STATE OF NEW JERSEY v. PAULO NETO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1296-08T41296-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAULO NETO,

Defendant-Appellant.

_______________________________

 

Submitted: March 11, 2009 - Decided:

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 98-10-1907.

Pinilis Halpern, LLP, attorneys for appellant (Jeffrey S. Mandel, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On October l5, 1998, twenty-five-year-old defendant Paulo Neto, a citizen of Portugal, was indicted with two co-defendants on third-degree possession of controlled dangerous substances (CDS), N.J.S.A. 2C:35-10a(1); and second-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5b(2). The charges arose from an incident in which defendant and his friends occupied a shore house in South Belmar. Police officers arrived with a code enforcement officer upon the belief the house had a municipal code violation that prevented the issuance of a certificate of occupancy. The lessee allegedly consented to the officer entering the house. As an officer approached a bedroom, the lessee closed the bedroom door and informed the officer the room contained "personal stuff." A shift commander arrived and entered the room, finding 25.3 grams of cocaine, placed in vials, on the dresser. The lessee admitted owning the cocaine. Defendant made a statement admitting he was aware of its existence.

On March 24, 1999, defendant filed a motion to suppress evidence without a warrant, which he withdrew on the return date, and entered into a negotiated agreement with the State. On April 16, 1999, defendant pled guilty to the amended charge on count two of third-degree possession of cocaine with intent to distribute and on July 9, 1999, he was sentenced, consistent with the plea agreement, to three years of non-custodial probation, with applicable fines, penalties and a driver's license suspension. The co-defendants were extended the same offer, entered guilty pleas to the amended charge, and received the same sentence. Each defendant's plea offer had been contingent upon guilty pleas by the other co-defendants or truthful testimony by the defendant at the co-defendants' trials.

Defendant executed a plea form at the time he entered the plea. He initialed the first and second pages of the form and signed the third and fourth pages. He circled "yes" in response to the questions "Do you understand what the charges mean?" and "Do you understand that by pleading guilty you are giving up certain rights," including the rights to a jury trial, to remain silent, and to confront witnesses? Question l7 on the form inquired, "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?" Defendant also answered in the affirmative. Defendant circled "no" to the question "Do you have any questions at all concerning this plea?"

At the plea hearing, defendant affirmed that he had signed the plea form after reviewing it with his attorney "on a question by question basis." He also answered "yes" to the court's questions, though limited, concerning the voluntary character of the plea, his understanding of the plea agreement, and its penal consequences. There was no discussion regarding defendant's immigration status or question seventeen. By way of factual basis, defense counsel asked the following questions, with defendant answering "yes" to each:

"Did the three of you have a quantity of cocaine in your possession?"

"You knew it was cocaine?"

"It was your purpose, was it not, to take that cocaine and share it with friends during the summer months?"

The court accepted the plea as voluntarily entered and with understanding of the terms "based upon [its] evaluation of [defendant] as a witness and his words under oath," as well as factually based. At sentencing, defense counsel made no additions or corrections to the pre-sentence report and urged the court to adopt the plea recommendation. Defendant chose not to address the court himself. Defendant was advised of his right of appeal.

After receiving probation, defendant remained employed as he had since l993, got married, started a family, and successfully completed his probation. On August 11, 2007, defendant was returning to Newark Airport from Portugal and sought readmission to this country as a lawful permanent resident, having initially been admitted in 1986. Defendant instead was served with a Notice to Appear charging that he was ineligible for re-admission under the terms of the Immigration and Nationality Act, 8 U.S.C.A. 1182(a)(2)(A)(i)(II). On June 5, 2008, the immigration court sent defendant a notice of hearing and removal proceedings, and on October 14, 2008, it ruled that defendant was to be deported, apparently having concluded his conviction for third-degree possession of a CDS with intent to distribute qualified as an "aggravated felony" under federal immigration law.

On December l9, 2007, defendant filed a notice of appeal and a month later filed a motion for leave to appeal as within time. On February l9, 2008, we dismissed the appeal without prejudice to the filing of a post-conviction relief (PCR) petition premised upon defendant's claim of ineffective assistance of counsel "provided defendant can convince the Law Division that the time bar for PCR should not apply." On April 17, 2008, we denied defendant's motion for reconsideration and to vacate the dismissal.

