STATE OF NEW JERSEY v. JAIME CALERO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6266-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAIME CALERO,

Defendant-Appellant.

________________________________

Submitted June 14, 2010 - Decided June 22, 2010

Before Judges Lisa and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment

No. 03-10-2034.

Law Offices of Patrick C. McGuinness, L.L.C.,

attorneys for appellant (Patrick C. McGuinness,

of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Patricia B. Quelch,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jaime Calero appeals from the order of the trial court denying his post-conviction relief (PCR) petition. Defendant argues that the trial court erred when it rejected his petition without affording him a hearing to present evidence in support of his claim that he was denied effective assistance of counsel. We granted defendant's motion to accelerate this appeal and now reverse and remand for the court to conduct an evidentiary hearing pursuant to State v. Preciose, 129 N.J. 451 (1992).

Defendant was born in Nicaragua in 1976; he is now thirty-four years old and has been residing in the United States since he was nine years old. On October 28, 2003, a Monmouth County grand jury indicted defendant for second degree aggravated assault, N.J.S.A. 2C:12-1b(1), and third degree aggravated assault, N.J.S.A. 2C:12-1b(7). The indictment identified Omar Chavarria as the victim of these crimes.

On April 12, 2004, defendant, with the assistance of counsel, negotiated a plea agreement with the State whereby he pled guilty to one count of third degree aggravated assault under N.J.S.A. 2C:12-1b(7). In return, the State agreed to dismiss the second degree aggravated assault count and recommend that defendant be sentenced to a term of incarceration not to exceed four years.

At the plea hearing conducted on April 12, 2004, the trial judge advised defendant that, based on what the attorneys had told her in chambers concerning his lack of any prior criminal involvement, she had agreed to sentence him to a non-custodial term of probation. Addressing him directly, the judge then asked defendant a series of questions to verify that he understood the legal rights he was giving up by pleading guilty and that he was not under the influence of any substances that would impair his judgment. Of particular importance here, in response to a specific question, defendant told the court that he was a citizen of the United States.

The judge then addressed defendant to ascertain whether there was a factual basis for his guilty plea.

[THE COURT]: [B]ut you have to understand you know you can only plead guilty if you are in fact guilty. If you are going to tell me you are not guilty and you are just taking this because you want to deal, you know that you can't do that. You know you - you can only plead guilty because you are guilty, you understand that. You are going to have to give me a factual basis which is why I'm going to ask you now.

The second count charges that you and [a co-defendant] on or about June 15th, 2003, in Asbury Park did commit the crime of aggravated assault by attempting to cause significant bodily injury or by causing such injury to Omar Chavarria purposely or knowingly or causing such injury reckless[ly] under circumstances manifesting extreme indifference to the value of human life. What did you do?

[THE DEFENDANT]: I went to the bar. The guy called [co-defendant] said he was going to be at the bar and [I] gave [co-defendant] a couple of calls so [co-defendant] came to my house and I told him he can come to my house and he told me about the problem and then the guy called him again and he was like okay so let's go and see what's going on with the guy.

Because both of the guys, the victim is my friend and when I used to have my company I used to give him work and I used to teach him how to work. And then we went over there -

[THE COURT]: Where's there?

[THE DEFENDANT]: To the bar.

[THE COURT]: Okay, with who, you and [co-defendant]?

[THE DEFENDANT]: Me and [co-defendant].

[THE COURT]: Okay and went over there to see Mr. Chavarria?

[THE DEFENDANT]: Correct.

[THE COURT]: And what happened?

[THE DEFENDANT]: And what happened, Mr. Chavarria came towards me but it wasn't him, it was somebody else Francisco that's the guy, Mr. Francisco came over, so I was talking to him when he was saying I was telling him about what was going on what's the problem, why he keep (sic) calling my friend, you know, he was like my brother. And then he was like, you know getting really anger (sic) at me, so you know, so I came and I hit him.

[THE COURT]: Who did you hit?

