STATE OF NEW JERSEY v. JOHN PAPAMILITIADIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5314-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN PAPAMILITIADIS,

Defendant-Appellant.

____________________________________

May 10, 2011

Submitted December 8, 2010 - Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment

Nos. 92-10-3045 and 94-07-1614.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Arthur J. Owens,

Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney

for respondent (Hillary Horton, Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

Defendant John Papamilitiadis appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.

On June 20, 1997, defendant negotiated an agreement with the State through which he agreed to plead guilty to two counts of third-degree theft from a person, N.J.S.A. 2C:20-3. The charges emanated from two separate indictments returned by an Atlantic County Grand Jury which also charged defendant with second-degree robbery, N.J.S.A. 2C:15-1. At the plea hearing, defendant admitted to stealing casino chips on two separate occasions in 1992 from persons playing next to him in a casino.

Pursuant to the plea agreement, the State dismissed the robbery charge and agreed to recommend that defendant be sentenced to concurrent terms of three years, conditioned upon defendant appearing on October 3, 1997, the date scheduled for sentencing. Defendant failed to appear for sentencing and a warrant was issued for his arrest.

Defendant remained a fugitive until he was apprehended in 2005. On February 3, 2005, the United States Immigration and Customs Enforcement Agency filed a notice of detainer directing the Atlantic County Sheriff's Department to hold defendant for deportation once he was deemed eligible for release on the pending State charges.

Defendant was produced for sentencing on May 27, 2005. Because he had violated the explicit condition in the plea agreement requiring his appearance for sentencing in 1997, the court was no loner limited to the three-year term ceiling originally agreed to by the State. Despite this, the court sentenced defendant to concurrent three-year terms as provided for in the plea agreement. It is noteworthy that defendant did not raise the issue of his immigration status or the pending deportation order at the sentencing hearing.

Defendant did not file a direct appeal challenging the sentence imposed by the court or attacking the basis for his guilty plea. On February 27, 2006, defendant was deported to his native country of Greece shortly after being paroled from the three-year sentence imposed by the court.

On March 17, 2006, defendant filed a pro se PCR petition claiming that his trial counsel was ineffective in 1997 when she failed to inform him of the immigration consequences of his guilty plea. Court-assigned PCR counsel thereafter filed a brief in support of defendant's petition. Defendant also submitted a certification claiming that although his attorney advised him that a plea of guilty could result in deportation, the attorney also said that "in reality, no one is ever deported from third degree charges, for cases involving theft." He thus was "unaware of the real deportation exposure my plea of guilty offered."

The matter came before the trial court on October 16, 2008. In order to give the court's ruling analytical context, we must articulate the standard for determining ineffective assistance of counsel claims. 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.

The PCR judge began his analysis by noting that despite defendant's claims concerning the advice he received from his trial attorney, he was aware of the immigration consequences of his plea from other independent sources. Specifically, question 17 of the Plea Form completed by defendant asked: "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?" Defendant answered "yes." The PCR judge also found

[The] judgment of conviction showed that at sentencing the Court noted that he had a detainer against him from the U.S. Immigration, and his criminal record showed that he faced deportation proceedings in 1967 filed by INS in New York. After 1967, he had numerous deportable convictions and the detainer was in place prior to his '05 sentencing. He knew it, and he knew the possible consequences of it.

Thus, assuming that counsel's failure to estimate correctly the probability of deportation for this kind of crime in 1997 satisfies the first prong of the Strickland/Fritz test,1 defendant cannot show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Stated differently, defendant was well aware of the immigration consequences of this crime from his extensive criminal involvement predating this offense.

The PCR judge also found defendant's claims did not satisfy the second prejudice prong under Strickland/Fritz:

In a case like this where the petitioner had been a target of U.S. Immigration for a number of years, it cannot be assumed that his deportation was a direct result of the convictions only in this case. He was a deportable alien at the time of his plea. He was aware of that and entered into the plea agreement. In short, he has not met a prima facie case of ineffective assistance.

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

POINT ONE

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT TWO

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.

We affirm substantially for the reasons expressed by Judge Donio in his oral opinion delivered from the bench on October 16, 2008. We add only the following brief comments.

Defendant's arguments are predicated on Padilla v. Kentucky, ___ U.S. ____, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and State v. Nunez-Valdez, 200 N.J. 129 (2009), two cases that have redefined the standard of conduct expected from a criminal defense attorney. In Padilla, the United States Supreme Court 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, supra, at U.S., ___, 130 S. Ct. at 1486, 176 L. Ed. 2d at 299. In Nunez-Valdez, our Supreme Court came to a similar conclusion in the context of a scenario in which the attorney provided the defendant with erroneous advice about the immigration consequences of his plea. Nunez-Valdez, supra, 200 N.J. at 141.

Here, defendant's attorney correctly advised him that his crimes were deportable offenses. The deficiency alleged by defendant does not pertain to trial counsel's misrepresentation of immigration law; rather, it concerns counsel's assessment of United States immigration enforcement policy in 1997, a world very different from the one created by the events of September 11, 2001. However, as correctly noted and explained by Judge Donio, even if counsel's advice satisfied the first prong of Strickland, defendant did not show that this alleged misinformation was a material factor in his decision to plead guilty.

A

1 This assumption is directly undermined by defendant's argument that the attacks of September 11, 2001, changed this country's immigration policy against him creating an unconstitutional ex post facto prejudice for a crime he committed in 1997. The PCR judge correctly rejected this argument by noting that immigration policy is not grounded on penal considerations.