STATE OF NEW JERSEY v. JACQUES DUROSEAU

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1740-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JACQUES DUROSEAU,

Defendant-Appellant.

_________________________________

November 16, 2010

Submitted November 1, 2010 - Decided

Before Judges Reisner, Sabatino and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-05-0796.

Yvonne Smith Segars, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Noelle V. Fiorentino, Assistant Prosecutor, on the brief).

PER CURIAM

In this opinion, we address defendant Jacques Duroseau's direct appeal from a July 31, 2008 judgment of conviction (JOC). For the reasons set forth below, we remand this matter to the trial court for further proceedings consistent with this opinion.

I

The JOC resulted from defendant's guilty plea to third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. As part of the plea process, defendant signed a written plea form advising that "if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty" (emphasis added).

The plea agreement was placed on the record on October 24, 2007. Prior to taking the plea, the judge ascertained that defendant was a Canadian citizen. The judge advised defendant that "I don't know if you'll be deported, denied citizenship, that's up to Immigration and Customs Enforcement, not me." Defendant indicated he understood that. The judge then added: "You can't come back to me in the future and say well, I want my plea back because I'm getting deported or denied a visa. Do you understand that?" Defendant said "Yes."

The judge sentenced defendant to an aggregate prison term of five years with an eighteen month parole bar. Defendant filed an appeal from the JOC on December 1, 2008, however, the appeal was not scheduled for argument on an excessive sentence calendar until May 12, 2010. Before his appeal was heard, defendant served the mandatory portion of his sentence and was released on parole. He then faced deportation proceedings.

While defendant's direct appeal was pending, our Supreme Court decided State v. Nunez-Valdez, 200 N.J. 129 (2009), and the United States Supreme Court decided Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284, (2010). Because defendant's appellate argument, presented to us on May 12, 2010, concerned his right to withdraw his guilty plea based on those two recent cases, we transferred this case to the plenary calendar and ordered that the parties file briefs addressing "the issues of deportation and plea withdrawal in light of" Padilla and Nunez-Valdez.1 We also ordered that the plenary appeal be accelerated.

II

On this appeal, defendant argues that he should be permitted to withdraw his plea because he was misinformed about the impact that his guilty plea would have on his immigration status. Alternatively, he argues that we should remand this case to the trial court to allow him to make a factual record establishing that due to the misinformation he was given, and the claimed resulting prejudice, he should be permitted to withdraw his plea.

The State argues that Nunez-Valdez and Padilla have no retroactive effect and therefore do not apply to this case. Alternatively, the State argues that we should reject defendant's appeal on the merits because he was aware of the potential deportation consequences of his plea, or that we should dismiss this appeal and require defendant to pursue his claims through a PCR petition.

A.

With the parties' contentions in mind, we consider the Courts' holdings in Nunez-Valdez and Padilla. Both cases involved applications for post-conviction relief, filed by defendants who claimed that they were misinformed about the immigration consequences of their guilty pleas. In Nunez-Valdez, the defendant claimed that although he was innocent of the charges, his trial attorney convinced him to plead guilty to fourth-degree criminal sexual contact, in exchange for a sentence of probation. He contended that his attorney told him that if he did not plead guilty he would be sentenced to ten years in prison if convicted at trial, and inaccurately informed him that he was unlikely to be deported based on his guilty plea. Id. at 131-33.

In considering the claim, the Court declined to apply "the traditional dichotomy" between penal and collateral consequences of a conviction, and held instead that deportation was a sufficiently serious consequence that misinformation on the subject could justify allowing a defendant to withdraw a guilty plea. Id. at 138 (citing State v. Bellamy, 178 N.J. 127, 138-39 (2003)). Resting its decision on the New Jersey Constitution, the Court held that "the issue is whether it is ineffective assistance of counsel for counsel to provide misleading, material information that results in an uninformed plea, and whether that occurred here." Id. at 139-40.

The Court agreed with the trial court's conclusion that defense counsel rendered ineffective assistance. However, the Court also held that to justify a plea withdrawal, a defendant must satisfy both prongs of the traditional Strickland/Fritz2 standard, as modified to apply to guilty pleas rather than convictions after trial:

For a defendant to establish a case of ineffective assistance of counsel, 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.'" We approved of that two-part test in State v. Fritz, 105 N.J. 42, 58 (1987), in which we held that the federal standard for evaluating an ineffective-assistance-of-counsel claim approved in Strickland, supra, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, should apply in defining our state constitutional guarantee of effective assistance of counsel.

