STATE OF NEW JERSEY v. FRANCISCO MORILLO-MOSQUEA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5481-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCISCO MORILLO-MOSQUEA,

Defendant-Appellant.

_______________________________

December 12, 2012

Submitted: November 28, 2012 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-02-0914.

Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Michael J. Williams, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Francisco Morillo-Mosquea, a legal resident alien born in and a citizen of the Dominican Republic, appeals denial of his petition for post-conviction relief (PCR), following an evidentiary hearing. Defendant alleged ineffective assistance of trial counsel in failing to apprise him of the immigration consequences of his guilty plea. We affirm substantially for the reasons stated by Judge Joseph A. Falcone in his comprehensive oral decision of December 2, 2010.

Defendant pled guilty in November 2007 before Judge Falcone to second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, in exchange for a recommended eight-year sentence and dismissal of first-degree aggravated sexual assault of a child, second-degree sexual assault of a child, and third-degree terroristic threats.1 Although defendant subsequently denied his crime when speaking with the Avenel psychologist, he later re-affirmed his guilt to Judge Falcone on the record on February 29, 2008, and advised he wanted to continue with his plea of guilty and sentencing.

On July 24, 2008, however, prior to sentencing, defendant moved to withdraw his guilty plea, advising Judge Falcone, "I don't feel guilty[,]" and claiming he pled guilty because his attorney told him to do so. The judge denied the motion. On July 30, 2008, the judge sentenced defendant to the negotiated eight-year term on the endangerment charge. He imposed mandatory fines, penalties, and assessments, as well as Megan's Law requirements and community supervision for life. The Department of Homeland Security issued an immigration detainer for defendant on November 5, 2008.

Defendant did not file a direct appeal. On June 9, 2010, however, he filed this PCR petition. Defendant certified that his trial attorney told him he would not be subject to deportation and forced him to plead guilty. Judge Falcone held an evidentiary hearing on defendant's PCR petition, during which defendant testified, as did his trial attorney John T. Somohano. Contrary to his certification, defendant testified that he never discussed deportation with Somohano. He claimed he never would have pled guilty had he known he would have been subject to deportation.

On cross-examination, defendant admitted meeting with Somohano about ten times, speaking with him other times, discussing the facts of the case, and asking him questions. He testified he and Somohano conversed in defendant's native language of Spanish. Defendant also related that Somohano knew he was a resident alien but was not a United States citizen. Defendant conceded that during all his conversations with Somohano, even though defendant was aware of his immigration status, he never asked the attorney "whether or not [his] status as a resident [alien] would be affected if [defendant] were to be found guilty." He reiterated that at no time during Somohano's representation did the subject of immigration or deportation ever come up.

Defendant also admitted he filled out the plea agreement with the assistance of Somohano in November 2007, but claimed not to remember answering question #17 dealing with potential deportation. In answering Judge Falcone's questions, defendant claimed that in neither of his two prior arrests that resulted in criminal proceedings in the Superior Court (2006 and the current charge), did either attorney mention immigration or deportation consequences.

Somohano testified he and defendant conversed in Spanish, which Somohano speaks fluently, as it was his first language. He met repeatedly with defendant, who always appeared to comprehend what was being related to him. Somohano was aware defendant was from the Dominican Republic, and thus the topic of immigration or the prospect of deportation came up. The attorney expressly told defendant he could not give him advice about the immigration consequences but the plea would likely result in immigration issues for him, and absolutely did not tell defendant he would not be deported if he pled guilty to the charge. Somohano explained:

I specifically remember one conversation . . . where I advised [defendant] that I was his state criminal attorney and not his federal immigration attorney, and that I could not guarantee him any results in the federal level, that I would do my best to limit his exposure in the federal level with the charges here in the state. However, I did not feel I can adequately represent him in the state level trying to avoid issues for him on the federal level.

. . . .

What I mean is that sometimes my clients . . . are more concerned with the immigration ramifications than the actual ramifications of the state plea, and as I advised . . . [defendant] in this case, I cannot worry about an immigration issue possibly being created by a state plea if, in fact, I believe the state plea is in my client's best interest.

Ultimately, . . . my office[] was retained by [defendant] to take into account and squarely address his state criminal problems and not his federal immigration issues.

[Direct]: At any time did you ever advise [defendant] that he would not be deported if he were to plead guilty to the charges?

A. Absolutely not.

Q. Did you advise him of anything one way or the other regarding . . . an immigration consequence?

. . . .

A. While I never told [defendant] that he would not have a problem with immigration, and the consequence stemming from this plea, I advised [defendant] that I was not an immigration attorney and that I cannot give him that advice. I limited my advice to him based on the discovery, on the facts of this case, and on the decision in this case only.

[(Emphasis added).]

