604 (1987); State v. Wilkerson, 321 N.J.Super. 219, 224-26 (App. Div.), certif. denied, 162 N.J. 128 (1999); State v. Garcia, 320 N.J.Super. 332, 336-37 (App. Div. 1999); State v. Chung, 210 N.J.Super. 427, 431 (App. Div. 1986); State v. Reid, 148 N.J.Super. 263, 266 (App. Div.), certif. denied, 75 N.J. 520 (1977).
In State v. Nunez-Valdez, 200 N.J. 129, 143 (2009), our State Supreme Court held that 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." The Court's focus was on "false or misleading information" from counsel as establishing the violation of the defendant's constitutional rights. Id. at 138-40; see also State v. Brewster, 429 N.J.Super. 387, 392 (App. Div. 2013).
Later, in Padilla v. Kentucky, 559 U.S. 356, , 130 S.Ct. 1473, 1483, 1486, 176 L.Ed.2d 284, 295-96, 299 (2010), the United States Supreme Court held that counsel's failure to give any advice whatsoever about deportation might also be deficient performance in violation of a defendant's constitutional rights. The Court also added that counsel's constitutional duty is not limited to avoiding incorrect advice. Counsel has an affirmative duty to inform a defendant when a guilty plea will result in deportation, at least where the relevant law pertaining to mandatory deportation is "succinct, clear, and explicit." Id. at __, 130 S.Ct. at 1483, 176 L.Ed.2d at 295.
In State v. Gaitan, 209 N.J. 339, 373-74 (2012), cert. denied, U.S., 133 S.Ct. 1454, 185 L.Ed.2d 361 (2013), our Supreme Court decided that Padilla does not apply retroactively to convictions beyond direct appeal. The Court stated: "[W]ell prior to our holding in Nunez-Valdez, this Court had taken the position 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." Id. at 361. The Court then held that Padilla's imposition of an affirmative duty to advise on deportation consequences is a "new" constitutional rule that does not apply to defendants who have exhausted their direct appeals. Id. at 373. But the Court also held that its own 2009 decision in Nunez-Valdez, in contrast to Padilla, was not a new rule of constitutional law. Id. at 373-74. Therefore, the Court's holding in Nunez-Valdez concerning claims of counsel's wrong advice about deportation consequences is applicable on collateral review to convictions that became final before that case was decided. Id. at 375.
Subsequently, the United States Supreme Court in Chaidez v. United States, __U.S. ___, ___, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149, 154 (2013), ruled that Padilla is not retroactively applicable to convictions beyond direct review.
Thus, Padilla's "new" constitutional rule does not apply to defendant's 2002 conviction and, as such, Nunez-Valdez governs resolution of this matter. So measured, we are satisfied that defendant was not affirmatively misled as to the deportation consequences of her guilty plea.
Unlike Nunez-Valdez, or even Padilla, where the attorneys misrepresented to their clients that there would be no immigration consequences, here the record clearly establishes that defendant was properly apprised of the likelihood of deportation. In fact, the trial judge repeatedly advised defendant that she faced the possibility of deportation as a result of her guilty plea. Further, the fact that defendant initially responded to Question 17 "[N/A]" but subsequently changed her answer to "[YES], " evidences that her attorney discussed the plea as it pertained to her immigration status and that defendant made a conscious decision to change the answer, when afforded the opportunity by the court. Additionally, defendant's attorney advised her of the immigration consequences of the plea as it was being entered. Thus, conversations regarding defendant's deportation occurred both on the record with the plea judge and counsel, and off the record with counsel. Because Gaitan and Padilla do not apply to the facts at hand, and because unlike Nunez-Valdez, defendant was not made to understand there would be no deportation consequences to her guilty plea, we discern no counsel deficiency here.
Defendant also contends counsel was ineffective for failing to negotiate a plea bargain to a crime that would not carry the risk of deportation. It is unclear, however, what, if any, crime of theft defendant could have pled guilty to that would have not resulted in deportation. Defendant also fails to provide any evidence that the State was inclined to offer or accept a guilty plea to a non-deportable offense. Instead, counsel seemingly procured the best deal defendant could receive: a non-custodial sentence with restitution to the victim.
Having failed to demonstrate any deficiency in attorney performance, defendant cannot demonstrate any resultant prejudice. As a result, her PCR petition was properly denied. Moreover, because defendant knew at the time she entered her guilty plea of the deportation consequence, she has also failed to show that her guilty plea was other than knowingly and voluntarily entered. Accordingly, there is no basis in this record to warrant PCR relief or to allow withdrawal of that plea.