September 5, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ALEJANDRO RODRIGUEZ, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Stricklandprong, as his attorney was not ineffective and her advice did not prejudice the outcome.
Defendant asserts the following points of error for our review on appeal:
PLEA COUNSEL WAS INEFFECTIVE FOR NOT INFORMING DEFENDANT THAT HE WAS, IN FACT, SUBJECT TO PER SE DEPORTATION AS A RESULT OF THE GUILTY PLEA.
SINCE DEFENDANT, A RESIDENT OF THE UNITED STATES SINCE HE WAS SIX YEARS OLD, WAS NOT INFORMED OF THE FACT THAT HE WOULD BE DEPORTED AS A RESULT OF HIS GUILTY PLEA, THE PCR COURT SHOULD HAVE ALLOWED HIM TO WITHDRAW FROM THE PLEA AGREEMENT.
A defendant must establish two elements to prove ineffective assistance of counsel: first, that counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. 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. See 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 that 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 mark 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 2001, defense counsel was not required to inform a defendant that he faced a virtual certainty of removal or 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 __US at__, 133 S.Ct. at 1113 185 L.Ed.2d at 162 (holding that the 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);
Gaitan supra 209 N.J. at 373.
Certainly in this case where counsel was not even aware that defendant was not a United States citizen she could not have been expected to advise defendant of the potential for deportation Hence the attorney's silence on the subject was well within the realm of competent representation In any event the judge who took the plea adequately explained to defendant as required by the law at that time that the possibility existed Defendant's own confusion about his status made it impossible for anyone to do more than inform him of the possibility Therefore neither prong of the Strickland test has been satisfied
Finally we agree with the PCR judge that defendant's 2005 conviction makes the issue of his deportation as a result of this conviction moot Defendant would have been as eligible for deportation for a third-degree burglary as he was for a receiving stolen property offense