STATE OF NEW JERSEY v. MARIO VALENCIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3151-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARIO VALENCIA,

Defendant-Appellant.

___________________________________

March 5, 2013

 

Submitted January 23, 2013 - Decided

 

Before Judges Alvarez and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 08-10-0819 and 08-02-0099.

 

Arturo S. Suarez-Silverio, attorney for appellant.

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

 

PER CURIAM

Defendant Mario Valencia appeals the Law Division's January 25, 2011 order dismissing his petition for post-conviction relief (PCR). We affirm.

 

I.

We discern the following facts and procedural history from the record on appeal.

Valencia, a citizen of Ecuador,1 was charged in separate indictments, returned in February and October 2008, with drug offenses.2 On July 7, 2009, Valencia accepted a "global" plea agreement that required him to plead guilty to third-degree possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35-10(a)(1), third-degree attempt to possess a controlled dangerous substance, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:35-10(a)(1), and the disorderly persons offense of possession of marijuana, contrary to N.J.S.A. 2C:35-10(a)(4). In exchange, the State agreed to recommend an aggregate sentence of a probationary term with the special condition that Valencia serve 270 days in the Somerset County jail. A remaining count, third-degree conspiracy to possess a controlled dangerous substance, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-10(a)(1), was to be dismissed at sentencing. Valencia entered the plea and gave a factual basis for each offense. There was no discussion of his immigration status during the plea colloquy. Valencia was subsequently sentenced in accordance with the plea agreement.

Valencia was deported from the United States in August 2010. In May, prior to his deportation, Valencia had filed a PCR petition, contending that he received constitutionally ineffective assistance of counsel with respect to the immigration consequences of the plea agreement. Valencia certified that he would not have accepted the plea offer had he known that it would result in deportation. Although the plea judge initially dismissed the petition based upon the fact of deportation, he subsequently reinstated it and scheduled a hearing.

Another judge presided over the evidentiary hearing on January 20, 2011. Michael J. Rogers, Valencia's defense attorney, testified about his representation and specifically about his discussion of immigration issues with Valencia. According to Rogers, Valencia was concerned about the immigration implications of the charges against him. Rogers advised him to consult with an immigration attorney because he "felt that [an] immigration attorney would be in a better position to advise him about the consequences of the plea in a criminal case." However, he told Valencia that he "might be deported because of a plea or a finding of guilt."

Rogers testified that he subsequently heard from the immigration attorney consulted by Valencia. She asked him to try to get the conspiracy charge dismissed because, "[f]rom her perspective as an immigration lawyer, that would have been a huge benefit to the client to help keep the client here and not be deported." Rogers testified that, although the Somerset County Prosecutor rarely agreed to negotiate charges, as opposed to negotiating sentences, he succeeded in having dismissal of the conspiracy charge made part of the plea agreement.

Rogers testified that he never told Valencia that the dismissal of the conspiracy count would result in his not being deported. He informed Valencia that in his opinion, Valencia's chances of prevailing at trial were "[n]egligible." Rogers' understanding from the immigration attorney was that "the chances would be much greater of his being deported if he went to trial and lost, particularly because of the conspiracy charge." Rogers so advised Valencia. Finally, Rogers testified that Valencia never told him that he would not accept the plea offer if doing so would result in deportation.

Following the testimony and argument, the PCR judge delivered an oral decision determining that Rogers had acted appropriately in urging Valencia to consult an immigration attorney. He dismissed the petition, and entered the implementing order a few days later. This appeal followed.

II.

Valencia raises the following issue on appeal:

POINT I: AN ALIEN WHO PLEADS GUILTY IN RELIANCE [ON] HIS CRIMINAL DEFENSE COUNSEL'S ERRONEOUS ADVICE THAT A PLEA TO A CHARGE OF ATTEMPTED POSSESSION OF COCAINE IS MORE BENEFICIAL FOR IMMIGRATION PURPOSES THAN A PLEA TO A CHARGE OF CONSPIRACY TO POSSESS COCAINE IS A VICTIM OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER OUR STATE CONSTITUTION AND UNDER THE CONSTITUTION OF THE UNITED STATES.

