July 25, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
MANUEL H. MADES, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 29, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-10-1325.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief; Christopher R. Mount, on the brief).
Before Judges Alvarez and Waugh.
Defendant Manuel Mades appeals the December 3, 2010 Law Division order denying him post-conviction relief (PCR) based on a claim of ineffective assistance of counsel. We affirm.
Defendant, indicted for third-degree receiving stolen property, N.J.S.A. 2C:20-7 and 2C:20-2(a) (count one); fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2) (count two); fourth-degree hindering, N.J.S.A. 2C:29-3(b)(4) (count three); and third-degree resisting arrest by use of force or violence, N.J.S.A. 2C:29-2(a)(3) (count four), entered a guilty plea to receiving stolen property and third-degree resisting. Pursuant to the negotiated plea agreement, on May 16, 2008, he was sentenced to three years probation. Defendant did not appeal his sentence. On June 7, 2010, defendant filed a pro se petition for post-conviction relief. The matter was argued on December 3, 2010, after defendant had been deported to the Dominican Republic.
The judge denied the petition based on an analysis with which we do not agree — namely, that because defendant was already outside the country at the time of oral argument, his petition could not be entertained as he could not be brought back into the country for an evidentiary hearing. We agree with the outcome, however, and that suffices for purposes of this affirmance. See Serrano v. Serrano, 367 N.J.Super. 450, 461 (App. Div. 2004) (citing Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968)), rev'd on other grounds, 183 N.J. 508 (2005).
When the plea was entered, defendant acknowledged the possibility of deportation:
Q Okay. Are you a citizen of the United States?
A I'm a resident. Permanent resident.
Q Where were you born? A Santo Domingo.
Q Okay. So you understand it is possible, by reason of your having committed a crime in the United States, that you could be deported? I don't know if you will or not, it's up to the Immigration Department, but you could be deported, do you understand that, by admitting to having committed these crimes?
Q Now, . . . do you have any question at all about any part of your plea agreement? Don't hesitate to ask?
Q Are you pleading guilty voluntarily of your own free will?
Q Because you believe it's in your best interests?
Q And because you did in fact commit the crimes as you just outlined them?
Q And you believe it's in your best interests, despite the fact that there's now a chance that you could be deported if Immigration thinks that it's appropriate to do that?
Q Because you're not a citizen, you understand that?
Q Did you have enough time to talk to me about your case and the --
In addition to engaging in a colloquy with the court regarding the possibility of deportation, defendant circled yes in answer to question 17 on the plea form he signed which asked the following:
17. 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?
On appeal, defendant raises these points:
THE FAILURE OF TRIAL COUNSEL TO ADVISE DEFENDANT THAT AS A RESULT OF HIS PLEA AGREEMENT, HE WOULD BE DEPORTED DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
THE FAILURE OF TRIAL COUNSEL AND THE TRIAL COURT TO EXPLAIN THE IMMIGRATION CONSEQUENCES OF DEFENDANT'S GUILTY PLEA CAUSED DEFENDANT TO LACK KNOWLEDGE AND UNDERSTANDING OF THE PLEA AGREEMENT, RENDERING HIS PLEA DEFECTIVE, BECAUSE HE NEVER KNOWINGLY WAIVED HIS RIGHT TO A JURY TRIAL.
THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
A defendant must establish two elements to prove ineffective assistance of counsel: first, that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). An attorney's performance is deficient when he or she makes "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must demonstrate that counsel's deficiency so prejudiced the defense that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A reasonable probability is one that undermines confidence in the outcome. Ibid. New Jersey has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987).
There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. To rebut this presumption, a defendant must prove counsel's actions did not amount to "sound trial strategy." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83, 93 (1955)) (internal quotation marks omitted). "[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
"[W]hen counsel provides false or affirmatively misleading advice about the deportation consequences of a guilty plea, and the defendant demonstrates that he would not have pled guilty if he had been provided with accurate information, an ineffective assistance of counsel claim has been established." State v. Gaitan, 209 N.J. 339, 351 (2012) (citing State v. Nuñez-Valdéz, 200 N.J. 129, 131 (2009)), cert. denied, ___U.S. ___, 133 S.Ct. 1454, 185 L.Ed.2d 361 (2013).
In 2007, however, defense counsel was not required to inform defendant that he faced a certainty of deportation as a result of the conviction. See Chaidez v. United States, ___U.S. ___, 133 S.Ct. 1103, 1113, 185 L.Ed.2d 149, 162 (2013); Gaitan, supra, 209 N.J. at 380. Trial counsel was only required to avoid affirmatively misinforming a defendant regarding immigration consequences resulting from a plea. Chaidez, supra, ___U.S. at ___, 133 S.Ct. at 1113, 185 L.Ed.2d at 162 (holding that obligation to provide advice on the immigration consequences of a plea established in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), was a new rule that did not apply retroactively); see Gaitan, supra, 209 N.J. at 373.
Thus it is clear that when defendant entered his plea, counsel was only required to advise him about the possibility of deportation. See Nuñez-Valdéz, supra, 200 N.J. at 140-42. Not only did counsel inform his client of that possibility, defendant acknowledged the information on the plea form, but the court touched upon the issue twice when eliciting the factual basis necessary for the entry of a guilty plea. Counsel had no separate obligation to look to federal law in order to properly advise his client. So long as defendant was told of the possibility of deportation, that sufficed.
Nor do we agree that a manifest injustice results from the application of our Supreme Court's decision in Gaitan concluding that the holding in Padilla is not retroactive. Since defendant's attorney did all he was required to do, his representation was not ineffective.
Defendant also contends that the failure of his attorney and the court to explain that deportation was a certainty means he did not knowingly and intelligently waive his right to a jury trial. This is simply another way of stating that he should have been advised that the entry of a guilty plea would result in his deportation. Established precedent tells us his waiver of his right to a trial was nonetheless knowing and voluntary.
Since we find defendant did not demonstrate a prima facie case of ineffective assistance of counsel, no evidentiary earing was required. R. 3:22-10(b); State v. Preciose, 129 .J. 451, 462 (1992).