July 29, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ROD MCDONALD, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2012
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 02-09-1944.
Meehan & Quirk, LLC, attorneys for appellant (William Quirk, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
Before Judges Fasciale and Maven.
Defendant Rod McDonald appeals the Law Division order dated March 11, 2011, denying him post-conviction relief (PCR). We affirm.
At the time of his guilty plea, defendant was twenty-one years old and an illegal alien who came to the United States in 1990, at age nine with his parents. He is a native of Trinidad.
The facts as adduced from the record indicate that on December 3, 2002, defendant pled guilty to count three of the indictment, third-degree possession of a controlled dangerous substance (CDS) with intent to distribute within 1000 feet of a school, contrary to N.J.S.A. 2C:35-7. Defendant was sentenced in September 2003 to five years of probation, with long-term inpatient drug treatment. Defendant did not appeal, nor did he file a PCR motion during the five-year statutory period.
Defendant subsequently violated the terms of his special probation on numerous occasions. On June 10 2010, Immigration and Customs Enforcement (ICE) officers arrested and detained defendant, pending immigration removal proceeding due to the drug conviction.
Defendant, through counsel, filed a petition for PCR on October 8, 2010, seeking to set aside his guilty plea and sentence due to assertions of ineffective assistance of counsel for failing to advise him of the deportation consequences resulting from his guilty plea. Defendant argued that the plea was not entered knowingly and voluntarily due to the ineffective assistance of counsel. Alternatively, he contended that the failure to file a timely petition for PCR was not due to neglect.
Following oral argument, the Honorable Lourdes I. Santiago, J.S.C., issued an oral and written opinion. First, the judge considered the timeliness of the petition. The court noted that defendant was sentenced on September 26, 2003 and the judgment of conviction was entered on October 2, 2003. The PCR petition was filed on October 8, 2010, more than seven years later, outside the time prescribed under Rule 3:22-12. The judge explained that "[t]he five-year time period commences when the judgment of conviction is entered and is not stayed nor tolled by any appellate or other review proceedings."
See State v. Dugan, 289 N.J.Super. 15, 19 (App. Div.), certif. denied, 145 N.J. 373 (1986). The judge found that defendant had not presented any arguments for "exceptional circumstances" to support relaxing the time bar rule.
See State v. Afanador, 151 N.J. 41, 52 (1997). Ultimately, the court found that the petition was time barred, having been filed beyond five years of the conviction.
Next, the court considered the merits of the petition, particularly defendant's claim that his trial counsel had not advised him as to the collateral consequences of his plea prior to entering into the agreement. Counsel argued that trial counsel was dilatory in not inquiring further into defendant's immigration status given that the pre-sentence investigation report indicated in several places that defendant was born in Trinidad. The State countered that defendant answered "N/A" to Question 17 on the plea form that 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?" Also, during the plea hearing defendant testified to the court, under oath, that he was a United States citizen. Counsel retorted that, notwithstanding defendant's answer to Question 17 and his comments to the court, had trial counsel questioned defendant further, his true immigration status would have been revealed. The judge rejected counsel's argument that defendant may have believed that since his parents had become United States citizens, he, too, became a United States citizen, finding it implausible that defendant, at eighteen years old when his parents were naturalized, would not be aware that he had aged out and had to submit his own application for citizenship.
In denying PCR relief, Judge Santiago adopted the State's position and stated on the record that:
[T]he basis of my decision is that the defendant's own indication to the [c]ourt that he was a United States citizen imposed no obligation on the [c]ourt to go any further to consider immigration consequences. . . . [T]he argument that the [c]ourt should have pursued more inquiry in this case is misguided. So for reasons set forth [in the written opinion] . . ., I find no authority to impose such an . . . obligation on the [c]ourt or counsel.
So I found that nothing was done wrong and I . . . believe that the representation made by the defendant that he believed that he was a U.S. citizen and claimed that he was a citizen is what led the [c]ourt to do what [it] had to do in that case . . . .
In her written opinion, Judge Santiago expounded on her oral decision, distinguishing
State v. Nuñez-Valdéz , 200 N.J. 129, 143 (2009), and Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), as inapplicable. The court wrote:
[Defendant] makes absolutely no allegations of material misinformation received. . . . [T]here are no indications of affirmative misrepresentations or improper legal advice. In fact, there was no reason to advise [defendant] of [i]mmigration consequences because the [defendant] indicated that he was a citizen of the United States. The case at bar is distinct from a case involving someone who is a known non-citizen at the time of the plea. Thus, this [c]ourt finds S tate v. Nu[ñ]ez-Vald[é]z to be distinguishable from the case at bar. This [c]ourt finds that there was no material misinformation given, as was the case in Nu[ñ]ez-Vald[é]z.
Based on the foregoing, the court concluded that defendant had not satisfied the first prong of the Strickland analysis, which requires a demonstration that counsel's performance was objectively deficient.
Strickland v. Washington , 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Next, the court concluded that defendant failed to satisfy the second prong of the analysis — that there is a reasonable probability that but for counsel's errors he would not have pled guilty. Id . at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Here, the court found that defendant failed to show that there was reasonable probability that he would not have pleaded guilty and rejected the offer of a special probation term of five years, when faced with the potential of ten years in state prison on the second-degree charge of possession with intent to distribute within 500 feet of public housing. This appeal followed. On appeal, defendant raises the following claims:
I. THE APPLICATION FOR [PCR] SHOULD NOT BE TIME BARRED BECAUSE THE DISCOVERY OF THE PCR ISSUE HAPPENED WITHIN THE LAST FIVE YEARS.