On or about June 3, 2008, defendant's new counsel filed a PCR petition, urging defendant was entitled to relief seeking withdrawal of his plea agreement and a new trial because of a denial of constitutional rights due to ineffectiveness of trial counsel "who failed to advise [defendant] of the consequences of said guilty plea vis a vis [defendant's] deportation from the United States of America." Defendant acknowledged his filing was more than five years after the judgment, R. 3:22-12(a). He urged, however, it was because of his "excusable neglect" as he was not aware he may be deported for conviction of an aggravated felony until August 11, 2007, when he received the INS notice at Newark airport, and was not aware he may have grounds for an effective PCR application until recently meeting with PCR counsel.

Defendant submitted a certification from Richard Roberts, his trial counsel, stating he knew defendant was a permanent resident alien and confirming he had asked defendant the "generic question No. l7" on the plea form and they answered it affirmatively because of defendant's resident alien status. Roberts certified, however, that they "did not discuss the ramifications of the plea and how it would affect his immigration and the possibility of deportation" as "no one was being deported at that time and deportation was not an issue as it is today." Roberts further explained that "[p]rior to . . . September ll, 2001, the issue of citizenship and deportation was not a concern nor was it 'on the radar' as an issue[;] [a]ccordingly, as a matter of practice, the issue of deportation was not discussed with clients prior to [that date]." Roberts additionally certified that "[i]n hindsight, I probably should have requested a court approved interpreter for my discussions with [defendant] during the completion of the Plea Forms and for our appearance [at the plea hearing]" because "[t]o the best of [his] recollection" there was "a substantial language barrier" between defendant and himself and he is "not satisfied that [defendant] completely understood all [their] conversations."

The State opposed defendant's petition as time-barred and substantively unmeritorious. Following argument on October 3, 2008, the court allowed an adjournment to allow defense counsel the opportunity to explore with the prosecutor the possibility of negotiating an agreement to vacate the judgment and immediately plead guilty to third-degree possession of CDS, which apparently would not be a deportable defense.

When that was unsuccessful, counsel resumed oral argument on October l7, 2008. Defense counsel's arguments on excusable neglect were that defendant acted promptly after being served by the INS with the Notice to Appear on August 11, 2007, and is a "great man" who is gainfully employed and should be permitted to avoid deportation to stay with his family, warranting relaxation of the five-year time bar under Rule 1:1-2. He acknowledged there was nothing in Roberts' certification indicating there was a misrepresentation made to defendant regarding the immigration consequences of his guilty plea, see State v. Chung, 210 N.J. Super. 427 (App. Div. l986), but implored the court to grant an evidentiary hearing and "[p]ut Mr. Roberts on the witness stand [to] [s]ee what he has to say, and make your decision."

The court denied defendant's motion as time-barred, and alternatively, on substantive grounds, addressing the deportation issue and the language barrier claim. Judge Mellaci noted sympathy for defendant's plight, but further commented he was "duty bound to follow the law[,]" further observing the federal law disapproving of the practice of manipulating state criminal dispositions for the purpose of circumventing federal immigration law. The judge detailed the factual background of the case, Rule 3:22-12 (imposing a five-year deadline on PCR petitions absent facts establishing "excusable neglect"), Rule 1:1-2 (allowing relaxation of Rules if adherence would result in injustice), and the case law. He concluded that defendant's lack of knowledge of his possible right to PCR could not be considered excusable neglect under the law. Moreover, relaxation would be inappropriate because defendant offered nothing more than the bare allegation of his innocence, he received a favorable non-custodial sentence under the plea agreement, and the prejudice to the State of attempting to retry this almost decade-old case would be substantial, particularly where the co-defendants whose pleas were all contingent on one another have already completed their sentences.

