July 11, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
FLORENCIO PEREZ, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 4, 2013
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-06-2044.
Vincent P. Sarubbi argued the cause for appellant (Archer & Greiner, P.C., attorneys; Mr. Sarubbi and William E. Viss, on the brief).
Jason Magid, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Mr. Magid, of counsel and on the brief).
Before Messano and Ostrer, Judges
Defendant Florencio Perez appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. The undisputed record reveals that defendant was born in Mexico in 1970 and illegally immigrated to the United States in 1989. In a statement provided to the Gloucester Township police after his arrest, defendant admitted that, on January 2, 2008, he disciplined his stepson and son, ages seven and four respectively, with a belt. On June 16, 2008, defendant was indicted by the Camden County grand jury and charged with two counts of fourth-degree cruelty and neglect of a child. N.J.S.A. 9:6-1 and -3.
On September 23, 2008, represented by trial counsel, defendant appeared before the Law Division judge and entered a guilty plea to count one of the indictment, which was amended to include both victims. In colloquy, the prosecutor agreed to amend the indictment to state that defendant was accused of "leaving the children unsupervised for an extended period of time." In exchange for defendant's guilty plea, the State agreed to recommend a one-year term of non-custodial probation with the condition that defendant comply with all orders of the Division of Youth and Family Services (the Division). The State agreed to dismiss count two of the indictment.
While under oath, defendant acknowledged that he understood his rights, was pleading guilty voluntarily and without any threats, coercion or pressure, and had truthfully answered all the questions that were contained on the plea form. In providing a factual basis for his guilty plea, defendant admitted that he was responsible for the supervision of his stepson and son, left both children alone in his residence for approximately two to three hours and, given the children's age, improperly exposed them to danger.
The following colloquy occurred between the judge and defendant:
Q: You do know that as a result of this there could be ICE implications? I know that you're not a citizen of the United States; correct?
A: Not yet. I'm working on it though.
Q: Okay. But you do know there might be an [e]ffect, could be --
Q: -- subject to deportation? We don't know; --
Q: -- correct?
A: Yes. Correct.
Q: And that's been explained to you by your lawyer and that's what is written out in these forms; right?
Q: . . . although you can never be sure, at least you have a good faith belief that this should not subject you to ICE implications; correct?
Q: But you know that that's not a guarantee?
Q: Okay. Your lawyer has no control over what . . . ICE is going to do; right?
Q: He can only do the best job he can to try to find out how typical cases like this are handled; right?
Question 17 on the plea form 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 in the affirmative. On December 12, 2008, defendant was sentenced in accordance with the plea agreement to a probationary term of one year.
In August 2009, defendant was arrested by ICE and designated for removal. He utilized the services of an immigration lawyer, Sigang Li, who had represented defendant since August 2008.
On May 31, 2011, PCR counsel filed a petition on defendant's behalf alleging ineffective assistance of trial counsel. In his affidavit in support of the petition, defendant averred that he met trial counsel on the day he pled guilty. Trial counsel had already negotiated the plea with the prosecutor and assured defendant that "to avoid deportation, they would change the factual basis of the plea . . . . [Trial counsel] claimed that this change would make it so that [defendant] would not be deported." Trial counsel told defendant he should "just say yes to everything so that [he] would not get into trouble with immigration . . . ."
Defendant further stated that he "agreed to enter the guilty plea based on [trial counsel's] assurance that the plea would not adversely affect [defendant's] immigration status, " and trial counsel advised defendant he would "certainly be found guilty of all of the charges" if he proceeded to trial. Defendant further stated that he would not have entered his guilty plea if he knew "that the plea would result in certain deportation . . . ." Defendant also claimed that trial counsel never advised him of the Pretrial Intervention (PTI) program or his eligibility for same.
The record also includes a certification from trial counsel, dated July 8, 2011, stating that he did not have defendant apply to PTI because defendant did not possess a social security card and "the charges were of violent nature." Trial counsel stated that he "knew from prior experience" these "two factors" "would lead to the rejection" of any PTI application. Trial counsel further claimed that "[a]s part of the negotiated plea, " sentencing was postponed until defendant had "the opportunity to review same with his immigration attorney." Trial counsel advised defendant that he "was not an immigration attorney, " and, when defendant supplied him with Li's name, trial counsel "forwarded information" regarding the plea. Trial counsel certified that he, "frankly, could not tell [defendant] if this plea would in fact have a direct impact on his immigration case."
