September 10, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JOHN DATUS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 11, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-04-1198.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas H.E. Hallett, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Parrillo and Messano.
Defendant John Datus appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. The record reveals that, on May 12, 2003, defendant pled guilty to count three of Essex County Indictment No. 03-04-1198, charging him with third-degree possession of marijuana with intent to distribute within 1000 feet of school property. N.J.S.A. 2C:35-7. The State agreed to recommend a sentence of three years imprisonment, with an eighteen-month period of parole ineligibility, and dismissal of the remaining counts of the indictment. On June 27, 2003, defendant was sentenced in accordance with the plea agreement, and the sentence imposed was to run concurrent with other sentences defendant was already serving on other charges.
While in custody, the Immigration and Naturalization Service served defendant with a notice of pending removal. Those proceedings in the immigration court ultimately resulted in an order that defendant be removed to his country of birth, Haiti. Subsequent proceedings in the federal courts resulted in denial of defendant's applications for further relief.
In the interim, on July 27, 2005, defendant filed a pro se petition for PCR. Defendant claimed trial counsel provided ineffective assistance. Specifically, defendant alleged that he was "misadvised" regarding the deportation consequences of his guilty plea. Defendant claimed trial counsel told him, "This being your first felony drug conviction, you will not be deported."
However, the Office of the Public Defender, which assumed defendant's representation, moved to dismiss the petition without prejudice as moot. The certification in support of the motion indicated that defendant had already been deported to Haiti, and, that PCR counsel was "unable to locate or communicate with . . . defendant . . . ." On July 28, 2006, the Law Division entered an order dismissing the petition, noting it was "withdrawn without prejudice due to the fact that defendant has been deported."
On December 7, 2006, the Public Defender moved to reinstate the petition. The certification supporting the motion indicated that, through telephone contact, defendant indicated that "the sole reason for his deportation was the conviction in the instant indictment, " and he still wished to pursue his PCR petition.
On February 27, 2008, after considering oral argument, the trial judge entered an order dismissing the PCR petition because defendant had already been deported. We reversed that order on appeal in State v. John Datus, No. A-4651-07 (App. Div. July 14, 2009) (slip op. at 9), concluding that defendant was entitled to an evidentiary hearing on his claims of ineffective assistance of trial counsel. We remanded the matter to the Law Division. Ibid.
The Essex County Assignment Judge, Patricia K. Costello, who was not the trial judge, conducted the remand hearing. As Judge Costello noted in her written opinion that followed, PCR counsel, despite "numerous unsuccessful attempts, " was unable to have defendant testify by video because of "the lack of infrastructure in Haiti, " which made the efforts "impossible." Trial counsel, however, was called as a witness and testified at the remand hearing.
Judge Costello noted that trial counsel was "an experienced public defender, having held that position for 13 years." She found his testimony "forthright and credible." In short, while he had no independent recollection of the events, he testified that he would not have advised defendant, who was facing a State Prison sentence, that the "plea would not result in deportation." Trial counsel recalled attending a training session "stressing that deportation was a real consequence in many pleas and that no assurances should be given to clients." Judge Costello found that trial counsel "would not have given defendant the assurances claimed by defendant in his certification . . . ."
Judge Costello further concluded that, "[b]ased on the proofs elicited at the evidentiary hearing, " defendant was not denied the effective assistance of counsel. She further took note of the plea form, which indicated defendant had indeed been "counseled" regarding the deportation consequences of his guilty plea. Judge Costello denied the PCR petition, and this appeal ensued.
Before us, defendant raises the following issues:
THE FAILURE OF TRIAL COUNSEL TO ADVISE DEFENDANT THAT HE WOULD BE DEPORTED AS A RESULT OF HIS PLEA AGREEMENT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
THE PCR COURT ERRED WHEN IT FAILED TO TAKE REASONABLE STEPS TO CIRCUMVENT THE LACK OF COMMUNICATION EQUIPMENT IN HAITI AND PERMIT DEFENDANT TO TESTIFY AS TO THE ADVICE THAT WAS GIVEN TO HIM ABOUT THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA
Having considered these arguments in light of the record and applicable legal standards, we affirm, substantially for the reasons expressed by Judge Costello in her written opinion. We add the following.