II. WHEN A DEFENDANT IS BORN OUTSIDE THE UNITED STATES, DEFENSE COUNSEL HAS AN OBLIGATION TO MAKE MORE THAN A CURSORY INQUIRY INTO NATIONALITY.
We are not persuaded by these arguments and affirm substantially for the reasons set forth in Judge Santiago's thorough opinion. We add only these additional comments.
Defendant claims that the court erred in declaring the petition time barred when the actual discovery of an impediment did not take place until after the statutory period had already run. In particular, defendant asserts that he was unaware of his immigration problems until his arrest in 2010, because he believed he was a United States citizen. He contends that the time bar rule as applied to immigration cases, and this case in particular, is unduly harsh. He asserts that "[t]he impact of deportation strongly outweighs any reasonable prejudice to the State in revisiting the case." He also notes that the delay is just two years over the five-year period.
Rule 3:22-12(a)(1) sets a five-year time limitation for the filing of a PCR petition, unless the petition itself shows excusable neglect for the late filing, and that fundamental injustice will ensue if defendant's claims are not considered on their merits. Rule 3:22-12(a)(2)(A)-(B) allows an additional one-year limitation period if the courts recognize a new constitutional right or defendant discovers a previously unknown factual predicate justifying relief from the conviction.
The New Jersey Supreme Court has required a showing of "compelling, extenuating circumstances" or, alternatively, "exceptional circumstances, " to relax the time limitation for a PCR petition.
State v. Milne, 178 N.J. 486, 492, 494 (2004), certif. denied, 210 N.J. 479 (2012); see State v. Goodwin , 173 N.J. 583, 594 (2002); Afanador, supra, 151 N.J. at 52;
State v. Mitchell, 126 N.J. 565, 580 (1992).
In this case, defendant acknowledged that he told the court and his counsel that he was a United States citizen. As the trial court recognized, there is no basis to impute knowledge of any other immigration status or issue to counsel or the court. Furthermore, defendant has not shown that he was not unaware of his immigration status except to indicate that an arrest triggered his detention based on the drug conviction. As such, we conclude that there is nothing in the record which demonstrates excusable neglect for defendant's failure to file a PCR petition within five years of his conviction. In sum, we conclude that the trial court correctly dismissed defendant's PCR petition as untimely filed.
Next, we turn to defendant's claim that he received ineffective assistance of counsel at his plea hearing because he was not advised that he would be deported as a consequence of his guilty plea. Counsel avers that defendant was a young individual who believed that he was a United States citizen, and whose trial counsel took him at his word when defendant testified accordingly. Counsel implores, nonetheless, this court to adopt a rule that would impose an obligation on defense counsel to require of any defendant, who was born abroad, to provide documentation to prove his or her nationality or immigration status. He cites to an unpublished case,
State v. Diaz , No. A-0237-07 (App. Div. Dec. 26, 2008) (slip op. at 13-14), in support of his argument for an evidentiary hearing to explore other documented references to defendant's country of origin.
Counsel's reliance on the Diaz case is both misplaced and misguided for two principle reasons. First, because unpublished opinions are not binding on this court, R. 1:36-3, this case does not provide any authority on this issue. Secondly, in Diaz, the State provided defendant's intake form as an exhibit to its appellate brief that had not been considered by the trial court. Supra, slip op. at 13. We, therefore, remanded the case for procedural reasons, for the trial court to reconsider the PCR petition in light of that document. Id . at 14. We did not address the appeal on the merits. Ibid.
As counsel here has not produced any viable argument on this claim, we decline counsel's suggestion to impose additional requirements on defense counsel and conclude that this claim lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).
We likewise reject defendant's claim that his counsel was ineffective. We bear in mind the well-settled legal principles relating to claims of ineffective assistance of counsel. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid.; see
State v. Fritz , 105 N.J. 42, 67 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.
We concur with the PCR judge's findings and conclusions that defendant has not met his burden to satisfy the Strickland analysis. We surmise that contrary to defendant's assertions that he was unaware of any impact on his immigration status, the record establishes that defendant was eighteen years old when his parents became naturalized, and that he had received but never completed an application to become naturalized himself. We conclude therefrom that at the time of his plea, years later, defendant was aware of his illegal immigrant status. There was no misrepresentation by defense counsel who had no reason to disbelieve defendant when he testified that he was a United States citizen. Counsel acted in accordance with the predominating law at that time. See Nunez-Valdez, supra, 2 00 N.J, at 138 (holding that the Court held that the defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from counsel's "false or misleading information" concerning his deportation consequences.). As such, counsel's conduct was not unreasonable or outside the professional norms, Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695, and defendant's claim of ineffective assistance cannot be supported on these facts.
Lastly, even if the failure to provide advice was deemed ineffective, defendant has not demonstrated that he was prejudiced or that the outcome would have been any different had counsel advised him accordingly. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. As noted, defendant received a five-year, non-custodial probationary term with conditions in lieu of facing the risk of a minimum ten years in state prison.