[THE DEFENDANT]: Francisco.

[THE COURT]: That doesn't help us here. You are charged with Mr. Chavarria. Then what happened?

[THE DEFENDANT]: Then what happened, [co-defendant] approached and hit Mr. Omar in the face and he dropped to the floor. And after that we left the scene of the accident.

THE COURT: [Addressing defense counsel] I don't see anything here.

[DEFENSE COUNSEL]: Mr. Calero, you went through --

THE COURT: Sometimes I think I'm banging my head against a brick wall.

[DEFENSE COUNSEL]: [Addressing defendant] You went to Labamba with [co-defendant]?

[THE DEFENDANT]: [Co-defendant], correct.

[DEFENSE COUNSEL]: All right and when you got to Labamba, did you wave Mr. Chavarria over to your area?

[THE DEFENDANT]: That's correct, I did.

[DEFENSE COUNSEL]: Okay and when he got over there did you get into a fight with him?

[THE DEFENDANT]: I got into a fight with Francisco.

[DEFENSE COUNSEL]: All right, Judge, I thought --

THE COURT: Sign it up for a plea cut-off.

[THE PROSECUTOR]: At the risk of interfering I think that it could be accomplice, he called him over.

THE COURT: I don't know it doesn't sound like anything to me. [Addressing defense counsel] would you go inside and talk to your client, because I'm getting very aggravated very quickly.

At this point, the record shows that the court attended to other matters for an indeterminate period of time to permit defendant to confer off the record with his counsel. The following exchange occurred when the plea hearing resumed:

[THE COURT]: Okay, Mr. Calero?

[THE DEFENDANT]: Yes.

[THE COURT]: You are still under oath, the indictment charges in Count 2 that on June 15th, 2003, in Asbury Park you did commit the crime of aggravated assault by attempting to cause significant bodily injury or by attempting to cause that injury to Omar Chavarria. Tell me what happened please, now if you don't want to plead guilty you tell me that to[o] and we'll go to trial.

[THE DEFENDANT]: Okay, I got confused a little bit with the name. The victim, he probably give (sic) me a different name, because his name was Francisco and the other one Omar Chavarria.

[THE COURT]: All right. Tell me what you know.

[THE DEFENDANT]: Okay. I went over there and I wave (sic) to them to come over right. And when he came then I hit him and then he fell.

[THE COURT]: Okay, and where did you hit him?

[THE DEFENDANT]: I hit him in the face.

[THE COURT]: In the face, were there any injuries?

[DEFENSE COUNSEL]: [Addressing defendant] When you hit him he fell --

[THE DEFENDANT]: He fell to the floor and he fell on a concrete floor.

[DEFENSE COUNSEL]: Did he become unconscious?

THE DEFENDANT: Yeah he became unconscious.

THE COURT: Now we are sure this person is Omar Chavarria?

[THE PROSECUTOR]: Yes.

THE COURT: Okay. I'll accept the plea of guilty because I find that this defendant has knowingly and voluntarily waived his constitutional rights. He's been represented by competent counsel and has given a factual basis to the event.

Consistent with its preliminary representations to defendant, after reviewing the pre-sentence investigation report, the court sentenced defendant on July 23, 2004, to a one-year term of probation and ordered him to pay the mandatory fines and penalties.

On July 16, 2008, the United States Immigration Customs and Enforcement Agency (ICE) detained defendant after serving him with a notice to appear in immigration court for deportation. Among the reasons cited by ICE for defendant's detention was his 2004 conviction for aggravated assault in Monmouth County.

On April 2, 2009, defendant filed a PCR petition alleging that the attorney who represented him at the plea hearing wrongfully pressured him into pleading guilty to an offense he did not commit and failed to properly advise him about the immigration ramifications of his criminal conviction. The petition came before the trial court for adjudication on July 1, 2009, almost five years after the court sentenced defendant.

