STATE OF NEW JERSEY v. RITA CONNOLLY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0372-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RITA CONNOLLY,

Defendant-Appellant.

________________________________________________________________

October 5, 2011

 

Argued September 13, 2011 - Decided

 

Before Judges Carchman and Baxter.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-03-389.

 

Lois De Julio, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. De Julio, of counsel and on the briefs).

 

Catherine Foddai, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; David A. Malfitano, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Rita Connolly appeals from an August 30, 2010 order denying her petition for post-conviction relief (PCR). In that petition, she argued that her attorney rendered ineffective assistance by failing to advise her of the deportation consequences that would result from her plea of guilty and subsequent conviction. Defendant faces immediate deportation. On July 26, 2011, the Supreme Court issued an order in State v. Gaitan, 206 N.J. 330 (2011), that temporarily stayed all PCR proceedings in which a deportation issue was raised. The Court, however, authorized the lifting of the stay whenever necessary to prevent irreparable harm. We are satisfied that this is such a case.

On the merits, we conclude the record supports defendant's contention that she reasonably did not contemplate that she would have had the opportunity to provide testimony on the day of the PCR hearing, as she believed the proceeding to be only a scheduling conference. After consulting with her attorney, she therefore chose not to attend the hearing. In her absence, the judge made findings of fact on the critical issues without the benefit of defendant's testimony. We therefore reverse the order denying PCR and remand for further proceedings.

I.

On March 2, 2006, a Bergen County grand jury returned an indictment charging defendant with ten counts of third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h, and one count of second-degree theft by unlawful taking, N.J.S.A. 2C:20-3a (count eleven). On March 29, 2007, after extensive plea negotiations, defendant entered a negotiated plea of guilty to count eleven. In return for defendant's plea of guilty and her agreement to pay restitution, the State agreed to recommend that she be sentenced in the third-degree range to a term of four years imprisonment, subject to the dismissal of the remaining counts of the indictment.

During the plea colloquy, the judge asked defendant where she was born, to which she replied "Milan, Italy," adding that she was a "[p]ermanent resident and married to an American citizen," with a child who was likewise an American citizen. She stated that she had been in the United States for "over 30 years." At that point in the plea proceedings, the following discussion occurred:

[THE JUDGE]: The -- reason why we ask these questions that, for certain offenses -- I do not conduct deportation proceedings, but I will tell you that Homeland Security Immigration get involved in these matters [sic]. They make the ultimate decision as to whether someone is deported or not.

 

You had the opportunity to speak to [trial counsel]. You had the opportunity to speak to an Immigration lawyer. I cannot tell you what will happen. What I will tell you, as a result of entering a guilty plea in this court, you could be subject to deportation proceedings. When they will happen, if they will happen, is another matter. Okay?

The record reflects no answer by defendant, with the transcript showing:

A: --

 

The judge then asked defense counsel to question defendant about the length of time he had spent discussing the matter with her, "so that it's not a plea that is done at the last minute." In response to counsel's questions, defendant agreed that she had discussed her case with him "on numerous occasions over the past year" and had done so "as recently as this past Monday[.]" She was not asked, and did not state, whether any of their discussions had included the deportation consequences of her plea of guilty. She did, however, indicate that she had had enough time to "think about and discuss" the entry of a plea of guilty.

Although question 17 on the plea form has since been revised by the Supreme Court, at the time of defendant's plea, the question read as follows:

17. 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?

 

"N/A" is circled, but is also crossed out; the answer "YES" is circled as well.

The judge asked defense counsel to elicit from defendant a factual basis for her guilty plea. In response to questions posed by her lawyer, defendant acknowledged that between November 1, 2004 and May 26, 2005, she operated a travel agency, and had accepted money from customers for the purchase of airline tickets; however she never provided them with the tickets. The total amount of the theft exceeded $275,000. The judge ruled that defendant had entered her guilty plea knowingly and voluntarily, and had provided a proper factual basis. The matter was then scheduled for sentencing.

On June 29, 2007, defendant appeared with counsel for sentencing. The proceeding was uneventful, with the judge imposing the negotiated sentence of a four-year term of imprisonment, accompanied by $278,177 in restitution and the imposition of the mandatory fines and penalties. Defendant did not file a direct appeal.

On April 13, 2010, defendant filed the PCR petition that is the subject of this appeal. She asserted that trial counsel never advised her that her guilty plea to second-degree theft by unlawful taking rendered her "automatically deportable." In particular, she maintained that after serving her prison sentence and upon her release from State Prison, she was immediately detained by Immigration and Customs Enforcement (ICE) pursuant to the applicable federal statute that defined "aggravated felony" as any "theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment is at least one year." See 8 U.S.C.A. 1101a(43)(G). She argued that because the crime for which she had been sentenced and convicted was an "aggravated felony," she became a "mandatory [ICE] detainee" and "automatically deportable."

