STATE OF NEW JERSEY v. JOSE ALPIZAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2203-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE ALPIZAR,

Defendant-Appellant.

________________________________________________________________

April 22, 2013

Submitted March 18, 2013 - Decided

Before Judges Fasciale and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-08-0557.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jose Alpizar appeals the Law Division orders dated March 30, 2011 and June 23, 2011, denying his petition for post-conviction relief (PCR). He claims he was deprived of effective assistance of counsel for, among other things, failing to advise of his deportation consequences of a plea. We reject defendant's contentions and affirm.

Defendant has been a legal resident of the United States for over twenty years. He is a native of Costa Rica.

In December 2008, defendant entered into a negotiated plea of guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (count one); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two). He was sentenced to a seven-year sentence for count one, to be served concurrently with a five-year sentence for count two, along with fines, penalties and fees. At his plea hearing, defendant admitted that he digitally penetrated the victim's vagina on several occasions between August 1, 2007 and July 5, 2008. He admitted that these acts were illegal, and that he impaired the morals of a child between the ages of thirteen and sixteen. Defendant did not appeal.

Defendant filed a timely pro se PCR petition alleging defense counsel failed to conduct adequate pretrial investigation and failed to develop a defense. His appointed counsel filed a supporting brief that sought to vacate his guilty plea due to trial counsel's failure to advise defendant of the deportation consequences.

After oral argument, Judge Angela F. Borkowski issued a comprehensive twenty-three-page decision on March 30, 2011, denying in part defendant's ineffective assistance of counsel claims, and deferring other aspects of those claims for disposition after an evidentiary hearing. On the various claims of inadequate trial preparation and preparation of a defense, the judge found that the evidence did not support these claims, including that defendant met with counsel on at least four occasions during which times, she presumed, they discussed defendant's case, and that counsel interviewed persons that defendant suggested. The court rejected defendant's bare assertions that he was pressured to plead guilty, and that counsel failed to challenge the admissibility of his statement to police. The judge applied the Strickland1 analysis and found that defendant failed to demonstrate that counsel's performance fell below an objective standard of reasonableness or that defendant was prejudiced.

On the issue alleging inadequate advice regarding deportation consequences, the judge granted an evidentiary hearing to explore whether counsel was ineffective for failing to advise defendant of the potential immigration consequences of his guilty plea, and whether defendant informed trial counsel that he wished to withdraw his guilty plea prior to sentencing.

On June 23, 2011, a different judge held an evidentiary hearing. The second judge found the two defense attorneys to be credible in their testimony regarding the investigation they conducted and the advice they provided. Counsel testified that they met with defendant, either together or separately, eight times to review discovery, view the police interview video, discuss the possibility of filing a suppression motion, and generally discuss the strengths and weaknesses of the case. Once they received a favorable plea agreement, counsel reviewed the plea form with defendant. They did not perceive that defendant had any communication barriers or that he did not understand the discussions. They both denied that defendant ever asked them to file a motion to withdraw the plea before sentencing. Further, they each testified that they advised defendant that his plea may have ramifications on his immigration status and advised him to speak to an immigration attorney.

Defendant initially asserted and testified that he never had a conversation with his attorneys to discuss deportation concerns but then admitted that they had discussed immigration consequences. He also admitted that he may have first asked to withdraw the plea as he prepared the petition. Additionally, defendant also testified that he lied at the time of the plea when he answered that under Question No. 17(b) he understood that he may be deported by virtue of his guilty pleas.

The judge found many of defendant's responses to be evasive, non-responsive and lacking in credibility. Conversely, the judge found the attorneys to be credible and their consistent testimony established that they performed their duties as expected of criminal defense attorneys. In dismissing the petition and denying defendant's request to withdraw his guilty plea, the judge ruled that the attorneys complied with the law in effect at the time of the pleas and followed the precepts of State v. Telford, 420 N.J. Super. 465 (App. Div. 2011), certif. denied, 209 N.J. 595 (2012), regarding their obligation to advise clients about deportation consequences, and that they did not render ineffective assistance of counsel.