After considering counsels' arguments, the PCR judge denied defendant's petition without first conducting an evidentiary hearing. Citing State v. Slater, 198 N.J. 145 (2009), the trial court found no legal basis to permit defendant to challenge his guilty plea. The PCR judge found that, despite defendant's claim that he never assaulted Chavarria, "defendant has not contemporaneously asserted a valid claim of innocence." According to the PCR judge, defendant implicitly adopted the prosecutor's statement that the victim had been definitively identified because neither defendant nor defense counsel corrected the prosecutor's response.

With respect to defendant's allegations that his attorney pressured him into naming the wrong person, thus obviating the court's finding that he pled guilty freely and voluntarily, the PCR judge found that defendant's claim lacked merit. The PCR judge based this determination on defendant's failure to raise this issue at the time of the plea hearing when the judge again reminded him that "he did not have to plead guilty, that he should do so only if he was guilty and that he needed to give a factual basis to the crime charged in the indictment."

Finally, the PCR judge found that despite defendant's claim that his attorney did not advise him of the immigration consequences of his plea, the record showed that defendant answered "yes" to the question in the plea form that read: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your guilty plea?" The PCR court also implicitly rejected defendant's explanation that he "misspoke" when he told the judge at the plea hearing that he was a citizen of the United States.

Against this record, defendant now appeals raising the following arguments:

POINT I

The Court Erred And/Or Abused Its Discretion In Finding That the Issues Raised In The Petition Could Be Ruled Upon By the Existing Record. A Proper Analysis And Application Of Relevant Legal Principles Demonstrates That Mr. Calero Made A Sufficient Showing of "Manifest Injustice" to Warrant An Evidentiary Hearing On the Issues Raised in the Petition.

A. The PCR Court Erred And/Or Abused Its Discretion In Denying Mr. Calero's Request For An Evidentiary Hearing On His Claim That There Was An Insufficient Factual Basis For The Trial Court To Accept His Guilty Plea. As The Plea Was Accepted Despite A Contemporaneous Claim of Innocence, The "Lack of A Factual Basis" Issue Was Properly Raised During Post-Conviction Proceedings And Should Have Been The Subject Of An Evidentiary Hearing.

B. The PCR Court Erred And/Or Abused Its Discretion In Denying Mr. Calero's Request For An Evidentiary Hearing On His Ineffective Assistance of Counsel Claims.

i. The PCR Court Erred And/Or Abused Its Discretion By Denying Mr. Calero's Request For An Evidentiary Hearing On His Claim That Prior Counsel Pressured Him to Plead Guilty.

ii. The PCR Court Erred And/Or Abused [Its] Discretion By Denying Mr. Calero's Request For An Evidentiary Hearing On His Claim That Prior Counsel Affirmatively Misrepresented The Immigration Consequences Of A Guilty Plea.

We review a claim of ineffective assistance of counsel under the two prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must show that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Although Rule 3:22-1 does not require evidentiary hearings to be held on post-conviction relief petitions, Rule 3:22-10 confers upon the PCR court the discretion to conduct such hearings. Here, we are satisfied that defendant's claims required further exploration in an evidentiary hearing because, if in fact defense counsel pressured defendant into pleading guilty to assaulting a person other than the individual identified as the victim in the indictment, his guilty plea cannot stand.

Defendant initially named Francisco as the person he "hit." Despite defense counsel's attempts to clarify defendant's possible confusion on this issue, the record shows that defendant clearly and consistently indicated that his co-defendant was the one who "approached and hit Mr. Omar in the face." When defense counsel then suggested that defendant "got into a fight" with Chevarria, defendant corrected him by saying: "I got into a fight with Francisco."

Defendant's ineffective assistance claim is based on what transpired after the court stopped the plea hearing to allow defendant and his attorney to discuss this matter off the record. According to defendant, "[d]uring this private conversation with counsel, [defendant] again indicated that he did not want to plead guilty to something he did not do. [Defendant's] counsel pressured [Defendant] to plead guilty, telling him: 'Sometimes you gotta lie.'"

