STATE OF NEW JERSEY v. EDUAL GARCIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDUAL GARCIA,

Defendant-Appellant.

_______________________________

Submitted April 17, 2013 Decided

Before Judges Grall and Simonelli.

On appeal from Superior Court of New

Jersey, Law Division, Morris County,

Indictment No. 05-04-0467.

Edual Garcia, appellant pro se.

Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Reema Sethi Kareer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Edual Garcia appeals the denial of his petition for post-conviction relief. His conviction is based on a guilty plea entered in 2006.

We do not state the procedural history or facts of the case because the record on appeal does not permit it. We do not have the indictment, judgment of conviction or a transcript of the plea or sentencing proceeding. The only documents in the appendices filed by defendant and the State are: the plea form defendant signed on June 15, 2006; his notice of motion for relief pursuant to Rule 3:22 and a supporting brief and affidavit, all of which are unsigned; the April 24, 2012 order denying relief and the statement of reasons accompanying it; and the notice of appeal from that order.

Defendant argues:

COUNSEL'S FAILURE TO ADVISE APPELLANT OF THE MANDATORY DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA CONSTITUTES PRIMA FACIE INEFFECTIVE ASSISTANCE OF COUNSEL UNDER PADILLA V. KENTUCKY, AND COUNSEL'S GROSS MISINFORMATION REGARDING APPELLANT'S EXCLUSION FROM DEPORTATION PROCEEDINGS BASED UPON HIS MARRIAGE TO A U.S. CITIZEN RENDERS APPELLANT'S GUILTY PLEA INVOLUNTARY.

Despite the blatant deficiencies in the record, it is adequate to permit us to conclude that the issues raised here do not warrant reversal of the order denying relief. The affidavit defendant submitted to the trial court in support of his petition includes five paragraphs asserting pertinent facts:

3. . . . I asked my attorney . . . would I be deported if I plead guilty, after being a [p]ermanent [r]esident for 18 years, with a nine year old son. His advice to me was:

[h]e was not an immigration lawyer therefore he could not properly advise me on that matter, but there was [a] possible chance that I might be.

4. If I had known about the mandatory deportation consequences of my guilty plea, prior to my pleading guilty, I would have insisted on going to trial.

5. My nine year old son was and remains a citizen and was born in the United States.

6. If I had known that the consequences of my plea guaranteed deportation and separation from my son, I would never have pleaded guilty.

7. Attorney['s] failure to advise me about the mandatory deportation consequences of my plea, denied me the opportunity and right to make a knowing, voluntary and intelligent plea.

In signing the plea form in June 2006, defendant acknowledged that he understood he could be deported by virtue of his plea if he was not a U.S. citizen.

In Padilla v. Kentucky, 559 U.S. 356, ___, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 296 (2010), the United States Supreme Court held "that when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear." But since Padilla, the Court has held that the rule established in that case has no retroactive application. Chaidez v. United States, 568 U.S. ___, ___, 133 S. Ct. 1103, 1107, 185 L. Ed. 2d 149, 155 (2013); accord State v. Gaitan, 209 N.J. 339, 373-74

(2012), cert. denied, 568 U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Thus, defendant, who acknowledges pleading guilty in 2006, cannot invoke Padilla.

The second claim defendant raises on appeal that his attorney misinformed him about deportation is contradicted by the affidavit defendant submitted in the trial court. In that affidavit defendant stated that the attorney told him there was a "possible chance" of deportation and cautioned defendant that he could not properly advise him about deportation.

In State v. Nu ez-Vald z, 200 N.J. 129, 139-43 (2009), the New Jersey Supreme Court held that a defendant established ineffective assistance of counsel entitling him to vacate a guilty plea by: 1) proving that his attorney wrongly advised him that he would not be deported as a consequence of the plea; and 2) demonstrating that he would not have pled guilty if he had known he would be deported. In that case, the trial court found that the attorneys advised the defendant "that his immigration status would not be affected by a decision to plead guilty," id. at 141, and it found that defendant "would not have pled guilty if he had known he would be deported." Id. at 143. Accepting those findings, the Court reinstated the trial court's order directing withdrawal of the guilty plea the defendant would not

have entered but for the misinformation the attorneys conveyed. Ibid.

Defendant's affidavit does not present a prima facie showing of entitlement to relief under Nu ez-Vald z. As noted above, he did not assert that he was told he would not be deported and admitted his attorney told him deportation was a possible consequence. Moreover, he acknowledged that the attorney cautioned that he could not properly advise defendant on immigration law. His claim of deficient performance that his lawyer did not tell him deportation was certain depends on Padilla, which does not apply.1

The order denying post-conviction relief is affirmed.

1 In his recitation of the facts in his brief on appeal, defendant makes an additional allegation that his attorney told him he would not be deported if he were married to a United States citizen. That factual assertion was not before the trial court, and it is wholly unsupported by any competent evidence in the record.

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