STATE OF NEW JERSEY v. RAMON LEON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5193-07T45193-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAMON LEON,

Defendant-Appellant.

___________________________

 

Submitted March 16, 2010 - Decided

Before Judges Wefing and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 99-04-0471.

Yvonne Smith Segars, Public Defender, attorney for appellant (J. Stewart Borrow, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Robyn B. Mitchell, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant appeals from the December 7, 2007 order of the trial court denying his petition for post-conviction relief (PCR). We affirm.

On April 21, 1999, defendant entered a plea of guilty to the fourth-degree offense of unlawful taking of a means of conveyance, in violation of N.J.S.A. 2C:20-10(d). At his plea hearing, the following colloquy occurred between defendant and the judge, which is pertinent to his appeal:

Q. Are you an American citizen?

A. Legal resident. I'm not a citizen, but I'm a legal resident.

Q. What country are you from?

A. Cuba.

Q. You have the right to contact the diplomatic counsel [sic] of Cuba, and to have them contact you. If you want to do that, if you want to stop now here, and try to reach the Cuban counsel [sic], or do you want to go ahead and do your plea now?

A. I'll do the plea.

On his plea form, defendant circled "yes" in response to question seventeen: "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?" The following colloquy occurred between defendant and the judge regarding the plea form:

Q. Did you sign this plea form on your case . . . ?

A. Yes, I did.

Q. Of your own free will?

A. Yes, I did.

Q. Did you read it and understand it before you signed it?

A. Yes. I went over it with [my attorney].

Q. And even though you're from Cuba, you speak good, and read and write good English, right?

A. Yes.

. . . .

Q. So, before you signed the form, you went over it with your lawyer?

A. Yes, I did.

Q. She explained its purpose to you, and asked if you had any questions on it?

A. Yes, she did.

On February 10, 2000, defendant was sentenced to a one-year term of probation.

On April 12, 2004, the Immigration and Naturalization Service, now known as Immigration and Customs Enforcement (ICE), filed an immigration detainer upon defendant who, at that time, was serving a sentence at Bayside State Prison on a burglary conviction.

ICE took defendant into federal custody and initiated removal proceedings against him. ICE's reasons for defendant's detainer included, among other things, that defendant had two convictions for shoplifting in violation of N.J.S.A. 2C:20-11(b)(2) on June 6, 2002 and August 6, 2003; each conviction resulted in the imposition of a ninety-day jail term.

Defendant filed his PCR petition on September 1, 2006, seeking to withdraw his guilty plea, claiming that "his defense[] counsel['s] failure to address the issue of deportation had he decided to enter a plea of guilt[y], inexorably led him to incriminate himself, thus, violating [his] Federal and State constitutional rights . . . ." Defendant also claimed that his factual basis for the plea was inadequate.

Counsel was assigned and appeared for oral argument on December 7, 2007. Counsel acknowledged that the court was "under no duty to advise a defendant that the offense to which he is pleading might render him deportable[,]" but nonetheless asserted that "the case law is equally clear that under certain circumstances defense counsel's failure to do so might render that performance by defense counsel ineffective."

Regarding the factual basis for the plea, counsel argued that "[k]nowledge that the vehicle was taken without the consent of the owner is an essential element of the crime of unlawful taking of means of conveyance."

Defendant addressed the court, stating:

[I]mmigration law mainly deports a legal permanent resident when either he commits one, an aggravated felony or when he commits two, minor crimes or crimes involving moral turpitude. This is the case that applies to me.

And when it's two . . . clearly, the immigration law was set up to give . . . an [sic] advice to a legal resident who is committing a crime that he cannot commit a second one.

And what I keep telling my lawyer is if I would have known, if I would have been advised, whether . . . by the [j]udge, by the prosecutor, or by my lawyer of immigration consequences . . . probably I would have been deterred from further committing crimes . . . . [I]f I would have known that these carry immigration consequences, I would have stopped that.

I'm saying that, I cannot prove it, but it is a possibility. And it might have . . . deterred me from further engaging in criminal activity . . . .

[T]he ones that really keep doing it are the ones that deserve then to be deported. That is my point. I don't know in what other words . . . to put it, but if I would have known, I wouldn't have done it anymore [sic].

The PCR judge rendered a decision from the bench at the conclusion of oral argument. Regarding defendant's immigration claim, the judge found:

Clearly when a defendant is not told the truth or is not told correct information and proceeds with respect to a plea, then . . . counsel has not functioned as counsel is required to.

. . . .

If [defendant] felt that it was necessary to have obtained further advice from an immigration lawyer or from other sources, he had the option of not proceeding with the plea but there's no indication here that he was misinformed.

In fact, the record indicates that . . . question No. 17 [in the plea form], was answered in the affirmative, that is that he knew . . . that there were . . . potential consequences, and that he was aware that that answer appears on the form.

