July 11, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
FERNANDO AZIANI-LARA, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 3, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-06-0808.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).
Before Judges Axelrad and Fuentes.
Defendant, Fernando Aziani-Lara, who is not a United States citizen, pled guilty in September 2009 to third-degree aggravated assault, N.J.S.A. 2C:12-1b(2), and in January 2010 he received a four-year probationary term. He did not file a direct appeal. He was subsequently arrested on a United States Department of Justice INS detainer and was ordered to be deported from the United States. In September 2010, defendant filed a pro se post-conviction relief (PCR) petition pro se, supplemented by assigned counsel. He argued, in part, that he was denied the effective assistance of trial counsel in negotiating the guilty plea and regarding the deportation consequences of the plea. Following oral argument, Judge Raymond Reddin, who had also been the judge who took defendant's plea and sentenced him, denied the PCR petition in a written opinion and order of May 27, 2011.
Defendant appeals, presenting the following arguments:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND DEFENDANT'S GUILTY PLEA VACATED BECAUSE THE CONVENIENCE TO TRIAL COUNSEL OF RESOLVING THE CASE BY AN UNNECESSARY PLEA BARGAIN WAS CONTRARY TO HIS FOURTEENTH AMENDMENT DUE PROCESS RESPONSIBILITY TO PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA BARGAINING PROCESS.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE TRIAL COUNSEL'S FAILURE TO ADVISE DEFENDANT OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
We find insufficient merit in these arguments to warrant extensive discussion and affirm substantially for the reasons stated by Judge Reddin in his comprehensive written opinion. R. 2:11-3(e)(2). The judge explained in detail why the record undermined defendant's claims that he was not advised of the victim's position about testifying prior to entering a guilty plea, that his plea was deficient, and that he was intentionally misled or not properly advised of the immigration consequences of the plea. Judge Reddin then properly analyzed the State v. Slater factors and concluded defendant presented an insufficient legal basis to withdraw his guilty plea. We add only the following comments.
During the plea colloquy, defendant, through a Spanish interpreter, stated that he had an argument with Waldi Garcia, one of his roommates, in the presence of other friends and, unprovoked, cut him on the arm with a knife, requiring Garcia to obtain medical treatment and stitches. The reports reflect that when police responded to the hospital, the victim and the eyewitnesses related what occurred, the box cutter was recovered from the scene and turned over to police, Garcia's bloody clothes were secured as evidence, and the hospital records reflected the seriousness of Garcia's injuries. Defendant had rejected the State's plea offer to second-degree aggravated assault with a recommended custodial sentence in the third-degree range, specifically, three years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The prosecutor ultimately amended the offer and agreed to accept a guilty plea to the amended charge of third-degree aggravated assault with a recommended sentence of non-custodial probation. She did this, she said, because Garcia had moved out of state and preferred not to return for a trial.
This was not a situation where the victim's whereabouts were unknown to the State or where he was uncooperative. Rather, as explained by the prosecutor at the plea hearing, the victim wished to proceed to trial because he was injured by defendant. After he moved out of state, however, he expressed the preference not to return here for a trial and was agreeable to the State's plea offer of non-custodial probation and no contact with him.
Clearly defense counsel did not sandbag defendant into accepting the plea for counsel's convenience. Rather, defendant received a significant benefit by the plea. As a practical matter, if defendant had chosen to go to trial, defendant potentially faced conviction of the second-degree offense based on the State producing the victim or, even without him, relying on the testimony of the eyewitnesses and other evidence.
In July 2009 in State v. Nuñez-Valdéz, 200 N.J. 129, 140-42 (2009), our Supreme Court held that an attorney who provides misinformation and misleading information to a defendant regarding the immigration consequences of his plea has rendered ineffective assistance. The gist of defendant's arguments is that his trial counsel did not clearly inform him that his guilty plea would result in his deportation, and therefore he misled him as to the immigration consequences.
Judge Reddin correctly rejected this claim, noting there was a significant colloquy regarding potential deportation consequences during the plea hearing, including reference to the newly-revised plea form expanding question seventeen. Defendant acknowledged that the immigration department "[is] going to look into the case[, ]" there are certain crimes that carry an automatic deportation, if this was one of those crimes he would be sent back, and even if not there was still a possibility immigration could send him back. At the conclusion of the plea hearing, Judge Reddin found defendant fully understood the plea offer and the sentencing ramifications, and pled guilty voluntarily. The judge explained:
He understands the ramification regarding his citizenship status or lack of citizenship status. He understands that if his offense for which he pled guilty is deemed by the immigration authorities to constitute an aggravated felony he will be subjected to deportation. He is, pursuant to the [revised] plea form, waiving his right to have a consultation with an immigration attorney or to seek the advice of such an attorney.
It is clear from the record that defendant was extensively advised of the consequences of his plea. Moreover, he presented no legal basis to justify withdrawal of his plea post-sentence. Accordingly, we discern no basis to second-guess the ruling of the PCR judge.