Li filed an affidavit dated May 5, 2011, stating that he represented defendant "with his immigration matter from August 2008 until September 2010." Defendant told Li about the criminal charges in September 2008, and Li contacted trial counsel and spoke to him "on numerous occasions." Li advised trial counsel:
any guilty plea involving a crime of child abuse or/and . . . a crime of child neglect would render [defendant] guilty of a 'crime involving moral turpitude[.'] If found guilty of a crime involving moral turpitude, [defendant] would be found statutorily ineligible for cancellation of removal from the United States.
According to Li, trial counsel advised him that defendant "would have been a prime candidate for . . . PTI . . . but given [defendant's] immigration status, he [was] ineligible since New Jersey law requires a person applying to . . . PTI to be a [United States] citizen and in possession of a valid social security number." Attached to Li's affidavit was a letter from trial counsel, dated November 14, 2008, stating this opinion and enclosing the "discovery package" from the criminal case.
In opposition, the State furnished the certification of assistant prosecutor Dana R. Petrone, dated June 16, 2011. Petrone reviewed the State's allegations and opined that it was "unlikely" defendant would have been considered for PTI because "[he] did not impose reasonable and necessary corporal punishment" on the children, and his "status as an illegal alien for many years indicates that defendant has disregard for the law." She further noted that defendant had "apparently obtained a fraudulent Social Security number, or lied to the police about his Social Security number, because he provided a Social Security number to the police during questioning." Noting defendant, "like all defendants, would have been eligible to apply for PTI, " Petrone opined that "[n]othing contained in the discovery . . . suggested anything that would have made [defendant] appropriate for admission."
On July 14, 2011, the PCR judge conducted a hearing on the petition. On July 27, the judge issued a supplemental written opinion explaining his oral rulings. The judge set forth the then-current status of defendant's administrative immigration appeal:
[Defendant] is an illegal immigrant from Mexico, having entered the United States in 1989. Following his arrest on the present charges, he was ordered removed from the United States. The ground for removal was that he was illegally present in the United States without being admitted or paroled; [defendant] applied for "cancellation" of this removal. By a decision dated August 12, 2009, the Immigration Court denied [defendant's] application because his conviction constituted a "crime involving moral turpitude." [Defendant] filed an appeal with the Board of Immigration Appeals [BIA] that was dismissed upon a finding that his crime was one involving moral turpitude.
. . . According to [defendant's] immigration attorney, [defendant] filed a motion to reopen his immigration case in order for the BIA to reconsider its decision, which was denied. Additionally, [defendant] intends to file an appeal of the BIA decision with the United States Court of Appeals for the Third Circuit.
The judge concluded that defendant's claims of ineffective assistance of counsel failed to satisfy both prongs of the Strickland/Fritz test.
Regarding trial counsel's failure to have defendant apply for PTI, the judge concluded it was reasonable to assume that "the nature of the offenses coupled with defendant's citizenship status would lead to . . . rejection . . . ." The judge further concluded that even if trial counsel's performance was deficient in this regard, defendant failed to demonstrate prejudice. Based upon Petrone's certification as "the Assistant Prosecutor responsible for making decisions with respect to admissions to PTI, " it was unlikely defendant would have been admitted to the program.
The judge also denied defendant's claim "that he was not advised of the immigration consequences of his plea, " noting that defendant acknowledged "he may be deported" as a result of his guilty plea. Further, the judge noted "the deportation consequences of [defendant's] guilty plea were not clear at the time of sentencing, nor [are they] clear today." Lastly, the judge rejected any claim of ineffective assistance based upon "trial counsel's advice regard[ing] success at trial . . . ."
However, the judge granted defendant's request to amend the judgment of conviction. Specifically, the judge ordered that the indictment and judgment of conviction be amended to reflect that defendant only pled guilty to child neglect. Further, the judge amended his "statement of reasons" in support of the sentence to reflect "the gravamen of the offense [was] that . . . defendant left his children unattended for an extended period of time."
