STATE OF NEW JERSEY v. CELSO G. LOPEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3602-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CELSO G. LOPEZ a/k/a JERRY LOPEZ,

Defendant-Appellant.

______________________________

November 2, 2012

Submitted October 1, 2012 - Decided

Before Judges Parrillo, Fasciale and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 95-10-1794.

Walter D. Nealy, attorney for appellant.

GaetanoT. Gregory,Acting HudsonCounty Prosecutor,attorney forrespondent (WilliamN. Specht,Special DeputyAttorney General/

Acting Assistant Prosecutor, on the brief).

PER CURIAM
 

This case presents the novel question of whether a defendant may seek to vacate an order expunging his own conviction to pursue a petition for post-conviction relief (PCR) to set aside the guilty plea underlying that conviction. The occasion for such a motion in this case arises from the likelihood of defendant's deportation because, according to federal immigration authorities, State expungement orders do not ameliorate the adverse consequence of criminal convictions. Instead of ruling on the motion to vacate the expungement, the Law Division judge granted defendant access to the records underlying his criminal conviction and allowed the filing of his PCR petition. We granted the State's motion for leave to appeal and stayed enforcement of the order.

Some background is in order. Defendant Celso G. Lopez and his family emigrated to this country from Columbia, South America in 1986, when he was ten years old. He was arrested in Bayonne on June 5, 1995 and indicted on several drug counts. On December 6, 1995, he pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute in a school zone, N.J.S.A. 2C:35-7. Although the plea form instructs that his guilty plea may have immigration consequences, the transcripts of both the plea hearing and sentencing reflect no record discussion of the matter at those times. On July 29, 1996, defendant was sentenced to a three-year probationary term.

A little over ten years later, defendant was granted an expungement of the arrest and conviction by order of January 16, 2007, pursuant to N.J.S.A. 2C:52-2. Thereafter, around July 2009, in an attempt to regularize his status, defendant filed an application to register permanent residence with the U.S. Department of Homeland Security, U.S. Citizenship & Immigration Services (Service). His application was denied on March 22, 2010, because of his drug conviction, which the State court expungement "[did] not ameliorate." The Service also informed defendant that if he failed to depart the United States within thirty days, "proceedings will be initiated to enforce [his] departure."

As a result, on May 26, 2011, defendant filed a PCR petition, alleging ineffective assistance of counsel for failing to advise of the immigration consequences of his guilty plea, and seeking withdrawal of that plea. Because the underlying conviction had been expunged by virtue of the January 16, 2007 order, the Criminal Division manager refused to accept and file the petition, prompting defendant's instant motion to vacate the expungement order and thereby revive the drug conviction. The State objected and following argument, the court declined to vacate the expungement but instead, relying on N.J.S.A. 2C:52-19, granted defendant access to the expunged records and allowed him to proceed with his PCR petition. Explicit in the order is the court's determination that it is unnecessary to vacate the expungement in order for defendant to file his PCR petition.

By leave granted, the State appeals entry of that order as beyond the statutory authority of the court.

Although made moot by subsequent events,1 we first address the decision to allow defendant to inspect expunged records. An expungement "requires the [S]tate to extract and isolate the criminal justice records of a defendant." In re T.P.D., 314 N.J. Super. 643, 649 (Law Div. 1997), aff'd o.b., 314 N.J. Super. 535 (App. Div. 1998); see also N.J.S.A. 2C:52-1a. "Records are neither modified nor destroyed, but are rather withdrawn from public access and released only when permitted by one of the [expungement statutes', N.J.S.A. 2C:52-1 to -32,] narrow exceptions." T.P.D., supra, 314 N.J. Super. at 646. In other words, by statute, records of a conviction could still be used in certain contexts. G.D. v. Kenny, 411 N.J. Super. 176, 188 (App. Div. 2009), aff'd, 205 N.J. 275 (2011). Those situations include release for, among other things, setting bail, sentencing, classification of inmates and use in connection with diversionary programs. N.J.S.A. 2C:52-17 to -23.

