STATE OF NEW JERSEY v. LUZ ZAMBRANO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0661-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

LUZ ZAMBRANO,

Defendant-Appellant/

Cross-Respondent.

_________________________________________________

May 4, 2011

 

Submitted January 4, 2011 - Decided

 

Before Judges Messano and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-07-1688.

 

Yvonne Smith Segars, Public Defender, attorneyforappellant/cross-respondent (Brian D. Driscoll, Designated Counsel, on the brief).

 

John L. Molinelli, Bergen County Prosecutor, attorneyfor respondent/cross-appellant (AnnmarieCozzi, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Luz Zambrano appeals from the denial of her petition for post-conviction relief (PCR) without an evidentiary hearing. She raises the following points on appeal:

 

 

 

POINT I:

 

THE COURT ERRED IN DENYING AN EVIDENTIARY HEARING AND DENYING THE PETITION FOR POST [-]CONVICTION RELIEF.

 

POINT II:

 

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE FROM PCR COUNSEL. (NOT RAISED BELOW)

 

The State has cross-appealed, arguing that the PCR judge "erred in concluding that defendant's petition for [PCR] was not procedurally barred." We have considered these arguments in light of the record and applicable legal standards. We reverse and remand the matter for further proceedings.

On June 5, 2000, defendant pled guilty to Bergen County Accusation No. 00-06-1097 charging her with third-degree theft, N.J.S.A. 2C:20-3(a).1 An order of postponement was entered and defendant was admitted into the Pre-Trial Intervention Program (PTI). A special condition of her enrollment was her obligation to pay restitution in the amount of $1800 to the Oritaini Savings Bank in Hackensack.

On April 24, 2002, defendant's participation in PTI was terminated apparently because of her inability to make the monthly restitution payments. The matter was presented to the grand jury, which returned Bergen County Indictment No. 02-07-01688 on July 29, 2002, charging defendant with one count of third-degree theft. On October 28, defendant pled guilty to the indictment.

Pursuant to the plea agreement, defendant was to be sentenced to non-custodial probation with restitution as a condition. Defendant indicated that she understood the terms of the plea bargain. The judge then reviewed the plea form that defendant acknowledged she had executed with the assistance of trial counsel. The following colloquy took place:

Judge: Are you a citizen of this country?

 

Defendant: Resident to become a citizen.

 

Judge: You have a green card?

 

Defendant: Yes.

 

Judge: So Question No. 17 counts as checked off "not applicable" has to be answered in the affirmative. She has to initial this.2

You understand that by being a resident and pleading guilty today, that could negate your resident status and you could be deported. You understand that.

 

Defendant: Yes.

 

Judge: Did you go over that with your attorney?

 

Defense counsel: Your Honor, I apologize . . . . [T]he mistake is mine. When it said "natural" I thought it referred to her resident status. . . . I'm the one that confused it . . . .

 

When defendant indicated that she had not discussed the issue with her attorney beforehand, the judge provided her with that opportunity. After defense counsel indicated defendant had initialed the change to the plea form, the proceedings resumed.

Judge: Did you discuss . . . the fact that you could be deported? You may not be, but you could be, by virtue of the charge.

 

Defendant: Yes, I understand.

 

Judge: And despite knowing that, do you still wish to plead guilty?

 

Defendant: Yes, because I'm guilty.

 

After questioning defendant about the voluntariness of her guilty plea, the judge then asked:

Judge: In light of everything I said, you still wish to plead guilty to third-degree theft, pay back restitution . . . and a possibility of deportation to your country of origin, based on your resident status? That [is] what you want to do? You want to plead guilty, knowing all those things exist?

 

Defendant: Yes.

 

Defendant provided a factual basis in which she admitted using the victim's debit card to withdraw money from her bank account without permission. The judge accepted defendant's guilty plea. On December 6, 2002, he sentenced defendant in accordance with the plea agreement. Since she had re-located, her probation was transferred to Virginia.

On January 7, 2009, defendant filed a pro se petition for PCR. She claimed that she did not "understand the law" and did not speak English. In an attached statement, defendant explained that she was the victim of domestic violence, was not receiving child support and could not afford to pay restitution. She did not indicate that her conviction had in any way affected her immigration status.

Appointed PCR counsel filed a brief in support of the petition. The only substantive argument raised was defendant's assertion that trial counsel provided ineffective assistance because he failed to explain the "consequences a guilty plea would have on petitioner's immigration status." PCR counsel argued that defendant "faces deportation."