On August 17, 2011, defendant moved for reconsideration of the order denying his PCR petition. On August 24, 2011, the judge denied the motion, finding defendant failed to "set forth any new evidence regarding the matter(s) which counsel believes the court has overlooked or as to which it has erred." This appeal followed.
Defendant raises the following arguments for our consideration:
I. MR. PEREZ WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL CONCERNING HIS ELIGIBILITY FOR PTI (RAISED BELOW)
A. The First Prong Of Strickland/Fritz Was Met.
B. The Second Prong Of Strickland/Fritz Was Met.
II. MR. PEREZ RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA (RAISED BELOW)
III. MR. PEREZ WAS NOT PROPERLY INFORMED DURING THE PLEA PROCEDURE OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA (RAISED BELOW)
IV. MR. PEREZ RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL CONCERNING THE LIKELIHOOD OF SUCCESS AT TRIAL (RAISED BELOW)
V. IN THE EVENT THE TRIAL COURT'S ORDER IS AFFIRMED, THE JUDGMENT OF CONVICTION SHOULD BE STAYED PENDING MR. PEREZ'S PETITION FOR CERTIFICATION AND WRIT OF HABEAS CORPUS.
We have considered these arguments in light of the record and applicable legal standards. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693, and adopted by our Supreme Court in Fritz, supra, 105 N.J. at 58. First, he must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). In demonstrating that counsel's performance was deficient, a defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Ibid. (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694).
Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S.Ct. at 2066-67, 80 L.Ed.2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. To justify relief after a guilty plea, a defendant must satisfy a modified standard:
When a guilty plea is part of the equation, . . . "a defendant must show that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases' and (ii) 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'"
[State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).]
"A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief . . . ." R. 3:22-10(b). "To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Russo, 333
N.J.Super. 119, 138 (App. Div. 2000) (citations and emphasis omitted); see also R. 3:22-10(b) ("To establish a prima facie case, defendant must demonstrate a reasonable likelihood that his or her claim, viewing the facts alleged in the light most favorable to the defendant, will ultimately succeed on the merits."). The court "shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory or speculative." R. 3:22-10(e)(2); see also State v. Cummings, 321
N.J.Super. 154, 170 (App. Div.) ("[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel.") (emphasis omitted), certif. denied, 162 N.J. 199 (1999). It remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992).
Defendant claims that counsel was ineffective for failing to have him apply to PTI. While we might agree that, in this regard, trial counsel's performance was deficient, we agree with the PCR judge that defendant failed to demonstrate a reasonable probability of success on the merits, and, therefore, no evidentiary hearing was required before denying the petition on this issue.
"The PTI Guidelines explicitly provide that all defendants must be permitted to apply, and the Criminal Division Manager must consider the merits of the application." State v. Green, 407
N.J.Super. 95, 98 (App. Div.), remanded, 200 N.J. 471 (2009), aff'd, 413
N.J.Super. 556 (App. Div. 2010)). However, "[a]dmission [into PTI] requires a positive recommendation from the PTI director and the consent of the prosecutor." State v. Negran, 178 N.J. 73, 80 (2003) (citing State v. Nwobu, 139 N.J. 236, 246 (1995)). And, while "the prosecutor's views do not always prevail, " Green, supra, 407
N.J.Super. at 99 n.1, "[a] '[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his admission into PTI.'" State v. Mosner, 407
N.J.Super. 40, 55 (App. Div. 2009) (quoting State v. Watkins, 193 N.J. 507, 520 (2008)) (second alteration in original). "In order to overturn a prosecutor's rejection, a defendant must clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion." Watkins, supra, 193 N.J. at 520 (citations and quotation marks omitted).
"In making a PTI determination, the prosecutor must assess a defendant's 'amenability to correction' and potential 'responsiveness to rehabilitation.'" Ibid. (quoting N.J.S.A. 2C:43-12b). "Such assessments are individualized and are dependent on a host of factors including the details of the case, defendant's motives, age, past criminal record, standing in the community, and employment performance, to name a few." Ibid. (citing N.J.S.A. 2C:43-12e).
