July 16, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
SEAN MILSON, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2013
On appeal from the Superior Court of New Jersey,  Law Division, Bergen County, Indictment No. 90-01-0439.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Simonelli and Accurso.
Defendant Sean Milson appeals from the February 2, 2011 Law Division order, which denied his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm, but for reasons other than those expressed by the PCR judge. Aquilio v. Continental Ins. Co. of N.J., 310 N.J.Super. 558, 561 (App. Div. 1998).
A grand jury indicted defendant for second-degree possession with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count one); third-degree possession of a CDS within 1, 000 feet of a school zone, N.J.S.A. 2C:35-7 (count two); and third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count three). On August 27, 1990, defendant pled guilty to count one in exchange for the State's agreement to recommend that defendant would be sentenced as a third-degree offender to a maximum of four years' imprisonment.
Defendant signed the plea forms and answered "Yes" to Question 17, which asked whether he understood that if he was not a United States citizen or national he may be deported by virtue of his guilty plea. At the plea hearing on August 27, 1990, defendant testified under oath that he was not a United States citizen and he understood that because he pled guilty to a CDS charge, an action could be brought to deport him. Defendant then gave a factual basis for his plea, which he does not challenge on appeal. The trial judge determined that defendant entered the plea voluntarily. On October 26, 1990, the judge sentenced defendant in accordance with the plea agreement to a four-year term of imprisonment. Defendant did not appeal.
Nearly twenty years after sentencing, on April 29, 2010, defendant filed a pro se PCR petition. In defendant's supporting affidavit, he asserted that trial counsel rendered ineffective assistance because counsel "was completely unaware" of and "never mentioned" the mandatory deportation consequences of his plea.
At the evidentiary hearing, defendant testified that trial counsel never told him he definitely would be deported. He then added for the first time that counsel misinformed him that he would not be deported if he received a sentence of less than five years.
Trial counsel testified that in 1990, it was his practice to read each question on the plea form to a client, listen to the client's response, and then circle yes or no on the plea form. If the client said he or she was not a United States citizen, he advised the client that he or she may be deported as a result of pleading guilty to a felony. Counsel denied he advised defendant that he would not be deported if he received a sentence of less than five years because "[t]hat was not the law" in 1990.
The PCR judge found that trial counsel did not misinform defendant about the deportation consequences of his plea, but rather, simply failed to advise him of the mandatory deportation consequences. Thus, the judge concluded, incorrectly, that because Padilla v. Kentucky, 559 U.S. 356, , 130 S.Ct. 1473, 1482, 176 L.Ed.2d 284, 294 (2010) applied retroactively, defendant satisfied the first prong set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Nevertheless, the judge denied the petition, finding that defendant did not satisfy the second Strickland prong because he failed to demonstrate he suffered prejudice at the time of the plea and would have gone to trial and risked a greater term of imprisonment. This appeal followed.
On appeal, defendant raises the following contentions:
DEFENDANT WAS DEPRIVED OF HIS FEDERAL AND STATE RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
DEFENDANT'S GUILTY PLEA WAS NOT VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY ENTERED BECAUSE IT WAS ENTERED WITHOUT DEFENDANT BEING INFORMED BY THE COURT THAT  ITS ENTRY REQUIRED HIS DEPORTATION; THE ACCEPTANCE AND ENTRY OF THE PLEA THUS VIOLATED OUR COURT RULES, DEFENDANT'S RIGHT TO TRIAL BY JURY AND FUNDAMENTAL FAIRNESS.
THE TRIAL COURT'S DETERMINATION THAT THERE WERE NO PROCEDURAL BARS TO [PCR] WAS SUPPORTED BY THE RECORD AND MUST BE AFFIRMED.
Our Supreme Court has established the standard of review in PCR cases:
Our standard of review is necessarily deferential to a PCR court's factual findings based on its review of live witness testimony. In such circumstances we will uphold the PCR court's findings that are supported by sufficient credible evidence in the record. An appellate court's reading of a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness he [or she] has observed firsthand. Last, we need not defer to a PCR court's interpretation of the law; a legal conclusion is reviewed de novo.
[State v. Nash, 212 N.J. 518, 540-41 (2013).]
"'[T]o set aside a guilty plea based on ineffective assistance of counsel, 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) (second alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (internal quotation marks omitted); see also State v. Parker, 212 N.J. 269, 279 (2012).
The Supreme Court of the United States has held that defense attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea. Padilla, supra, 559 U.S. at __, 130 S.Ct. at 1482, 176 L.Ed.2d at 294. After the judge's decision in this case, however, the Court held that Padilla does not apply retroactively, Chaidez v. United States, __U.S.__, __, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149, 154 (2013), and our Supreme Court held that Padilla is a new rule to be applied prospectively only. State v. Gaitan, 209 N.J. 339, 371-72 (2012), certif. denied, __U.S.__, __ 133 S.Ct. 1454, , 185 L.Ed.2d 361 (2013); see also State v. Santos, 210 N.J. 129, 143 (2012).
Here, defendant pled guilty twenty years before Padilla. Therefore, his "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 (citation omitted).
A limited exception to this rule arises when defense counsel provided affirmatively misleading advice about the immigration consequences of a guilty plea. See Nuñez-Valdéz, supra, 200 N.J. at 139-43 (where defense counsel informed the defendant there would be no immigration consequences arising from his plea); see also Santos, supra, 210 N.J. at 143. That exception is inapplicable here because the PCR judge did not find that trial counsel misinformed defendant there would be no immigration consequences arising from his plea; rather, the judge found that counsel did not inform defendant at all that deportation was mandatory. Accordingly, defendant cannot establish that trial counsel rendered ineffective assistance in failing to inform him of the mandatory immigration consequences of his plea. Gaitan, supra, 209 N.J. at 374.