Defendant also asserted in her PCR petition that she had not been advised of these consequences by trial counsel and had she been so advised, she would not have pled guilty. She stated:

I have been [i]n the US legally for 33 years (since 1977). When [I] signed for this plea on March 29, 2007 I was not advised by counsel that I would need to seek advice by an Immigration lawyer prior on [sic] signing the plea, because the effects would cause me serious consequences to my Immigration status. If I would have known the repercussions, I would have never agreed to the terms and condition[s] to the plea I signed with a 4 year jail term. . . . My understanding of the criminal laws and immigration laws were [sic] not really explained to me at all or not to my understanding of the consequences I would be facing with Immigration. When I signed my plea I was under the understanding that I would go home. Now it looks like I singed [sic] a life sentence.

 

Defendant also asserted in her PCR petition that "[d]uring the guilty plea hearing," she was "so frightened, upset and confused" that she "did not understand that the judge's comments about immigration consequences applied to [her]."

The judge scheduled the PCR hearing for August 23, 2010. The record reflects that defendant was present at the hearing, having been released on bail by the Immigration judge. Relying on State v. Nu ez-Vald z, 200 N.J. 129 (2009), and Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), defendant argued she had received ineffective assistance of trial counsel because counsel failed to advise her that she would be deported if she pled guilty to the charges in question.

After hearing from the Assistant Prosecutor, and reviewing the plea forms defendant had signed and the answers she had provided under oath during the plea colloquy, the judge concluded the hearing by affording the defense a one-week continuance to obtain an affidavit from trial counsel describing the extent of any conversations he had with defendant concerning the impact of her plea and conviction on her immigration status. PCR counsel responded by stating that although she would contact trial counsel to obtain an affidavit, she did not wish to call trial counsel as her own witness because "that would leave me in a position of not being able to cross[-]examine him." PCR counsel proceeded to explain that if the court were to call trial counsel as a witness, she assumed that she, PCR counsel, would be in a position to cross-examine him.

Trial counsel was apparently on vacation for the entire one-week period, and PCR counsel was unable to obtain his affidavit; however, unbeknownst to PCR counsel, the judge's staff had contacted trial counsel and asked him to attend the hearing on August 30, 2010. Under oath at that hearing, trial counsel provided the following answers to the judge's questions:

Q: [H]ave you had an opportunity to look through this file?

 

A: Yes, I have.

 

Q: Apparently, the defendant is raising an issue as to the fact that it was not explained to her that there was a deportation consequence. What is your recollection?

 

A: Judge, my recollection is that that issue was discussed and that's -- there's words to that effect on the plea form. I had her initial the question that had to do with possible deportation as --

 

Q: Another issue is for the last -- for a number of years, we've spent a great deal of time on this issue, going through it, asking questions and I don't ever recall a situation where we had somebody with a deportation issue where you, in your capacity as a Public Defender, did not go over it with them.

 

A: Well, Judge, I know it's a significant issue and -- for the Defendant, implications beyond the sentence, so I do make it a point to discuss that with clients before they enter a plea.

 

Q: Well, in this particular case, you went over that with her?

 

A: Yes.

 

At that point, the judge turned to PCR counsel and asked her if there was "[a]nything further?" The following discussion occurred:

[PCR COUNSEL]: Judge, I -- if this is an evidentiary hearing, then yes, I certainly would like to cross examine --

 

THE COURT: Well then, you can ask questions if you wish.

 

. . . .

 

[PCR COUNSEL]: Your Honor has skipped to hearing though [sic], it's not a cross examination, it would be direct, because --

 

THE COURT: Let me explain what we're doing. There was an assertion in your papers posed by the Defendant basically indicating that this issue was not covered. . . . And it's your obligation to establish a threshold.

 

In response, PCR counsel argued that if an evidentiary hearing were to be conducted, defendant would testify consistent with defendant's certification, that she was never properly advised about deportation by trial counsel. The judge answered, "just saying something does not in and of itself make it the truth." After PCR counsel noted that she was "prepared at some point to go forward with an evidentiary hearing," during which she would present the testimony of her client, the judge responded that defendant had essentially forfeited her right to present testimony because she had failed to appear at the hearing that day. The judge commented:

Bottom line, she made a choice not to be here, okay. If this is important, whether it's her first day at work or whatever it might be, she should be here. She decided not to be here.

 

When PCR counsel stated that her client was ready to testify at the next hearing, the following discussion occurred:

THE COURT: She's not here, we're proceeding.

 

[PCR COUNSEL]: Judge, I asked for an adjournment and I would like the record --

 

THE COURT: Your adjournment was denied.

 

[PCR COUNSEL]: That's correct. . . . [F]irst of all I, quite frankly, was quite confused as to what today's proceeding was going to be. At the time I left court on Monday, last Monday, I was under the impression that I had been asked by the court as a basically a friend of the court to obtain from [trial counsel] an affidavit or certification as to his recollection.