"[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)). The United States Supreme Court expanded the duty owed to a defendant in Padilla v. Kentucky, 559 U.S. ___, ___, 130 S.Ct. 1473, 1438, 176 L.Ed.2d 284, 296 (2010), specifically holding that "'when the deportation consequence [of a guilty plea] is truly clear, ' counsel's affirmative duty and obligation is to address the subject and to 'give correct advice.'"
Gaitan, supra, 209 N.J. at 373. The Gaitan court rejected retroactive application of Padilla. Id. at 375. The United States Supreme Court subsequently denied retroactive application of the expanded standard in Chaidez v. United States, 568 U.S. ___, ___, 133 S.Ct. 1103, 1113, 185 L.Ed.2d 149, 162 (2013).
Thus, in evaluating defendant's claim, we apply the standard set forth in Nunez-Valdez, supra. When he pled guilty, defendant acknowledged under oath that the answers on his plea form were truthful and resulted from adequate consultation with trial counsel. He admitted entering his guilty plea knowingly and voluntarily. Defendant acknowledged satisfaction with the services provided by trial counsel and indicated he had no further questions of the court. As Judge Costello noted, defendant answered "yes" to question #17 on the plea form, which specifically 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."
We defer to the findings made by Judge Costello because they are supported by substantial, credible evidence. See State v. Locurto, 157 N.J. 463, 474 (1999). Considering those findings, together with the other undisputed evidence in the record, Judge Costello correctly determined that defendant failed to establish a meritorious claim of ineffective assistance of counsel.
Regarding defendant's second point on appeal, he contends that Judge Costello failed to take "reasonable steps" to obtain his telephonic testimony at the remand hearing. The record reveals otherwise.
On the first day of the remand hearing, December 3, 2009, PCR counsel set forth in detail his attempts to arrange for defendant's video testimony. He specifically acknowledged all of Judge Costello's suggestions and efforts. PCR counsel also acknowledged receipt of emails from defendant that indicated an inability to arrange for the video conference. Judge Costello granted PCR counsel a continuance, and proceeded to hear the testimony from trial counsel.
When the proceedings re-convened nearly two weeks later, PCR counsel still could not establish a connection with defendant in Haiti. Judge Costello denied PCR counsel's request for a further adjournment.
Since this appeal was filed, our Supreme Court decided State v. Santos, 210 N.J. 129 (2012). In factual circumstances strikingly similar to those presented here, the Court determined that there "should not be a grant of telephonic testimony, or even a superior form of video-communication testimony, until and unless there is a satisfactory demonstration that the means to be used will ensure the essential integrity of the testimony for factfinding purposes." Id. at 142.
Furthermore, and more importantly, the Court concluded that based upon the transcript of the plea proceedings, "whether [the defendant] [wa]s entitled to an evidentiary hearing -- must be re-analyzed. Only if the answer to that is in the affirmative would this matter present a legitimate basis for addressing whether, and how, valid testimony, if required, could be properly obtained from [the defendant] from Mexico." Id. at 143. The Court ultimately determined that, "[e]ven if [the defendant] were to allege on remand that counsel affirmatively misinformed him that he would not be deported if he pled guilty, it does not appear to us that anything in the record available would support that version of events." Id. at 144. The Court held:
In sum we conclude that the initial grant of an evidentiary hearing in which [the defendant] was to be permitted to provide telephonic testimony must be reversed and this matter remanded for full reconsideration by the PCR court as to whether [the defendant] can meet the standard for entitlement to an evidentiary hearing under Gaitan particularly in light of the later-produced affidavit from defense counsel which the PCR court did not have
[Id at 145-46]
We take our guidance from Santos supra We need not specifically address whether the relief accorded by our colleagues in their prior opinion was providently granted There is no need to remand this matter for further proceedings in light of the extensive hearing and testimony adduced before Judge Costello We are firmly convinced that defendant was provided with a reasonable opportunity to present his claims at the remand hearing and those claims are without merit.