When a guilty plea is part of the equation, we have explained that "[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.'"

[Id. at 138-39 (citations partially omitted).]

Accepting the findings of the PCR trial court, that the defendant's immigration status was a critical issue in his decision to accept or reject the plea agreement, and that he pled guilty in reliance on his attorney's misinformation, the Court agreed with the trial court that the defendant's plea should be vacated:

In short, the trial court accepted defendant's testimony that he would not have pled guilty if he had known he would be deported, and found that defendant did not give a knowing, voluntary or intelligent plea. Based on the trial court's findings, which are amply supported by the record, defendant satisfied the prejudice prong of the ineffective-assistance-of-counsel analysis by showing that he would not have pled guilty but for the inaccurate information from counsel concerning the deportation consequences of his plea.

[Id. at 143.]

For purposes of future cases, the Court directed that the standard plea form be amended to advise defendants that if they pled guilty to any crime designated by federal law as an aggravated felony, they would (not might) be subject to deportation. Id. at 144.

As noted earlier, like Nunez-Valdez, Padilla arose from a PCR application. In Padilla, the Supreme Court likewise declined to apply the penal consequence versus collateral consequence analysis. Instead, the majority held that because deportation was a unique penalty, the "collateral consequence" analysis was inappropriate where deportation was involved: "as a matter of federal law, deportation is an integral part -- indeed, sometimes the most important part [footnote omitted] -- of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes." 130 S. Ct. at 1480. The Court further noted that "[t]he drastic measure of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes." Id. at 1476.

Finding that "[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation," the Court concluded that, "when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear." Id. at 1476-77. The Court held that, because deportation for most drug offenses is mandatory and the law is unambiguous, defense counsel must advise a non-citizen client considering a plea offer on a deportable drug offense that deportation will be a mandatory consequence of the plea. A defense attorney who fails to so advise a client renders ineffective assistance of counsel. Id. at1486.

The Court specifically declined to limit its holding to misadvice about immigration consequences: "It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so 'clearly satisfies the first prong of the Strickland analysis.'" Id. at 1484 (quoting Hill v. Lockhart, 474 U.S. 52, 62, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (White, J., concurring in judgment)). Thus, as in Nunez-Valdez, the Padilla Court held that the Strickland analysis applies to ineffective assistance claims based on deportation.

Deportation as a consequence of a criminal conviction is, because of its close connection to the criminal process, uniquely difficult to classify as either a direct or a collateral consequence. The collateral versus direct distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of deportation. We conclude that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel. Strickland applies to Padilla's claim.

[Padilla, supra, 130 S. Ct. at 1482.]

In addressing the potential impact of its decision, the Padilla majority indicated that it was not breaking new ground. Id. at 1485. The majority further reasoned that the decision was unlikely to open the "floodgates" of overturned convictions, because the second prong of Strickland (proving prejudice) is such a high bar to the success of most PCR petitions. Addressing the second Strickland prong, the Court observed that "to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Ibid.3

B.

Addressing the State's retroactivity argument, we need not attempt to predict here the extent to which either Nunez-Valdez or Padilla will be applied retroactivity. For the purposes of this appeal, it is sufficient to note that the United States Supreme Court has remanded at least two cases "for reconsideration" in light of Padilla. Chapa v. United States, ___ U.S. ___, 130 S. Ct. 3504, 177 L. Ed. 2d 1086 (June 28, 2010) (direct appeal from conviction resulting from guilty plea); Santos-Sanchez v. United States, ___ U.S. ___, 130 S. Ct. 2340, 176 L. Ed. 2d 559 (April 5, 2010) (appeal from denial of writ of coram nobis, an application to withdraw a guilty plea which may be filed under limited circumstances). That is consistent with the usual federal retroactivity principles. Under federal jurisprudence, the rule of law in a newly-decided case will, at a minimum, apply to that case and to other cases pending on direct appeal at the same time, provided that the issue is raised on those other direct appeals. See Whorton v. Bockting, 549 U.S. 406, 416, 127 S. Ct. 1173, 1180, 167 L. Ed. 2d 1, 10 (2007). We therefore conclude that because defendant's case was still pending on direct appeal when Padilla was decided, and he has raised the deportation issue on this direct appeal, Padilla applies to this case.

