STATE OF NEW JERSEY v. JOHN DATUS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4651-07T44651-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN DATUS,

Defendant-Appellant.

__________________________

 

Submitted April 28, 2009 - Decided

Before Judges Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-04-1198.

Yvonne Smith Segars, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant John Datus appeals from the February 27, 2008 order denying his petition for post-conviction relief (PCR). We reverse and remand for further proceedings consistent with this opinion.

On April 2, 2003, defendant was charged by an Essex County Grand Jury with fourth-degree possession of a controlled dangerous substance (CDS) (marijuana), N.J.S.A. 2C:35-10a(3) (Count One); second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(10) (Count Two); and third-degree possession of a CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (Count Three). On May 12, 2003, pursuant to a negotiated plea agreement, defendant pled guilty to Count Three in exchange for the State dismissing Counts One and Two and recommending a sentence of three years of imprisonment with an eighteen-month period of parole ineligibility. On June 27, 2003, the trial court sentenced defendant in accordance with the plea agreement to run concurrent with sentences defendant was then serving on other convictions. The court also imposed all appropriate fines and penalties and suspended defendant's driving privileges for a period of six months.

On May 26, 2004, prior to being released from prison, the United States Department of Justice (USDJ) Immigration and Naturalization Service served defendant with deportation papers and thereafter took him into custody, pending a removal proceeding. On May 5, 2005, the USDJ Immigration Court denied defendant's application to withhold removal and ordered him removed to Haiti.

On July 27, 2005, defendant filed a pro se petition for PCR, alleging ineffective assistance of plea counsel, contending that, although he answered "yes" to Question No. 17 in the plea agreement, "[d]o you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?", he was advised by counsel not to worry about the question because "[y]ou won't be deported because this is your first felony drug conviction." On August 16, 2005, defendant's appeal of the order of deportation was dismissed.

On November 17, 2005, the Court of Appeals for the Fifth Circuit denied defendant's motion seeking a stay of deportation. As a result of defendant's deportation, the Office of the Public Defender filed a motion to withdraw defendant's petition for PCR without prejudice, contending that the issue was moot. On June 28, 2006, the court granted the motion.

While in Haiti, defendant contacted the Office of the Public Defender and requested that it move to reinstate his PCR petition. The Public Defender filed a motion to reinstate the petition on December 7, 2006. On February 27, 2008, the trial court entered an order supported by an oral decision denying defendant's petition without an evidentiary hearing. In denying the evidentiary hearing, the court reasoned:

I'm not sure what we would do in a plenary hearing. We can't get [defendant] here to testify. I guess, we could get [the public defender] here to testify. . . .

. . . .

So that's why no plenary hearing. Based on what I've got in front of me[,] the defendant's answer to my questions, the defendant's answers to the questions on his plea form, the fact that the defendant did not raise on direct appeal that this wasn't a voluntary waiver, or plea of guilty, I'm going to deny the application for [PCR].

And, also, my belief that, in essence, it's moot because he does have a prior conviction for a theft offense, which is one of the enumerated aggravated felony factors in the federal immigration law.

On appeal, defendant argues:

POINT I.

DEFENDANT'S PETITION FOR [PCR] SHOULD HAVE BEEN GRANTED ON THE GROUNDS OF INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, PARA. 10 OF THE NEW JERSEY CONSTITITION.

A. DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY ERRONEOUSLY ADVISING DEFENDANT THAT HE WOULD NOT BE DEPORTED AS A RESULT OF HIS PLEA.

B. THE PCR COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

POINT II.

THE PCR COURT ERRED BY RESOLVING DISPUTED ISSUES OF FACT AGAINST DEFENDANT AND DENYING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING ON HIS PCR PETITION.

POINT III.

THE TRIAL COURT'S FAILURE TO INFORM DEFENDANT THAT AS A CONSEQUENCE OF HIS GUILTY PLEA HE WOULD BE SUBJECT TO AUTOMATIC DEPORTATION VIOLATES FUNDAMENTAL FAIRNESS AND RENDERS THE PLEA INVALID AS IT DENIED DEFENDANT THE OPPORTUNITY TO MAKE A KNOWING AND VOLUNTARY DECISION.

In Point II, defendant argues that the trial court erred in denying his petition for PCR without conducting an evidentiary hearing "in view of the factual record demonstrating that [he] was not accurately advised of the deportation consequences of his plea." We agree.

Defendant pled guilty to Count Three, pursuant to Rule 3:9-2, which provides in pertinent part:

The court . . . shall not accept such plea without first questioning the defendant . . . and determining by inquiry of the defendant and others . . . that there is a factual basis for the plea and that the plea is made voluntarily . . . and with an understanding of the nature of the charge and the consequences of the plea.

The decision of whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination whether a defendant has made a prima facie showing of the claim. Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. State v. Preciose, 129 N.J. 451, 462 (1992). Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington. State v. Preciose, 129 N.J. 451, 463-64 (1992); see also State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694; 104 S. Ct. at 2068, 80 L. Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

"'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro, supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315).

Motions to withdraw guilty pleas are governed by Rule 3:21-1. Accordingly, "a plea may only be set aside in the exercise of the court's discretion," and if the motion is made after sentencing, the "defendant[] must show [his or her] conviction was manifestly unjust in appealing to the court's broad discretion." State v. Slater, 198 N.J. 145, 156 (2009). In meeting his or her burden, a "defendant[] must show more than a change of heart. A 'whimsical change of mind,' by the defendant or the prosecutor, is not an adequate basis to set aside a plea." Id. at 157 (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div. 1974)). "[D]efendants have a heavier burden in seeking to withdraw pleas entered as part of a plea bargain." Id. at 160.

Generally, deportation consequences flowing from a guilty plea are considered collateral and not related to the penal consequences of the plea. State v. Heitzman, 209 N.J. Super. 617, 622 (App. Div. 1986) (holding that a "defendant need be informed only of the penal consequences of his plea and not the collateral consequences, such as . . . effect on immigration status. . . ."), aff'd o.b., 107 N.J. 603 (1987); see also State v. Reid, 148 N.J. Super. 263, 266 (App. Div.), certif. denied, 75 N.J. 520 (1977). Nevertheless, where a defendant's attorney affirmatively misinforms the defendant that a guilty plea will not result in deportation and defendant relies on that advice in accepting a negotiated plea, that advice equates to ineffective assistance of counsel, and defendant should be permitted to withdraw his or her plea. State v. Garcia, 320 N.J. Super. 332, 339-41 (App. Div. 1999).

We have considered defendant's arguments in light of the record and applicable law. We are satisfied that the trial judge should have provided defendant an evidentiary hearing to flesh out his allegation that his attorney affirmatively misinformed him not to worry about Question No. 17 on the plea form because "[y]ou will not be deported because this is your first felony drug conviction." Defendant's certification presented a question of fact as to what was told to him by his plea counsel. In denying the application, the trial court noted that conducting an evidentiary hearing would serve little purpose because defendant would not be present, and it doubted that counsel would remember his conversation with defendant. While this may be so, defendant is still entitled to an evidentiary hearing on the issue of whether his attorney provided him misinformation concerning deportation. Id. at 341.

Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.

 

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

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9

A-4651-07T4

July 14, 2009