NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 26, 2013
On appeal from the Superior Court of New Jersey, Law Division, Union County, Accusation No. 01-08-1024.
Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, of counsel and on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel; Kimberly L. Donnelly, on the brief).
Before Judges Alvarez and Maven.
Defendant Alejandro Rodriguez appeals from the March 16, 2011 Law Division order denying his petition for post-conviction relief (PCR) based on a claim of ineffective assistance of counsel. We affirm.
Defendant waived his right of indictment and trial, and entered a guilty plea to an accusation charging him with third-degree receiving stolen property, N.J.S.A. 2C:20-7. He was sentenced to probation in accordance with the plea agreement on December 20, 2001, but was thereafter resentenced to county jail time as a result of a probation violation. No direct appeal was ever taken. Defendant filed this PCR petition on February 23, 2009.
During the plea colloquy, the judge asked defendant if he understood that "[t]his conviction once you are sentenced could cause you to be deported." Defendant then answered in the affirmative. The judge went on to state that deportation was "up to Immigration [Services], " and defendant again responded in the affirmative. On the plea form, which defendant later testified that he completed himself, defendant circled "not applicable" to question seventeen, which asks "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?"
During the PCR evidentiary hearing, defendant acknowledged that the judge who took his guilty plea advised him that if he was not a citizen, it might affect his immigration status. Defendant reiterated that he never discussed with his attorney the potential deportation consequences of a guilty plea because he considered himself to be a citizen and indicated on the plea form that the possibility of deportation did not apply to his case. He also acknowledged that he was convicted of a subsequent third-degree burglary in 2005.
After pleading guilty, defendant learned that his conviction for receiving stolen property affected his immigration status, and he was taken into custody sometime thereafter. While he was actually born in Germany, his parents were from Colombia. Neither country would accept him, and Immigration Services eventually released him from detention because it was unclear where he should be extradited.
The PCR judge, without explanation, stated that he was "satisfied" that defendant had established excusable neglect such as to exempt him from the five-year time bar with reference to ineffective assistance of counsel. See R. 3:22-12(a)(1). He opined that defendant exceeded the time guidelines with regard to the withdrawal of his guilty plea, application to pre-trial intervention, or similar requests. The judge further concluded that defendant's acknowledgment that he gave his attorney incorrect information defeated any claim of ineffective assistance of counsel. Trial counsel could not have been expected to be "prescient" or "omniscient, " or to know that her client was not a citizen unless advised of that fact. Since counsel was unaware of the potential legal problem, she could not be expected to advise defendant on the subject. This was particularly true in an instance such as this, where defendant himself completed the plea form promulgated by the Administrative Office of the Courts, including question seventeen, in which he indicated that deportation was not relevant to his case.
The PCR judge also observed that defendant was aware of the possibility of deportation because the judge who took the plea so informed defendant. Furthermore, defendant had a second, subsequent conviction, which would have resulted in deportation regardless of the receiving stolen property conviction. Therefore, the judge concluded, defendant met neither ...