On appeal, defendant raises the following points:

I. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTION AND SENTENCE VACATED BECAUSE TRIAL COUNSEL'S FAILURE TO ADVISE DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS PLEA DEPRIVED DEFENDANT OF HIS CONSTITIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

II. THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTION AND SENTENCE VACATED BECAUSE DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO BE INFORMED ABOUT THE IMMIGRATION CONSEQUENCES OF HIS PLEA BY BOTH THE TRIAL COURT AND BY TRIAL COUNSEL WERE VIOLATED.

III. THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

IV. DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.

A. Defendant Should Be Permitted to Withdraw His Pleas of Guilty.

B. Trial Counsel's Failure to Conduct An Adequate Pretrial Investigation; His Failure to Provide Discovery to Defendant; His Failure to Interview Witnesses; His Failure to File a Motion to Suppress Defendant's Statement; and His Failure to Meet with Defendant[] Resulted in Ineffective Assistance of Counsel.

We are not persuaded by these arguments.

The general standards by which a defendant must prove ineffective assistance of counsel are familiar, and we will not repeat them here. See Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. at 693; State v. Loftin, 191 N.J. 172, 198 (2007); State v. Fritz, 105 N.J. 42, 52 (1987). The United States Supreme Court has extended these principles to the representation provided by a criminal defense attorney to an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ____, ____, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ____, ____, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ____, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

We turn first to defendant's claims of inadequate trial preparation. The first PCR judge carefully considered all of defendant's contentions and based her ruling on a comprehensive review of the pretrial proceeding record and the plea hearing. After conducting the Strickland two-prong analysis, Judge Borkowski concluded that defendant had not established a prima facie case of ineffective assistance of counsel and denied that portion of the petition. We agree with that conclusion and affirm substantially for the reasons stated in her March 30, 2011 written opinion.

We now address the claims that were the subject of the evidentiary hearing and defendant's argument that Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), is retroactively applicable to this case. Upon a careful review of the case law in existence prior to Padilla and its progeny, we conclude that defendant's claims have no merit. We affirm the denial of the PCR petition and request to vacate the guilty plea for the reasons stated by Judge Pursel in his well-reasoned June 23, 201l2 oral decision. We add only the following to address the applicability of the rule of law established in Padilla.

In State v. Nunez-Valdez, 200 N.J. 129, 143 (2009), our State Supreme Court held that a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from "inaccurate information from counsel concerning the deportation consequences of his plea." The Court focused on "false or misleading information" from counsel as establishing the violation of the defendant's constitutional rights. Id. at 138.

Later, in Padilla, supra, 559 U.S. 356 at ____, 130 S. Ct. at 1486, 176 L. Ed. at 299, the United States Supreme Court held that an attorney's failure to advise a non-citizen client of the immigration risks attendant on pleading guilty was ineffective assistance of counsel. By extending counsel's duty beyond rendering incorrect advice, the Court declared that counsel has an affirmative duty to inform a defendant when a guilty plea will result in deportation, at least where the relevant law pertaining to mandatory deportation is "succinct, clear, and explicit." Id. at ____, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295.

In State v. Gaitan, 209 N.J. 339, 372 (2012), cert. denied, Gaitan v. New Jersey, ___ U.S. ___, ___ S. Ct. ___, 185 L. Ed. 361 (2013), our Supreme Court held that "Padilla is not entitled to retroactive application" on collateral review. Recently, in Chaidez v. United States, ___ U.S. ____, ____, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013), the United States Supreme Court reached the same result.

Here, defendant's claim of attorney error under Padilla is foreclosed because his conviction became final in 2009, before Padilla was decided. Consequently, the higher duty of attorney conduct established in Padilla does not apply in this case. "Only if defendant's attorney affirmatively gave incorrect advice about the deportation consequences of his guilty plea might he be entitled to set aside his conviction in accordance with the holding in Nunez-Valdez." State v. Brewster, 429 N.J. Super. 387, 394-95 (App. Div. 2013). Even under these less stringent requirements, we conclude that counsel did not render misleading or incorrect advice to defendant.

We affirm the orders on appeal.

1 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80

L. Ed.2d 674 (1984).

2 The request to vacate the guilty plea is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).