. . . .

He did indicate at the time of his plea that he could read, write, and understand English. He had attended college. He had read the form. He reviewed the form with his attorney. He signed it. And as I said, at the time he signed it[,] it clearly indicated that he was aware that some immigration consequence was possible.

Based upon what transpired in this case, it cannot be said that counsel's assistance was ineffective. Everything points to the fact that [defendant] was told that there would be an immigration consequence. He was aware of that, he read it, he signed it and chose not to obtain any additional information as to what that meant.

Regarding defendant's claim that he gave an inadequate factual basis for his plea, the judge found that claim to be "time barred[,] . . . [since] more than five years passed before this PCR [petition] was filed. This is not something that required some additional discovery or some other event to occur for . . . defendant to have found out. He simply had five years to bring this petition and did not do it."

On appeal, defendant raises the following contentions for our consideration:

POINT I

PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (U.S. CONST., Amend. VI, XIV; N.J. CONST., (1947) Art. I, 10) BECAUSE DEFENSE COUNSEL FAILED TO DISCUSS POTENTIAL DEPORTATION CONSEQUENCES OF THE GUILTY PLEA

POINT II

BECAUSE PETITIONER DID NOT PROVIDE AN ADEQUATE FACTUAL BASIS FOR THE CRIME, HIS PLEA SHOULD BE VACATED

POINT III

THIS PETITION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED

In a supplemental letter submitted pursuant to Rule 2:6-11(d), defendant contends that the Supreme Court's decision in State v. Nunez-Valdez, 200 N.J. 129 (2009), decided during the pendency of this appeal, supports his position.

Having reviewed defendant's contentions in light of the record, we conclude they "are without sufficient merit to warrant discussion in a written opinion," Rule 2:11-3(e)(2), beyond the following comments.

A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.

The Strickland test applies to challenges to guilty pleas based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). See also State v. DiFrisco, 137 N.J. 434, 457 (1994). To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Hill, supra, 474 U.S. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). To meet the second prong of the test, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.

Defendant asserts a somewhat anomalous argument regarding his immigration claim. He argues that his trial attorney's advice was deficient for failing to advise him that if he committed additional crimes in the future, he would suffer "immigration consequences." The assertion that defendant should have been warned against committing future crimes is patently absurd. It is, moreover, unclear from the record whether a change in the federal immigration laws subsequent to 1999 created the situation that led to defendant's ICE detainer.

The record unequivically demonstrates that counsel informed defendant of the possibility of deportation as a result of his guilty plea. The plea form reflects defendant's affirmative answer to that question; defendant advised the judge at the time of his plea that he had reviewed the form with his attorney and understood it.

State v. Nunez-Valdez, supra, lends no support to defendant's position. There, the "claim of ineffective assistance of counsel [was] based on defendant's assertions that counsel provided misleading information on the consequences of a guilty plea. Defendant contend[ed] that his attorneys told him to accept the plea offer in exchange for a probationary sentence and that the plea would not affect his immigration status." 200 N.J., supra, at 137-38. On those facts, the Court concluded that counsel had "performed deficiently" by "misinform[ing]" defendant of the deportation consequences of his plea. Id. at 140-42. Here, defendant's assertion to the contrary notwithstanding, there was no "testimony that . . . defendant had been misinformed by his trial counsel as to the immigration consequences of accepting a guilty plea."

We find no basis, more than ten years after defendant's plea "to help him avoid deportation by permitting vacation of a guilty plea which he freely and openly made. Any action on our part at this late stage could be perceived as unwarranted meddling in federal immigration matters." State v. Chung, 210 N.J. Super. 427, 441 (App. Div. 1986).

We are satisfied that the PCR judge properly determined that defendant had failed to make a prima facie claim of ineffective assistance of counsel with respect to this claim.

We are further satisfied that the trial judge properly rejected as time-barred, defendant's second claim, regarding the factual basis for his plea. Defendant offered no explanation for his failure to raise this issue either on direct appeal or by a timely PCR petition. It is clear that he merely "bootstrapped" this claim onto his petition filed after deportation proceedings were initiated. Rule 3:22-4 bars the assertion of a "ground for relief not raised in a prior proceeding under this rule, or in proceedings resulting in the conviction, . . . or in any appeal taken in any such proceedings . . . ." Furthermore, Rule 3:22-12(a) provides that, other than a petition to correct an illegal sentence, no other PCR "petition shall be filed . . . more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect."

 
Defendant has proffered no evidence of "excusable neglect" for his failure to raise this issue previously. As the PCR judge noted, this claim required no "additional discovery or some other event" to make defendant aware of this claim. Affirmed.

(continued)

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A-5193-07T4

August 4, 2010