STATE OF NEW JERSEY v. JACEK BETKOWSKI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6262-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JACEK BETKOWSKI,

Defendant-Appellant.

____________________________________

May 6, 2013

Submitted April 17, 2013 Decided

Before Judges Axelrad and Happas.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-04-1282.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Jacek Betkowski, an undocumented alien, appeals the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant alleged ineffective assistance of trial counsel in failing to apprise him of the immigration consequences of his guilty plea. Because trial counsel was under no duty in 1999 to provide such advice, we reject defendant's argument and affirm.

In April 1999, the grand jury indicted defendant for first-degree attempted murder, N.J.S.A. 2C:11-1 (count one); second-degree attempt to cause bodily harm, N.J.S.A. 2C:12-1b(1) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); and third-degree unlawful possession of a weapon with intent to cause bodily injury, N.J.S.A. 2C:39-5b (count four). On June 1, 1999 defendant entered a guilty plea to count two, as amended to third-degree aggravated assault, and count three, fourth-degree unlawful possession of a weapon. In exchange, the State agreed to dismiss the remaining two counts and recommend a sentence of three years with no victim contact.

At the plea hearing the court was presented with the plea form containing Question 17, which asked, "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" The circled response was "yes" and there was an asterisk next to it. Defendant acknowledged the plea form was read to him in Polish, he understood what was read to him, his answers were true, and he voluntarily signed the form. Defendant also testified that he discussed the plea form with his attorney and was satisfied with the advice she gave him.

On June 18, 1999, the trial judge applied the presumption against incarceration and sentenced defendant to 174 days time-served in county jail, two years probation, no victim contact, and alcohol counseling. Defendant did not file a direct appeal. Defendant filed his first PCR petition after he was taken into custody by the Immigration and Customs Enforcement Agency. Defendant claimed trial counsel failed to give him correct legal advice on the immigration consequences of his plea and, had he known he would be deported, he would not have pled guilty.1

Following oral argument, the PCR judge issued an oral opinion on February 4, 2011 and a final order on February 7, 2011. He found the petition was time barred since it was filed more than nine years post-judgment with no excusable neglect. Nonetheless, the judge considered defendant's substantive arguments and found each to be lacking in merit.

On appeal defendant argues:

POINT ONE

THE FAILURE OF TRIAL COUNSEL TO ADVISE DEFENDANT THAT AS A RESULT OF HIS PLEA AGREEMENT, HE WOULD BE DEPORTED DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWO

THE FAILURE OF TRIAL COUNSEL AND THE TRIAL COURT TO EXPLAIN THE IMMIGRATION CONSEQUENCES OF DEFENDANT S GUILTY PLEA CAUSED DEFENDANT TO LACK KNOWLEDGE AND UNDERSTANDING OF THE PLEA AGREEMENT, RENDERING HIS PLEA DEFECTIVE, BECAUSE HE NEVER KNOWINGLY WAIVED HIS RIGHT TO A JURY TRIAL.

POINT THREE

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT S REQUEST FOR AN EVIDENTIARY HEARING.

POINT FOUR

THE PCR COURT ERRED BY FINDING THAT DEFENDANT HAD NOT PRESENTED A SUFFICIENT REASON FOR FAILING TO COMPLY WITH THE 5 YEAR FILING REQUIREMENT ESTABLISHED BY R. 3:22-12.

Based on our review of the record and applicable law, we are not persuaded by any of the defendant's arguments. To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient"; that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987).

To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must establish "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" Ibid. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)) (alteration in original).

Whether a PCR hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion. R. 3:22-10; see State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-10(b) states in pertinent part:

A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR], a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.

Additionally, to establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland-Fritz test. See Preciose, supra, 129 N.J. at 463.

Defendant's argument that he was given "incorrect" legal advice when his trial counsel advised him he "may" be deported and not that he "would be" deported is without merit. The key case relied upon by defendant is the United States Supreme Court decision in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). The Supreme Court of the United States has held that defense attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea. Id. at ___, 130 S. Ct. at 1482, 176 L. Ed. 2d at 294.

The Supreme Court of New Jersey reached a comparable, albeit more limited, conclusion in State v. Nunez-Valdez, 200 N.J. 129, 140-43 (2009), holding that it is ineffective assistance for defense counsel to provide misleading advice and misinformation to a defendant about deportation consequences. However, advising a client he or she may be deported is not considered incorrect or deficient legal advice. State v. Brewster, 429 N.J. Super. 387, 397 (App. Div. 2013) (citing Nunez-Valdez, supra, 200 N.J. at 138, 143).

Recently, the United States Supreme Court held that Padilla does not apply retroactively. Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, ___, 185 L. Ed. 2d 149, 155 (2013). In addition, our Supreme Court decided that Padilla is a new rule to be applied prospectively only. State v. Gaitan, 209 N.J. 339, 371-72 (2012). Defendant entered his guilty plea in 1999, therefore he cannot rely upon Padilla in support of his ineffective assistance of counsel claim. State v. Barros, 425 N.J. Super. 329, 332 (App. Div. 2012) (citing Gaitan, supra, 209 N.J. at 372-73, 375-76).

Defendant also argues the court erred in denying him an evidentiary hearing. However, such hearings will not be granted unless a defendant can first establish a prima facie case of ineffective assistance of counsel. Preciose, supra, 129 N.J. at 462. Defendant failed to make such a showing.

The remaining arguments raised by defendant, including his claim that the PCR judge erred by finding that defendant had not presented a sufficient reason for failing to comply with the five year filing requirement established by Rule 3:22-12, lack sufficient merit to be discussed in a written opinion. R. 2:11-3(e)(2).

1 Defendant has failed to demonstrate that he faced mandatory deportation for his guilty plea to aggravated assault.