Likewise, in State v. McIntyre, 200 N.J. 365 (2009), an appeal from the denial of a PCR petition based on immigration issues, our Supreme Court summarily remanded for reconsideration in light of Nunez-Valdez. See also State v. Bellamy, 178 N.J. 127, 140-43 (2003) (discussing retroactivity principles and applying limited retroactivity to the new rule of law announced in that case). Hence, we conclude that Nunez-Valdez applies to this case as well.

C.

It is clear that the instructions defendant was given in the written plea form did not meet the requirements of Padilla. Defendant was told that he "may be deported" when in fact deportation was a mandatory consequence of his plea to the drug and weapons offenses. See 8 U.S.C.A. 1227 (a)(2)(B)(i) and (a)(2)(C). Further, through no fault of the trial judge, who was applying the law as it existed at the time, the judge also did not inform defendant of the mandatory deportation consequences of his guilty plea and implied that the deportation consequences of the plea were uncertain.

We next turn to the appropriate procedural remedy. We reject the State's contention that we should dismiss this appeal and require defendant to pursue a PCR petition instead. Pursuant to State v. Bellamy, supra, 178 N.J. at 140, we conclude that the appropriate remedy is a remand to the trial court to permit defendant to file a motion to withdraw the plea, pursuant to Rule 3:21-1. That was the remedy the Court ordered in Bellamy, after holding for the first time that, prior to accepting a guilty plea that could later result in civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38, a trial court must inform the defendant about that potential consequence of the plea. Therefore, rather than dismissing the appeal, we remand this case to the trial court for a hearing on defendant's claim that he should be permitted to withdraw his plea pursuant to Nunez-Valdez and Padilla.

In this case, defendant has already filed a PCR petition, through assigned counsel, seeking to withdraw his plea. Bearing in mind the delay that might result if we require that defendant start from scratch on remand, we will not require a new filing. Rather, defendant's PCR petition shall be reinstated and treated as a Rule 3:21-1 motion to withdraw the plea.

While defendant has already presented at least a prima facie case that he has satisfied the first Padilla prong (that he was misinformed, or not fully informed, about the immigration consequences of his plea), he may supplement his proofs on that issue before the trial court.4 Moreover, defendant must also satisfy the second prong of Padilla by showing that the misinformation or lack of critical information prejudiced him, i.e., that he would not have pled guilty had he known that deportation would be a certain consequence of his guilty plea. Padilla, supra, 130 S. Ct. at 1485; Nunez-Valdez, supra, 200 N.J. at 138-39.5

Remanded.

1 While his appeal was pending, defendant also filed a petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. However, upon the State's motion, the trial court dismissed the PCR petition without prejudice on July 22, 2010, because this appeal was pending and involved the same issues presented in the petition. See R. 2:9-1(a); R. 3:22-3; and R. 3:22-6A(2). Under Rule 3:22-3, a PCR petition cannot be filed while a direct appeal is pending, nor is a PCR to be filed as a substitute for a "motion incident to the proceedings in the trial court."

2 Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Fritz, 105 N.J. 42 (1987).

3 The Court also reasoned that knowing the immigration consequences of certain criminal convictions might spur all sides to engage in more creative plea bargaining. For example, a defendant who understands the potential deportation consequences of a plea to a certain offense, might be willing to plead guilty to a different offense carrying a more severe criminal penalty but a lower risk of deportation. Id. at 1486.

4 For example, we denied defendant's motion to supplement the appellate record with a certification from his trial attorney, attesting that she customarily would not have given defendant any more specific advice about his immigration status than was stated on the plea form. On remand defendant may provide that evidence to the trial court, if it was not already included in his PCR petition.

5 Defendant's counsel advises us that the procedural posture of his criminal appeal may be relevant to the federal deportation proceedings. To be clear, we consider the remand proceedings ordered here as an extension of defendant's direct appeal and not as PCR proceedings. If, on remand, any party contends that there are distinctions between the standards for withdrawing a plea set forth in Padilla or Nunez-Valdez, and those set forth in State v. Slater, 198 N.J. 145, 157-58 (2009) (addressing as a matter of judicial policy the general standards applicable to motions to withdraw a plea), an issue not briefed on this appeal, they should present those arguments to the trial court.