October 2, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
FELIX BLANCO, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 07-05-0678 and 08-10-1311.
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 Lihotz and Guadagno.
Defendant Felix Blanco, a citizen of the Dominican Republic, appeals from a February 10, 2011 Law Division order, denying his petition for post-conviction relief (PCR). On appeal, defendant argues:
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.
Following our consideration of these arguments in light of the record and applicable law, we affirm.
A Passaic County grand jury returned an indictment charging defendant with one count of fourth-degree stalking, N.J.S.A. 2C:12-10(b) (Indictment No. 07-05-678). On November 27, 2007, defendant entered a negotiated guilty plea in return for the State's recommendation of a non-custodial probationary sentence.
During the plea colloquy, the judge asked defendant whether he was a citizen of the United States, to which he replied his "nationality [wa]s Dominican." The following exchange then occurred between the judge and defendant:
Q: [D]o you understand that by entering this plea of guilty, you may be subject to deportation?
A: Yes, Sir.
Q: You also understand by pleading guilty, in the future if you want to become a citizen of the United States, it may [a]ffect your ability to become a citizen. Do you understand that?
A: Yes, Sir.
Upon further questioning, the judge determined defendant entered his guilty plea knowingly and voluntarily. He found defendant fully understand his rights and chose to waive them, understood the proposed terms of the plea agreement, and was apprised of the possible and probable sentence for the offense if convicted. Finding defendant provided an adequate factual basis to support his conviction of the offense charged, the judge accepted his plea. As recommended in the plea agreement, the judge imposed a probationary sentence. He also enjoined defendant's future contact with the victim.
Thereafter, defendant was indicted on the separate charges of third-degree stalking, N.J.S.A. 2C:12-10(c), fourth-degree criminal trespass, N.J.S.A. 2C:18-3(c), and fourth-degree contempt, N.J.S.A. 2C:29-9(a) (Indictment No. 08-10-1311). On June 18, 2009, he entered a negotiated guilty plea to third-degree stalking.
During the plea hearing on that charge, the issue of deportation was again discussed. The judge asked defendant his country of origin, to which defendant responded "the Dominican Republic." During the plea colloquy, the judge told defendant that entering a guilty plea "could result in you being deported back to the Dominican Republic after you finish your State Prison term[.]" Also, he explained: "Deportation is a federal government function, not a State government function. I can only speak for the State of New Jersey; therefore, it's up to the federal government to decide whether or not you will be deported." Defendant testified he understood and after acknowledging he was satisfied with the legal advice provided by counsel, stated he wished to enter a guilty plea.
On August 14, 2009, the trial judge sentenced defendant in accordance with the negotiated plea agreement to a four-year flat prison term. Defendant did not file a direct appeal.
Defendant filed a PCR petition, alleging counsel was ineffective because he failed to discuss the immigration consequences of his guilty plea. Specifically, defendant asserted counsel was required to provide something more than "simply advising him that he could be deported." Citing State v. Nuñez-Valdéz, 200 N.J. 129 (2009) and Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), defendant maintains counsel and the court were required to explain deportation was "a virtual certainty" if he pled guilty.
The judge denied the PCR petition without a hearing. He concluded the holdings enunciated in Nuñez-Valdéz and Padilla do not apply retroactively. This appeal ensued.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). Second, a defendant must prove that he or she suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. A defendant must demonstrate by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
In the context of a guilty plea, the standard to establish ineffective assistance of counsel is somewhat modified:
[T]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases"; and (ii) "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial."
[Nuñez-Valdéz, supra, 200 N.J. at 139 (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (citations omitted) (second alteration in original).]