On July 2, 2009, a hearing was held on the petition before the same judge that had accepted defendant's guilty plea. PCR counsel noted that "her main argument" was that defendant was "confused" regarding any effect the guilty plea might have upon her immigration status. PCR counsel also contended that trial counsel was ineffective because he failed to "t[ell] the Court what was happening in [defendant's] life," i.e., her claims of domestic violence, and counsel should have argued that was a "special circumstance[]" permitting defendant to remain in PTI.

The judge rejected these claims, noting that defendant knew her guilty plea could have immigration consequences, had been provided with an opportunity to discuss the issue with her attorney, and had stated under oath that she understood. As a result, the judge concluded that there was no need to hold an evidentiary hearing on that aspect of defendant's ineffective assistance claim. Without explanation, the judge further determined that there was no basis to conclude trial counsel was ineffective regarding defendant's termination from PTI.

The judge noted that he was "waiving the statutory bar," which we interpret to mean that he was denying the petition on its merits, and not on the procedural ground that it was filed beyond the five-year time limit then contained in Rule 3:22-12.3 He entered an order denying defendant's petition and this appeal followed.

Before us, defendant argues that trial counsel provided ineffective assistance by not only "fail[ing] to inform her of th[e] possible consequence of her plea," but that he also "incorrectly advised her that she would not be subject to deportation." Defendant also reiterates the claim that trial counsel provided ineffective assistance by not advising the court that she was a victim of domestic violence. She claims that had counsel done so, "she would have been readmitted into PTI." Defendant contends she was entitled to an evidentiary hearing on these claims.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696. A defendant must show "a reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. In order "[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.'" State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (alterations in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).

We have noted that "[o]nce a defendant has established a prima facie showing of ineffective assistance of counsel, he is entitled to an evidentiary hearing to determine whether 'the result of the proceeding would have been different . . . .'" State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006) (quoting State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)), certif. denied, 192 N.J. 66 (2007). In order to establish a prima facie case, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). An evidentiary hearing is required only if "the facts supporting the claim are outside the trial record." Ibid. (citing State v. Preciose, 129 N.J. 451, 462 (1992)).

Since the PCR hearing in this case, but before defendant's appeal was filed, our Supreme Court decided Nunez-Valdez, supra. Since the appeal was filed, the United State Supreme Court has decided Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). In Nunez-Valdez, supra, 200 N.J. at 143 (internal quotation marks omitted), the Court concluded that a PCR petitioner could establish ineffective assistance of counsel if trial counsel "misinformed him as to the immigration consequence of pleading guilty, and . . . the defendant reasonably relied on the misinformation provided by his attorneys in deciding to plead guilty." The Court also modified question #17 on the plea form as follows: "'if your plea of guilty is to a crime considered an aggravated felony under federal law you will be subject to deportation/removal' and . . . [t]he form should instruct defendants of their right to seek legal advice regarding their immigration status." Id. at 144. We have recently determined that the holding in Nunez-Valdez should be given "[p]ipeline retroactivity . . . [to] those cases pending appeal of an order denying post-conviction relief." State v. Gaitan, ___ N.J. Super. ___, ___ n.9 (App. Div. 2011) (slip op. at 13).

In Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1484, 176 L. Ed. 2d at 296-97, the Court held that the petitioner need not establish "affirmative misadvice" by the attorney, because "[i]t 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.'" "When the [immigration] 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, . . . the duty to give correct advice is equally clear." Id. at ___, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296.

We have recognized the need to remand matters decided before the decision in Nunez-Valdez was announced. See Gaitan, supra, ___ N.J. Super. at ___ n.8 (slip op. at 13) (noting remands in our "unpublished opinion[s]" and the Supreme Court's decision in State v. McIntyre, 200 N.J. 365 (2009), requiring remand to consider the impact of the decision in Nunez-Valdez). We believe a remand is necessary in this case.

Defendant was advised by the judge on the record of the possible immigration consequences of her guilty plea. She was provided with an opportunity to discuss them with her attorney. She was thereafter advised again by the judge. She indicated, while under oath, that she understood, and that she still wished to plead guilty. We therefore reject any claim that she misunderstood the possible consequences of her plea based upon contrary or misleading advice rendered by her attorney.

However, what is unclear from the record is whether "the deportation consequence [wa]s truly clear," Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296. In other words, if defendant's guilty plea made "deportation . . . a virtual certainty," Nunez-Valdez, supra, 200 N.J. at 142, even the judge's salutary interrogation of defendant when she pled guilty might be insufficient.