The judge further found that Roberts' certification did not state "what needs to be said for me to have an evidentiary hearing," i.e., a prima facie case under State v. Preciose, 129 N.J. 451, 462-63 (1992), and the court did not perceive such a hearing would assist in resolving the motion. Judge Mellaci concluded that even if the case were not time-barred, based on Chung, supra, defendant substantively could not establish ineffective assistance of counsel on the deportation issue, because there was no allegation of an actual misrepresentation made to defendant by counsel regarding immigration consequences of a guilty plea, a fact conceded by defendant. Moreover, under the "totality of the circumstances" the court found "incredible" Roberts' assertion about the "substantial language barrier" and defendant's apparent general concurrence and resulting claim of ineffective assistance. The court was satisfied that an evidentiary hearing would not be warranted as defendant's claim for his need for an interpreter was not supported by the facts. The court elaborated that the police report, defendant's lengthy statement, and signatures on the consent to search form and Miranda waiver form, all occurring on June 10, 1998, gave no indication of a language barrier. Furthermore, at that time, as well as on defendant's two prior municipal court appearances reflected in the pre-sentence report and his court appearances on these charges, defendant never requested an interpreter. Accordingly, the court denied defendant's motion for PCR relief, memorialized in an October l7, 2008 order. This appeal ensued.

On appeal, defendant reiterates his arguments seeking relaxation of the five-year time bar, emphasizing the tragic consequences he will suffer and downplaying any prejudice to the State caused by the substantial passage of time. On the substantive issue, he contends his order of deportation could have been avoided if his attorney did any one of the following: (1) filed a motion to suppress evidence seized without a warrant; (2) had him plead guilty to a third-degree crime of drug possession consistent with his actual conduct and sentence instead of a second-degree crime of intent to distribute CDS, which provides for mandatory deportation; (3) discussed with him the portion of his plea form addressing deportation; (4) notified him that although the plea form indicated he "may" be deported for committing unspecified crimes, the truth of the matter is that he "will" be deported; or (5) had an interpreter assist defendant during discussions with counsel and the court. Defendant submits his attorney did none of these, which in isolation or cumulatively warrant vacation of his guilty plea.

For the first time on appeal, defendant contends that he had a meritorious Fourth Amendment claim as a warrantless search solely on the basis of a municipal code occupancy violation is unconstitutional and co-defendant's closing the door was insufficient to raise the officer's suspicion to the level of probable cause. He submits his trial attorney's failure to file a motion to suppress warrants suppression of his plea. As to the deportation argument, defendant acknowledges he was never misinformed that he could not be deported and his affirmative answer to question seventeen on the plea form showed he "may be deported by virtue of [his] guilty plea[,]" which his trial counsel certified they discussed. Defendant now argues that trial counsel was deficient because he did not fully discuss the ramifications and the fact that defendant's plea meant he "will" be deported because it was the type of offense that constituted an aggravated felony at the time of his plea. In essence, he is now claiming that conduct or omission constitutes erroneous information concerning possible immigration consequences and an actual misrepresentation of the law. Defendant urges that our decision in Chung fails to appreciate the misrepresentative nature of the plea form and in informing someone who "will" be deported that they "may" be deported. He also emphasizes the harshness of deportation and the effect it has on familial relationships. Defendant further argues that his trial counsel's certification raised a sufficient issue as to his command of the English language to warrant a hearing for him to be further questioned under oath.

Based on our review of the record and applicable law, we are satisfied that defendant failed to present a prima facie case of ineffective assistance of counsel, and we find no error in the trial court denying his PCR application without holding an evidentiary hearing. See Preciose, supra, 120 N.J. at 462-63; see also Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697-98 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Judge Mellaci was sympathetic to defendant's plight, as are we, but that is not an excuse to disregard the law as to the procedural time bar or the substantive requirements for establishing ineffective assistance of counsel and vacating a guilty plea.