 

Valencia argues that the advice conveyed from his immigration attorney through Rogers was incorrect. He points to the fact that 8 U.S.C.A. 1227(a)(2)(B)(i), which provides that an alien is deportable if convicted of a drug offense (other than single possession for personal use of thirty grams or less of marijuana), does not distinguish between conviction for a completed offense and conviction for conspiracy or attempt to commit an offense. He also notes that the definition of "aggravated felony," a separate class of deportable offenses, does not distinguish between completed and inchoate offenses. 8 U.S.C.A. 1101(a)(43)(U), 1227(a)(2)(A)(iii).

To establish a right to post-conviction relief in the context of a plea agreement, a defendant must demonstrate that his or her counsel rendered ineffective assistance, and "there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial." State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)) (internal quotation marks omitted). In State v. Gaitan, 209 N.J. 339, 374-75 (2012), our Supreme Court reaffirmed the holding in Nu ez-Vald z that an attorney who affirmatively misinforms a client about the immigration consequences of a guilty plea renders ineffective assistance.

In Padilla v. Kentucky, 559 U.S. 356, ___, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 229 (2010), 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 (as opposed to affirmatively giving incorrect advice) was also ineffective assistance of counsel. In Gaitan, supra, 209 N.J. at 372, our Supreme Court held that "Padilla is not entitled to retroactive application" on collateral review. In Chaidez v. United States, 81 U.S.L.W. 4112 (U.S. Feb. 20, 2013), the United States Supreme Court reached the same result. Consequently, Padilla is not applicable in this case.

However, the Court in Gaitan, supra, 209 N.J. at 373-74, preserved a defendant's right, on a PCR petition, to raise a claim that the attorney rendered affirmative, incorrect advice:

That said, although Padilla will not apply retroactively, Nu ez-Vald z still governs the standard of attorney performance in New Jersey in ineffective assistance of counsel claims on collateral review. Thus, if either of the PCR applicants in the present appeals presents a claim showing that he was provided with false and affirmatively misleading advice when entering his plea, then the standard of performance expected of counsel may have been breached.

 

In this case, Rogers told Valencia that he "might be deported because of a plea or a finding of guilt." Because he had no expertise in immigration law, Rogers advised Valencia to consult an immigration attorney, which Valencia did. That attorney contacted Rogers and advised him that it would be a "huge benefit" to Valencia for the guilty plea not to include a charge of conspiracy.3 Rogers conveyed that information to Valencia. There was, however, no representation by Rogers that Valencia would not be deported. We are satisfied that, having warned Valencia that a plea or finding of guilt could lead to deportation, having advised him to consult an immigration attorney, and having implemented the advice given by that attorney, Rogers' representation of Valencia was not constitutionally ineffective.

However, even if Rogers was ineffective, we conclude that Valencia has failed to satisfy the second prong of the test established in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), which requires a defendant to demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Rogers testified that Valencia's second arrest was the result of "a very large wiretap investigation" and that Valencia "allegedly was seen and observed by undercover officers purchasing drugs from one of the main targets of the investigation." Rogers assessed Valencia's chances of prevailing at trial as "negligible." Consequently, there was no reasonable probability that, had Valencia not pled guilty, he would have avoided conviction and the resulting deportation.

F

or the reasons outlined above, we affirm the order on appeal.

Affirmed.

1 According to the pre-sentence report and the sentencing transcript, Valencia was in the United States legally. At the PCR hearing, his former defense attorney testified that he was not legally in the country.

2 Valencia had been admitted to pretrial intervention (PTI) on the first indictment when crimes alleged in the second indictment were committed. As a result of the second indictment, PTI was terminated and the charge in the first indictment was reinstated.

3 The record does not address the issue of whether the advice given by the immigration attorney was completely wrong, or whether there might have been a benefit to avoiding a conspiracy plea in some cases, but not Valencia's.