As noted, defendant's certification provided no details regarding the impact that her guilty plea has had upon her immigration status. PCR counsel alluded to adverse consequences only in the broadest terms. However, we note that pursuant to 8 U.S.C.A. 1227(a)(2)(A)(iii), "[a]ny alien" is subject to mandatory deportation if "convicted of an aggravated felony." Pursuant to 8 U.S.C.A. 1101(a)(43)(G), "a[ny] theft offense . . . for which the term of imprisonment [is] at least one year" is deemed an "aggravated felony." Under the circumstances presented, we conclude a remand is necessary to permit the judge to consider the immigration consequences, if any, resulting from defendant's guilty plea, and their implications in light of the holdings in Nunez-Valdez and Padilla.

We see no merit to defendant's claim that trial counsel provided ineffective assistance because he failed to apprise the court that she was a victim of domestic violence which in turn caused her to be unable to pay her restitution and led to her termination from PTI. N.J.S.A. 2C:43-13(e) provides:

Upon violation of the conditions of supervisory treatment, the court shall determine, after summary hearing, whether said violation warrants the participant's dismissal from the supervisory treatment program or modification of the conditions of continued participation in that or another supervisory treatment program. Upon dismissal of the participant from the supervisory treatment program, the charges against the participant may be reactivated and the prosecutor may proceed as though no supervisory treatment had been commenced.

 

In State v. Devatt, 173 N.J. Super. 188, 195 (App. Div.), certif. denied, 84 N.J. 441 (1980), we remanded to the trial judge for reconsideration of the termination of the two defendants from the PTI program based upon their inability to make restitution payments. We held:

On remand the judges must determine whether the failure to comply with the condition for restitution within the time allowed under the circumstances which are shown to have existed supports the conclusion that termination of defendants' participation in the program is justified. The proof need not be established to any particular degree but must satisfy the judge in the exercise of sound discretion that the application to terminate is warranted. This requires a conscientious judgment which takes into account the particular circumstances of the individuals in deciding their fitness to continue within the diversionary program.

 

[Ibid.]

 

However, in this case, there is nothing in the record to indicate that defendant ever brought to trial counsel's attention that she failed to pay the restitution ordered because she was a victim of domestic violence. In fact, at the time of sentencing, trial counsel indicated to the judge that defendant failed to pay restitution because "she had money problems at that time because she was pregnant." Trial counsel continued, "Nevertheless, [she] should have made the restitution, [and] did not." He noted that defendant "now ha[d] a steady job and a more stable situation." Based upon the record before us, defendant's PCR petition was correctly denied on this ground.

Lastly, defendant contends that PCR counsel provided ineffective assistance because she failed to submit an affidavit or certification in support of her petition. Defendant continues, "[b]ecause no such statement accompanied [her] pro se petition, it was inevitable that the PCR Court would not conduct an evidentiary hearing and summarily deny the petition."

The Court has stated the standard for evaluating ineffective assistance claims regarding PCR counsel as follows:

PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them.

 

[State v. Webster, 187 N.J. 254, 257 (2006).]

 

"The remedy for counsel's failure to meet the[se] requirements . . . is a new PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175 N.J. 1, 4 (2002)).

In this case, PCR counsel raised the claim presented by defendant's pro se petition. She also argued the ineffective assistance claim as it related to defendant's guilty plea. There is nothing in the record to indicate that PCR counsel was deficient in marshaling the proofs in support of defendant's assertions.

In light of our decision, we briefly address the State's cross-appeal. Defendant's PCR petition was filed six years and one month after being sentenced. The State argues her claim is time-barred because pursuant to then-existing Rule 3:22-12, the petition was not filed within five years of "rendition of the judgment" and defendant failed to establish "excusable neglect" for the delay.

As already noted, the PCR judge did not address the issue. We recently noted:

The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition. To determine whether a defendant has asserted a sufficient basis for relaxing the Rule's time restraints, we should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an injustice sufficient to relax the time limits. Excusable neglect provides the means for a court to address and correct a criminal judgment where adherence to it would result in an injustice.

 

[State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009) (quotations omitted).]

 

On remand, the judge shall consider the arguments raised by the State and defendant as to whether the PCR petition should be dismissed in light of the above standards.

Reversed and remanded. We do not retain jurisdiction.

1 The record does not contain the transcript of these proceedings or the plea form defendant executed at the time.

2 On the plea form then in use, Question 17 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?" On defendant's plea form, "N/A" was initially circled. "Yes" is also circled, with a hand-written notation "by court," with defendant's initials next to the answer.

3 At the time, the Rule provided: "A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed . . . more than 5 years after rendition of the judgment . . . unless it alleges facts showing that delay beyond said time was due to the defendant's excusable neglect."