We recognize that defendant's identification of Chevarria as the victim after the court reconvened directly undermines his claim of undue pressure. We further agree with the PCR judge that defendant was given every opportunity to bring these allegations of attorney impropriety to the attention of the court during the plea hearing and that his failure to do so at that time is highly probative that he may not be telling the truth now. However, the only way to definitively ascertain the validity of defendant's claim is for the PCR court to hear, under oath, the testimony of both defendant and his trial counsel. Only then will the PCR judge be in a position to determine, as a matter of credibility, what actually transpired during the time that defendant conferred with his attorney. Preciose, supra, 129 N.J. at 462.

On the question of defendant's immigration status, the United States Supreme Court recently held that the failure of an attorney to advise a client that his criminal conviction may lead to his deportation is sufficient to satisfy the first prong under Strickland. Padilla v. Kentucky, ____ U.S. ____, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010). Stated differently, provided that the attorney is aware of the client's immigration status, counsel provides ineffective assistance when the attorney does not advise the client that the criminal conviction may lead to deportation.

As Justice Stevens explained in Padilla:

Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it. There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

[Id. at ____, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296.]

The Court in Padilla did not address the second prong under Strickland, that but for counsel's error, the result would have been different, Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698, because the Kentucky Supreme Court did not initially consider this issue. Verizon Commc'ns, Inc. v. FCC, 535 U.S. 467, 530, 122 S. Ct. 1646, 1682-83, 152 L. Ed. 2d 701, 749 (2002).

Our own Supreme Court also recently addressed a claim of ineffective assistance of counsel predicated on counsel's alleged erroneous advice to a client concerning the immigration consequences of pleading guilty to a crime. State v. Nunez-Valdez, 200 N.J. 129 (2009). As was the case here, the defendant in Nunez-Valdez pled guilty to what proved to be a deportable offense after he: (1) answered "yes" to the question in the plea form that read "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?" and (2) claimed that his attorney assured him that he would not be deported by pleading guilty. Id. at 141.

Unlike what occurred here, however, the PCR court in Nunez-Valdez conducted an evidentiary hearing in which it found, as a matter of credibility, that "immigration consequences were very important to [the defendant] and that [his attorneys] told him that his immigration status would not be affected by a decision to plead guilty." Ibid. The Court then explained the implications of these findings on the defendant's constitutional right to effective assistance of counsel:

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. Accordingly, we reverse the judgment of the Appellate Division and reinstate the trial court's order that directed withdrawal of defendant's plea and reinstatement of the matter for trial.

[Id. at 143.]

Both Padilla and Nunez-Valdez established that a defendant's constitutional right to effective assistance of counsel encompasses the right to receive, under the appropriate circumstances, correct legal advice on the immigration consequences of pleading guilty to a crime. Thus, a defendant can satisfy the first prong under Strickland/Fritz if he or she can show that defense counsel gave erroneous advice in this area of law. Thereafter, a defendant can satisfy the "prejudice" prong under Strickland/Fritz if a trial court finds, from the evidence adduced at an evidentiary hearing, that the defendant would not have pled guilty if he or she had received the correct legal advice as to the immigration consequences of his or her plea.

Applying these principles here, we are satisfied that the record does not support the PCR court's finding that defendant was not denied his constitutional right to effective assistance of counsel when his attorney allegedly gave him erroneous advice that his guilty plea would not result in his deportation. Defendant's answer on the plea form, which indicated that he understood that by pleading guilty he was subject to deportation, although probative, is not dispositive and cannot form the only basis for the court's rejection of his claim of ineffective assistance of counsel. As is the case with defendant's allegation of attorney misconduct, the PCR court must decide the question of defendant's immigration status from the record developed at an evidentiary hearing.

Reversed and remanded. We do not retain jurisdiction.

 

The PCR petition incorrectly identifies defendant as "James Calero" but all other documents filed in this matter are captioned correctly.

Defendant was still in federal custody at the time he filed this appeal.

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