Somohano further explained he reviewed the bilingual plea form with defendant question-by-question. Somohano read the document to defendant in Spanish, paused for any questions or concerns, and only after defendant gave his answer, did Somohano specifically put it down on the form. Somohano reiterated that they discussed immigration both because of question #l7 and in general. He related that defendant had no pause or concern about that question or the immigration issue because defendant's "primary concern" was to avoid the "risk of any state prison [sentence] with an 85 percent parole disqualifier[.]" On cross-examination, Somohano stated he advised defendant that immigration consequences were "going to be a likely circumstance" but limited his advice to the language of question #l7.

In his oral decision on December 2, 2010, Judge Falcone detailed the testimony at the PCR hearing and made an express credibility assessment against defendant, largely because of his conflicting stories. The judge explained:

The defendant's credibility has been in my view significantly affected. He gives a certification dated June 22nd, 2010, in which he states that Mr. Somohano advised him that he "would not be subject to deportation" should he plead guilty. . . .

When he testifies under oath before this Court on October 1st, he testified "the subject of deportation never came up." Clear conflict between those two statements.

I believe, as the Prosecutor offered, that the credibility of [defendant] is further impacted by the plea transcript, his subsequent denial of the charges as set forth in the Avenel Report and then his subsequent reaffirmation of his plea. That's been placed on the record on prior occasions, so I won't recite it ad nauseam again. But I couldn't sentence this defendant the first time it came up because he had denied culpability when he went to Avenel. And there was a hearing in court. He then said no, he was guilty. And again back and forth, back and forth, fast and loose with the truth.

In contrast, the judge credited the detailed testimony of Somohano, noting "[h]e said categorically under oath that he never told this defendant that he would not be deported if convicted; to the contrary, he testified that he couldn't give advice involving immigration issues and that he told that to [defendant]." The judge found Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) and State v. Nu ez-Vald z, 200 N.J. 129 (2009) to be distinguishable from the present facts as Somohano did not give incorrect legal advice or misinform defendant as to the consequences of deportation.

Judge Falcone noted that based on the plea colloquy, he had been satisfied defendant "knowingly, intelligently, as well as voluntarily executed the plea form" and entered a plea of guilty. Based on the testimony and evidence presented at prior proceedings, as well as the evidentiary hearing, Judge Falcone was satisfied Somohano was credible, he "never stated that deportation was never going to happen[,]" and "he in fact did mention immigration ramifications to [defendant]." In contrast, he did not find defendant "to be credible at all based on the information [the judge] placed on the record earlier." Accordingly, the judge found defendant failed to demonstrate trial counsel was ineffective under the first prong of Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984) (holding that to establish ineffective assistance of counsel, a defendant must satisfy a two-prong test, the first prong being that counsel's performance was deficient, i.e., his or her acts or omissions fell outside the wide range of professional competent assistance considering all of the case's circumstances). This appeal ensued.

Defendant renews his arguments on appeal. Defendant argues the PCR court erred in distinguishing the two cases, and urges that Samohano's performance was deficient for not informing defendant he would almost certainly be deported if he pled guilty to the charge, which was based on forcing a six-year-old to perform oral sex on him. See 8 U.S.C.A. 1101(a)(43)(A) (defining an "aggravated felony," which is a deportable offense, as including "murder, rape, or sexual abuse of a minor").

Based on our review of the record and applicable law, we are not persuaded by defendant's arguments. "Petitions challenging the entry of guilty pleas prior to Padilla on ineffective assistance of counsel grounds must be assessed under the law as it existed under State v. Nu ez-Vald z, which instead focuses on whether counsel provided false information about the immigration consequences of a guilty plea." State v. Santos, 210 N.J. 129, 143 (2012) (citing State v. Gaitan, 209 N.J. 339, 373-74 (2012)) (internal citation omitted). Defendant's plea was entered in 2008, prior to Padilla, and thus he can only succeed if he demonstrates that counsel provided affirmative misadvice regarding the immigration consequence of his guilty plea. Defendant has failed to carry that burden.

Defendant did not testify in court under oath consistent with the allegations contained in his certification, which the judge noted, and found "significantly affected" his credibility. The testimony of trial counsel during the evidentiary hearing, which Judge Falcone credited, can hardly establish that he gave defendant "affirmative misadvice" regarding the immigration consequences of his guilty plea. There is ample basis in the record for us to defer to the credibility assessments of Judge Falcone, particularly based on his significant familiarity with these proceedings as he was involved from the outset, commencing with the initial plea hearing in 2007. See State v. Marshall, 148 N.J. 89, 186 (1997) (holding that the findings of the PCR judge who addressed the related issue at trial are "entitled to special weight"); State v. Lasane, 371 N.J. Super. 151, 162 (App. Div. 2004) (reiterating that we generally defer to the credibility assessments of a PCR judge following an evidentiary hearing).

1 Defendant had the benefit of an interpreter during all the proceedings.