None of these enumerated exceptions apply here. Pertinent, however, is N.J.S.A. 2C:52-19, which provides:

Inspection of the files and records, or release of the information contained therein, which are the subject of an order of expungement, or sealing under prior law, may be permitted by the Superior Court upon motion for good cause shown and compelling need based on specific facts. The motion or any order granted pursuant thereto shall specify the person or persons to whom the records and information are to be shown and the purpose for which they are to be utilized. Leave to inspect shall be granted by the court only in those instances where the subject matter of the records of arrest or conviction is the object of litigation or judicial proceedings. Such records may not be inspected or utilized in any subsequent civil or criminal proceeding for the purposes of impeachment or otherwise but may be used for purposes of sentencing on a subsequent offense after guilt has been established.

[N.J.S.A. 2C:52-19 (emphasis added).]

In granting defendant access to and inspection of the records underlying his criminal conviction, the court relied on N.J.S.A. 2C:52-19 and found that these records are the object of a "judicial proceeding" initiated by defendant's PCR petition, within the meaning of that provision. Presumably, the court also found, implicitly, that defendant's exposure to imminent removal and deportation, as well as the claim asserted of a deprivation of the constitutional right to effective assistance of counsel, combine to satisfy the "good cause" and "compelling need" requirements of the statutory exemption.

We have no quarrel with the resolution of the issue as framed by the trial court. Our reservation instead lies with the overarching question left unanswered, namely whether defendant is entitled to a vacatur of the 2007 expungement order. Because the court below found such relief was not a necessary prerequisite to either an inspection of the expunged records or the filing of a PCR petition challenging the underlying criminal conviction, it did not reach the essential issue raised by defendant's motion. Although not dispositive of our decision today, we nevertheless briefly address the matter.

No provision in the expungement statutes is made for vacatur of a prior valid expungement order. The singular exception, which does not pertain here, is when the court is made aware of some statutory disqualification that existed at the time of the initial petition for expungement. Thus, N.J.S.A. 2C:52-26 provides:

If, within 5 days of the entry of an expungement order, any party to whom notice is required to be given pursuant to section 2C:52-10 notifies the court which issued the order that at the time of the petition or hearing there were criminal, disorderly persons or petty disorderly persons charges pending against the person to whom the court granted such order, which charges were not revealed to the court at the time of hearing of the original motion or that there was some other statutory disqualification, said court shall vacate the expungement order in question and reconsider the original motion in conjunction with the previously undisclosed information.

Section 26 thus expressly allows collateral attacks on expungement orders by those "to whom notice [of the expungement petition] is required[,]" namely the law enforcement agencies, corrections officials and, in some cases, municipal court magistrates, all designated in N.J.S.A. 2C:52-10. N.J.S.A. 2C:52-26. Given this explicit limitation, it is reasonable to assume that the Legislature did not foresee a situation where a request to vacate an expungement would be made by one in whose favor the order was originally entered. It would seem counter-intuitive to posit otherwise.

To be sure, there is no express statutory prohibition against a defendant seeking such relief but neither is there statutory approval. Clearly, defendant's case is an exceptional one, not reasonably contemplated by the Legislature. To determine defendant's qualification then, a court should look to the statutory scheme as a whole for guidance, Fiore v. Consol. Freightways, 140 N.J. 452, 466 (1995); State v. A.N.J., 98 N.J. 421, 428 (1985), and furthermore construe Chapter 52 in light of its "original laudable purpose," T.P.D., supra, 314 N.J. Super. at 648, which is to eliminate "the collateral consequences imposed upon otherwise law-abiding citizens who have had a minor brush with the criminal justice system," ibid.; see also N.J.S.A. 2C:52-32, and "permit a defendant to regain many of those civil privileges that are lost attendant to a criminal conviction," T.P.D., supra, 314 N.J. Super. at 648.

