NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-03-0389.
Joseph E. Krakora, Public Defender, attorney for appellant (Louis De Julio, Assistant Deputy Public Defender, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (David A. Malfitano, Assistant Prosecutor, of counsel and on the brief).
Before Judges Grall and Waugh.
Defendant Rita Connolly appeals the Law Division's November 18, 2011 order dismissing her petition for post-conviction relief (PCR). We affirm.
In March 2007, Connolly pled guilty to second-degree theft by unlawful taking, contrary to N.J.S.A. 2C:20-3(a). The State's plea offer called for sentencing as a third-degree offense with a term of incarceration not to exceed four years. Connolly was sentenced in accordance with the plea offer. She did not file a direct appeal.
In April 2010, Connolly, who was a permanent resident in the United States, filed her PCR petition alleging that her defense attorney was constitutionally ineffective because he did not advise her that she would be deported if she pled guilty. The judge who had taken the plea heard oral argument on the petition, at which time he denied her counsel's request that he allow Connolly to appear and testify that she would not have accepted the plea offer had she been properly advised. He dismissed the petition. Connolly appealed. We reversed and remanded for an evidentiary hearing. State v. Connolly, No. A-0372-10 (App. Div. Oct. 5, 2011).
The judge held the remand hearing in November 2011. Connolly's original defense attorney testified that, although he did not remember a specific conversation, the transcript of the plea reminded him that he and Connolly had discussed the possibility of deportation. He further testified that this was his practice at the time. Although Connolly's testimony at the hearing was that she was not told she would definitely be deported, she acknowledged that she was aware at the time of the plea that she might be deported. The transcript of the plea itself reflects that the judge advised her that she could be subject to deportation.
After hearing the testimony and the argument of counsel, the judge delivered an oral decision. He found that Connolly had been advised, by her defense counsel prior to the plea and by the judge during the plea hearing, that she was subject to the possibility of deportation if she pled guilty. He determined, based on his factual findings, that Connolly was not entitled to relief. The judge entered an order of dismissal and this appeal followed.
Connolly raises the following issues on appeal:
POINT I: IF THE UNITED STATES SUPREME COURT DETERMINES THAT THE DECISION IN PADILLA V. KENTUCKY MUST BE APPLIED RETROACTIVELY, THEN THE P.C.R. JUDGE ERRED IN CONCLUDING THAT DEFENDANT HAD BEEN PROPERLY ADVISED OF THE ...