The court's finding that defendant's PCR motion was time barred because it was filed more than three years past the five-year deadline of Rule 3:22-12(a), defendant had not established excusable neglect for the delay, and relaxation of the bar would not be appropriate under Rule 1:1-2, was consistent with the law and the evidence. Defendant is unrealistic in his assertion that vacating his plea and starting from square one a decade later would have little to no adverse impact on the State. Defendant's brief reveals his intent that he would be filing a motion to suppress, which would undoubtedly trigger a testimonial hearing, requiring witnesses to testify to events that occurred more than ten years earlier. R. 3:5-7(c); see also State v. Milne, 178 N.J. 486, 491 (2004) (recognizing that with the passage of time, the State's ability to accomplish "justice" becomes more unrealistic as memories dim, witnesses die, and evidence becomes lost or unattainable). Moreover, as noted by Judge Mellaci, an added complication in this case is that the three defendants' plea agreements were contingent upon acceptance by all or truthful testimony at trial. At this point, the two co-defendants have already pled guilty without the requirement of giving truthful testimony at trial being made part of their agreements and they have served their sentences. See State v. Goodwin, 173 N.J. 583, 596 (2002) ("[O]nce a codefendant is sentenced, to convince that codefendant to testify again is extremely difficult because he or she already has received the benefit of a plea bargain."). Moreover, although the judge made every effort to allow defendant informally to attempt to renegotiate a plea to simple possession to avoid the deportation consequences, he appropriately recognized the State was not obligated to agree to withdraw a validly entered plea for the purpose of circumventing federal law and was legally entitled to have the plea enforced.

As to defendant's claim of ineffectiveness due to his trial counsel's failure to file a suppression motion, improperly raised for the first time on appeal, see State v. Arthur, 184 N.J. 307, 327 (2005), the record reflects that on March 24, 1999, Roberts did file a motion to suppress. The motion was withdrawn on the return date, however, because defense counsel made a strategic decision, with defendant's knowing and voluntary consent, to enter into the plea agreement that had been accepted by co-defendants.

The case law is clear that a defendant is not entitled to an evidentiary hearing under Preciose unless he or she has established a prima facie case of ineffective assistance of counsel, 120 N.J. Super. at 462-63. It would be a waste of judicial resources to convene an evidentiary hearing and conduct a fishing expedition and put Roberts on the stand to "see what he has to say" when his certification raised no issues to establish an ineffective assistance claim as to deportation and defendant's understanding of English. The overwhelming evidence in the record also belied defendant's language barrier claim as baldly asserted by Roberts.

The question in this case is not whether trial counsel did everything possible to either protect defendant from deportation or to advise him of the precise immigration consequences of his guilty plea. According to the Strickland/Fritz test, a defendant is not entitled to the best legal advice available. State v. Davis, 116 N.J. 341, 351 (1989). The applicable test requires only that counsel not make "errors so serious" that he or she could not be said to be "functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see Davis, supra, 116 N.J. at 351. Contrary to defendant's argument, the record demonstrates that defendant was aware, at the time he entered his plea, that deportation was a potential consequence. Moreover, advising defendant in l999 that his plea "may" expose him to deportation, as reflected in question seventeen on the plea form, was correct advice. Even though the plea exposed defendant to deportation because the offense to which he pled was considered an "aggravated felony" under federal law, this did not mean that defendant necessarily would be deported as a consequence of his plea; the reality is that federal authorities did not enforce the immigration laws then as vigorously as they did in 2007 or do currently. As deportation was not a certainty at the time of the plea, no affirmative misrepresentation respecting this issue was made to defendant by counsel when he entered his plea.

Although defendant faces unfortunate consequences resulting from his conviction, we thus discern no basis to second-guess the trial court's conclusion that he received the effective assistance of counsel guaranteed by the Sixth Amendment when he pled guilty and the court's denial of defendant's PCR petition.

 
Affirmed.

Actually, the printed word "yes" is circled and scribbled out and next to it is handwritten "yes" and circled.

Defendant apparently also submitted his own affidavit in support of his PCR application, not contained in the appellate appendix, because the judge states "[t]he only facts that defendant states in his affidavit are that the drugs that were found in his house belonged to his co-defendant not him, although he clearly admitted guilt during his plea." The judge also references Roberts' and defendant's assertion that "due to his language barrier he was provided with ineffective assistance of counsel."

Defendant erroneously states throughout his brief that he pled guilty to second-degree possession of CDS with intent to distribute and was sentenced as a third-degree offender. He is mistaken. The record clearly indicates he pled guilty to a third-degree crime, as Count Two was so amended.

(continued)

(continued)

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A-1296-08T4

April 20, 2009