When the crime charged is "deliberately committed with violence or threat of violence against another person . . . the defendant's application should generally be rejected." R. 3:28, Guideline 3(i). Despite defendant's factual basis when he pled guilty, the prosecutor would have been entitled to base her decision upon defendant's confession, in which he admitted striking his children with his belt in order to make them behave. We have also held that a defendant's illegal immigration status was a relevant factor which, together with other relevant factors, supported the prosecutor's decision to reject a PTI application. State v. Liviaz, 389
N.J.Super. 401, 403 (App. Div.), certif. denied, 190 N.J. 392 (2007).
We accord defendant the favorable evidence and inferences in the record on this issue. R. 3:22-10(b). We therefore accept that, according to Li and the letter attached to his certification, trial counsel believed defendant was ineligible for PTI solely because he was in this country illegally. If that was the basis for the decision not to have defendant apply to the program, it evidenced deficient performance.
We further assume that had defendant applied, his application would have been supported by the facts and documents contained in his PCR petition, specifically, a favorable letter from his employer, demonstrated compliance with the Division's requirements and a court order awarding him custody of his four children. However, there is no reason to assume the prosecutor would not have rejected defendant's application; indeed, based upon Petrone's certification, the opposite is true.
Therefore, to establish prejudice occasioned by counsel's deficient performance -- i.e., a reasonable probability of success on this issue -- defendant needed to demonstrate that the prosecutor's rejection would be overturned on appeal, either by the Law Division judge or this court. Given "[t]he extreme deference which a prosecutor's decision is entitled to" on review, Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265
N.J.Super. 106, 111-12 (App. Div. 1993)), we conclude defendant did not establish a prima facie case of ineffective assistance in this regard. We affirm dismissal of the PCR petition as to this issue.
We reach a different result regarding the claim that trial counsel provided ineffective assistance in rendering advice regarding the effect of the guilty plea on defendant's immigration status. Once again, we accord defendant all the favorable evidence and inferences in the record.
Defendant certified that trial counsel assured him that he would not be deported based upon the amendments made to the indictment and defendant's plea to child neglect, as opposed to child abuse. He also claimed that trial counsel instructed him to just answer "yes" to all the judge's questions.
Trial counsel certified somewhat to the contrary, stating that he "frankly, could not tell [defendant] if this plea would in fact have a direct impact on his immigration case." Li, however, stated that he spoke to trial counsel on numerous occasions and specifically advised trial counsel that "any guilty plea involving a crime of child abuse or/and . . . a crime of child neglect would render [defendant] guilty of a 'crime involving moral turpitude'" and make defendant "ineligible for cancellation of removal from the United States."
We have held that advising a client as to the possibility of deportation, even if deportation was probable, not necessarily deficient legal advice given the prevailing professional standards and the state of immigration law at the time. State v. Brewster, 429
N.J.Super. 387, 397 (App. Div. 2013) (citing Nuñez-Valdéz, supra, 200 N.J. at 138, 143). The transcript from the plea proceedings makes it clear that defendant was fully advised that his guilty plea might subject him to deportation consequences. However, as the Court made clear in Nuñez-Valdéz, supra, 200 N.J. at 140-43, counsel affords ineffective assistance when he misinforms a defendant, or provides misleading advice, regarding the deportation consequences of a guilty plea.
Here, on the record provided, defendant has demonstrated a reasonable probability of success such that an evidentiary hearing is warranted. Li, an immigration attorney representing defendant, told trial counsel that defendant would suffer adverse consequences if he pled guilty to either child abuse or neglect. Clearly, trial counsel was charged with this knowledge. As a result, advising defendant that he would suffer no adverse immigration consequences (as defendant claims) or even advising defendant that the guilty plea may or may not adversely affect his immigration situation (as trial counsel implies in his certification and as the judge explicitly explained to defendant in court) establishes prima facie evidence that counsel provided "misleading or false information about immigration consequences" Nuñez-Valdéz supra 200 N.J. at 142.
We therefore reverse the denial of defendant's petition on this particular issue and remand the matter to the trial judge for an evidentiary hearing on defendant's claim of ineffective assistance of counsel We express no particular opinion on the ultimate merits of defendant's application
Reversed and remanded We do not retain jurisdiction