We need not decide whether the avoidance of deportation would so qualify since defendant's vacatur motion would not remove the threat, but only allow him the opportunity to challenge the validity of the conviction on which any potential deportation order would rest. On this very point, however, we cannot ignore the basic fact that defendant's putative attack on his conviction is constitutionally based, grounded as it is in his Sixth Amendment right to the effective assistance of counsel. The constitutional dimension of his claim, alone, may very well trump any statutory obstacle to defendant's attempt to vacate the expungement order and thereby facilitate its resolution.

As did the trial judge,2 we need not reach the ultimate issue framed by defendant's motion in order for his PCR petition to proceed to conclusion. In the first place, defendant has already accessed and inspected the expunged records underlying his conviction and is fully prepared to advance his constitutional claim, as should the State by way of responding thereto. On this score, we discern no reason to disrupt the trial court's allowance for the filing of the PCR petition. Second, resolution of the PCR petition in the State's favor would obviate the need to decide whether defendant may move to vacate an expungement order in his favor. In this regard, we simply note that defendant's petition is belated and untimely, Rule 3:22-12, and raises issues, the merits of which have been recently questioned. See State v. Gaitan, 209 N.J. 339 (2012); State v. Nunez-Valdez, 200 N.J. 129 (2009); see also Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).3 On the other hand, should the PCR petition be resolved in defendant's favor, and the issue having been preserved, defendant would be able to revive his motion to vacate the expungement order at that time and have the merits resolved on a full and complete record. Although it may seem counter-intuitive to allow the PCR petition to proceed without first resolving questions concerning the very existence of the conviction on which it is predicated, under present circumstances and given the developments to date, we perceive no prejudice to the interests of the State in doing so.

Affirmed.

1 Although we stayed the February 8, 2012 order, we were advised at oral argument that defendant has in his possession the records necessary to pursue the relief he seeks.

2 Although he declined to decide the issue, the trial judge intimated that since the expungement order is for the benefit of defendant, he should be able to waive the privilege:

But, the reason that those parties who have to obey the expungement order is to protect the defendant, because he got it expunged. So, it's his right, if he wants to waive his right to have these people not even acknowledge that the conviction, or for that matter, the expungement exists. It's his -- he can waive it, if he has legitimate reason for waiving it, he can certainly waive it. And, what I'd like to see is that this problem about the PCR even being filed be handled by -- and I understand, counsel, you agree -- your client will, in a certified, sworn form, specifically waive his right to have anybody involved -- we'll list them, the Criminal Division manager, the Court, the Prosecutor's office, the State police, the FBI, the local police, and basically everybody involved in this, that he will expressly waive his right to have him deny that this conviction exists, or that it will -- or that it had been expunged. And when he does that, you'll also give me an order, and I'll sign it, ordering the Criminal Division manager to now, since there's no problem, now file the PCR, and treat it in due course.

By the same token, the trial court reasoned that because by statute the expunged records could still be used against defendant in certain contexts, defendant should retain the ability to vacate the expungement as a means to opening up the conviction for collateral attack:

So, there is a reason why somebody would have a legitimate right to at least file a PCR, even if the matter was expunged. So I don't think we're . . . not un-expunging it. Even throughout the course of the PCR hearing as far we go, it still is expunged. Just that everybody who normally would be obligated to pretend they don't know anything about it will have the freedom to acknowledge that the conviction and the expungement exist. We're not really un-expunging it. The expungement order stays in effect.

3 We acknowledge that the Third Circuit of Appeals in United States v. Orocio, 645 F.3d 630, 641 (2011), has held, contrary to Gaitan, that Padilla does apply retroactively. As noted in State v. Barros, 425 N.J. Super. 329, 334 n.4 (App. Div. 2012), this difference in approach may entitle some New Jersey defendants facing or subjected to deportation to pursue habeas corpus review in the federal courts. The question of Padilla's retroactivity or non-retroactivity is expected to be resolved by the United States Supreme Court in Chaidez v. United States, ___ U.S. ___, 132 S. Ct. 2101, 182 L. Ed. 2d 867 (2012).