Nuñez-Valdéz and Padilla address the standard of counsel's responsibility to discuss deportation consequences when a non-citizen is convicted following a guilty plea. In Nuñez-Valdéz, the New Jersey Supreme Court held "a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from 'inaccurate information from counsel concerning the deportation consequences of his plea.'" State v. Brewster, 429 N.J.Super. 387, 392 (App. Div. 2013) (quoting Nuñez-Valdéz, supra, 200 N.J. at 143). Thereafter, in Padilla, supra, the United States Supreme Court clarified counsel's duty was not limited solely to avoiding "false or misleading information" as identified in Nuñez-Valdéz, supra, 200 N.J. at 138. Rather, counsel had an affirmative duty to inform a defendant entering a guilty plea of the mandatory deportation consequences when such are "succinct, clear, and explicit[.]" 559 U.S. at 368, 130 S.Ct. at 1483, 176 L.Ed.2d at 295. The High Court made clear counsel's "failure to advise a noncitizen client that a guilty plea will lead to mandatory deportation deprives the client of the effective assistance of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J.Super. 329, 331 (App. Div. 2012) (citing Padilla, supra, 559 U.S. at 364, 130 S.Ct. at 1483, 176 L.Ed.2d at 296).
The effect of these decisions also has been recently reviewed. In State v. Gaitan, 209 N.J. 339 (2012), cert. Denied, __ U.S. __, 133 S.Ct. 1454, 185 L.Ed.2d 361 (2013), our Court concluded Padilla's holding altered counsel's responsibility when advising a defendant of deportation consequences. The Court explained Nuñez-Valdéz, was not a new pronouncement of law, id. at 352, as "it was hardly revolutionary under New Jersey law that an attorney could not actually give wrong or inaccurate information about immigration consequences of a guilty plea without risking an assertion of having provided ineffective assistance." Ibid. However, Padilla represented a new standard for an attorney's responsibility and, therefore, it must be applied prospectively. Id. at 372. On the other hand, the Third Circuit reviewed the question and concluded Padilla's holding applied retroactively. United States v. Orocio, 645 F.3d. 630, 639-41 (3d Cir. 2011).
The question now has been resolved. In Chaidez v. United States, __ U.S. __, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), the United States Supreme Court has concluded the rule announced in Padilla imposed a new obligation and announced a new rule of law. Id. at __, 133 S.Ct. at 1111, 185 L.Ed.2d at 160. Accordingly, Padilla's holding must be applied prospectively. Ibid. "Under Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334, 356 (1989)], defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding." Id. at __, 133 S.Ct. at 1113, 185 L.Ed.2d at 162.
We turn our review to this matter. Initially, we note defendant failed to directly appeal his conviction, obviating the need for review under the standard announced in Padilla. This results because, generally, a new rule of law "does not apply retroactively to a case where the direct review is over and the case is only being reviewed collaterally." Gaitan, supra, 209 N.J. at 364 (quoting Teague, supra, 489 U.S. at 310, 109 S.Ct. at 1075, 103 L.Ed.2d at 356). For completeness, we nevertheless consider defendant's arguments.
Defendant frames his ineffective assistance of counsel arguments as conduct equating to affirmative misadvice or misinformation, requiring relief under Nuñez-Valdéz. However, examination of the factual basis supporting his assertion, shows his argument actually is counsel failed to unequivocally warn him he faced deportation if he pled guilty. Accordingly, defendant's claim attacks as ineffective assistance counsel's advice regarding the likelihood, rather than the certainty, of deportation. This reflects a failure to perform at the level of competence announced in Padilla. See Barros, supra, 425 N.J. Super, at 332-33.
As we explained, Padilla's holding does not apply to this matter. Moreover, the claims do not rise to ineffective assistance. Given the prevailing professional standards and the state of immigration law at that time, advising defendant as to the possibility of deportation, even if deportation was probable, was not deficient legal advice. Brewster, supra, 429 N.J. Super, at 397 (citing Nunez-Valdez, supra, 200 N.J, at 138, 143) .
We also find no error in the PCR judge's denial of a defendant's request for an evidentiary hearing. Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if a defendant has presented a prima facie claim of ineffective assistance. State V. Preciose, 129 N.J. 451, 462-64 (1992), which he has not done here.