 

. . . .

 

[When I called trial counsel's office], I discovered that he was not going to be available until this morning. So that was something beyond my client's control.

 

And quite frankly, since I did not believe this was going to be an evidentiary hearing, [my client] has the right not to appear unless her testimony is needed. She, as you know, has a very large restitution order against her and has been trying, since she was released a month or so ago from the immigration jail, to get a job and start doing some of the things that she's required to [d]o. . . .

 

THE COURT: I think when you have a court date, especially it's a continuation of a hearing [sic], that she should be here.

 

. . . .

 

[Trial counsel] was called here to see if he had a recollection about that, okay? I have no reason to dispute what he's indicated.

 

After further discussion, PCR counsel argued that the testimony from trial counsel, which had been presented in lieu of his affidavit, "supports our application for an evidentiary hearing, because it is very unclear and there's a conflict of facts." The judge responded by stating, "It's not unclear," adding that he intended to deny defendant's PCR petition. The judge signed a confirming order the same day.

On appeal, defendant presents the following claims:

I. THE TRIAL JUDGE ERRED IN CONCLUDING THAT DEFENDANT HAD BEEN PROPERLY ADVISED OF THE IMPACT OF HER CRIMINAL CONVICTION UPON HER IMMIGRATION STATUS.

 

A. As a matter of law, neither the colloquy during the plea hearing, nor question #17 on the LR-27 form sufficiently advised defendant of the impact of her guilty plea upon her immigration status.

 

B. As a matter of law, the advice of defendant's trial attorney, as evidenced by his in-court "affidavit," did not sufficiently inform defendant of the impact of her guilty plea upon her immigration status.

 

C. The trial judge erred in relying upon a sworn statement by defendant's former counsel without ordering an evidentiary hearing so that he could be subjected to cross-examination.

 

II.

To establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Second, defendant must demonstrate 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. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).

Prejudice is not presumed. Id. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984) (citations omitted).

When a claim of ineffective assistance arises in the context of a guilty plea, "'[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.'" Nu ez-Vald z, supra, 200 N.J. at 139 (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994) (internal citations omitted)). If trial counsel provides "misleading, material information that results in an uninformed plea," and if the trial court is satisfied that the defendant would not have pled guilty if properly advised by counsel that he or she would be deported, a defendant is entitled to withdraw the plea of guilty and proceed to trial. Id. at 140, 142-43.

Our Supreme Court has not, however, had the occasion to delineate the outer boundaries of its opinion in Nu ez-Vald z. In particular, the Court has not yet determined whether the Sixth Amendment guarantee of the effective assistance of counsel requires trial counsel to advise a client that the crime to which he or she has pled guilty, constitutes an "aggravated felony" for which deportation is all but certain, see 8 U.S.C.A. 1227(a)(2)(A)(iii), or instead, merely requires trial counsel to advise the client that he or she "may" be deported. Thus, in light of the present state of the law, it is unclear whether the advice trial counsel claims to have provided to defendant here was sufficient. However, we need not tread into those waters, as we are satisfied that the procedural defects in the August 30, 2010 hearing require reversal.

As we have noted, PCR counsel did not realize prior to the hearing on August 30, 2010, that trial counsel would be present and would be providing testimony. For that reason, PCR counsel apparently advised defendant she need not appear at the hearing, as the matter would need to be rescheduled to accommodate trial counsel's schedule. By the time PCR counsel learned otherwise, it was too late, and the judge denied PCR counsel's request for an adjournment. Without defendant being present, the judge resolved the credibility questions in favor of the State when he accepted trial counsel's testimony as credible, and rejected defendant's certification.

Unquestionably, because deportation is "'the equivalent of banishment or exile,'" Padilla v. Kentucky, 559 U.S. ____, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 298-99 (2010) (quoting Delgadillo v. Carmichael, 332 U.S. 388, 390-91, 68 S. Ct. 10, 92 L. Ed. 17 (1947)), we are satisfied that it was error for the judge to conduct a PCR hearing without defendant being present to offer testimony. Our careful review of the record satisfies us that defendant did not reasonably anticipate that a final, and dispositive, hearing would be held on August 30, 2010; for that reason, she did not voluntarily choose to absent herself from the proceedings. We therefore reverse the order under review and remand for a new hearing.

We note that during the proceedings on August 30, 2010, PCR counsel noted that if she were to call trial counsel as her own witness, she would be unable to cross-examine him. Whether or not trial counsel will be requested, or subpoenaed, to appear at the remand hearing is unclear; however, in the interest of complete appellate review, we provide the following comments. Trial counsel is in a position adverse to that of defendant, his former client, on the question of whether he properly advised her. See State v. Barlow, 419 N.J. Super. 527, 536-38 (App. Div. 2011). For that reason, the court should permit PCR counsel to pose leading questions to trial counsel, as if on cross-examination. See N.J.R.E. 611(c).

Reversed and remanded.