STATE OF NEW JERSEY v. JOSE POLANCO

NOT FOR PUBLICATION WITHOUT THE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.

JOSE POLANCO,

Defendant-Appellant.

January 24, 2014

Submitted January 14, 2014 Decided

Before Judges Alvarez and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-05-0616.

Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).

Camelia M.Valdes, PassaicCounty Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jose Polanco, a citizen of El Salvador, appeals from a June 28, 2011 Law Division order, denying his petition for post-conviction relief (PCR). On appeal, defendant argues:

POINT I

THE PCR COURT ERRED IN RULING THAT THE FAILURE OF TRIAL COUNSEL TO ADVISE MR. POLANCO THAT DEPORTATION WAS A MANDATORY CONSEQUENCE OF HIS PLEA DID NOT DEPRIVE MR. POLANCO OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE PCR COURT ERRED WHEN IT DENIED MR. POLANCO'S PETITION WITHOUT HOLDING AN EVIDENTIARY HEARING.

Following our consideration of these arguments in light of the record and applicable law, we affirm.

A Passaic County grand jury returned an indictment charging defendant with two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (counts one and two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four). On June 27, 2007, defendant entered a negotiated guilty plea to counts one and four, in return for the State's recommendation of a maximum 364 days imprisonment as a condition of a probationary sentence.

During the plea colloquy, Judge Raymond A. Reddin asked defendant whether he was a citizen of the United States, to which he replied "No," and that he was from El Salvador. The following exchange then ensued between the judge and defendant:

Q. You're not a citizen of the United States. Do you understand that by pleading guilty you may be deported?

A. Yes

Q. Knowing that, do you still want to plead guilty?

A. Yes.

Question seventeen of the plea form completed by defendant also asked, "Do you understand that if you are not a United States citizen or national, you may be deported by your plea of guilty?" Defendant answered "Yes" to this question.

Upon further questioning, Judge Reddin determined defendant fully understood his rights and waived them, and that he reviewed the plea form, found the answers to be true, and signed and initialed its pages. In accepting defendant's guilty plea, the judge further specifically found that "he is not a citizen of the United States. He may be deported as a result of his plea. He wants to plead guilty anyway."

Defendant was sentenced on July 20, 2007, to a five-year term of probation, with a credit for 244 days of time served. Defendant was also ordered to have no contact with either victim. Defendant did not file a direct appeal.

In January 2011, defendant filed a PCR petition contending that he received ineffective assistance of counsel because he was not advised that deportation was mandatory if he pled guilty. Defendant further asserted that had he known he would be deported, or that deportation was mandatory, he would not have entered the plea.

Judge Reddin heard oral argument on defendant's PCR petition on June 28, 2011. PCR counsel also elicited the following testimony from defendant during the hearing:

Q. Mr. Polanco, did you and your attorney, [], discuss deportation?

A. No.

Q. You - - you are here because of the deportation issue. She never discussed the issue of deportation with you?

A. No. Not about that.

Q. Either one of you spoke about deportation?

A. Yes, she did.

Q. What did she tell you about deportation?

A. She did not tell me that if I pled guilty, I was going to get deported. She never told me that.

Q. What did she tell you [] would happen if you plead guilty?

A. That perhaps I could get deported, she said.

Q. So why did you plead guilty?

A. Because I was sick. I was suffering from asthma, and I was desperate.

Q. Would you have pled guilty had you known that you would be facing mandatory deportation?

A. No. I would have rather gone to trial.

The judge then denied the PCR petition in a comprehensive oral decision supplemented by a written opinion. This appeal ensued.

The Sixth Amendment of the United States Constitution assures a person accused of a crime the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the general two-part test enunciated in Stricklandby demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

The United States Supreme Court has extended these principles to the representation provided by a criminal defense attorney to a defendant 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 establish with "reasonable probability" that the result in his case 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). Hence, in the present context involving a negotiated plea agreement, in order for defendant to obtain relief based on ineffective assistance grounds, he must show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency, there is a reasonable probability that he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 208-10 (1985); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

As to the first prong of deficient performance, defendant alleges that his plea counsel failed to advise him that deportation was a mandatory consequence of his conviction. That alleged failure did not amount to ineffective assistance of counsel under the Sixth Amendment, at the time that defendant's plea was entered and when he was sentenced in 2007. It was not until March 31, 2010, that the United States Supreme Court held in Padilla v. Kentucky, 559 U.S. 356, 373-74, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 298-99 (2010), that plea counsel's failure to advise a defendant of mandatory deportation consequences from a conviction could represent deficient performance in violation of a defendant's constitutional rights.

It is settled that the more stringent advice obligations concerning deportation recognized in Padilla do not apply retroactively. See Chaidez v. United States, 568 U.S. ___, ___, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013); State v. Gaitan, 209 N.J. 339, 367 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Defendant cannot seek refuge in the holding of Padilla with respect to his plea counsel's alleged failure to advise him that his deportation would be mandatory. As Judge Reddin correctly ruled, given the prevailing professional standards and the state of immigration law at the time, advising defendant as to the possibility of deportation, even if deportation was probable, was not deficient legal advice. See State v. Brewster, 429 N.J. Super. 387, 397 (App. Div. 2013) (citing State v. Nu ez-Vald z, 200 N.J. 129, 138 (2009)).

In the present case, Judge Reddin appropriately considered the PCR as a claim of ineffective assistance of counsel and as an application to withdraw defendant's guilty plea. Considering the factors set forth in State v. Slater, 198 N.J. 145 (2009), Judge Reddin correctly found no basis to allow defendant to withdraw his guilty plea. The judge determined that defendant did not establish a colorable claim of innocence, that his ineffective assistance of counsel argument was not a meritorious basis to withdraw his plea, that he benefited from the plea agreement negotiated by counsel, and that withdrawal of the plea at this late stage would prejudice the State.

Defendant also argues that the PCR judge erred in denying him an evidentiary hearing. However, such hearings will not be granted unless a defendant has presented a prima facie claim of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462-64 (1992). Defendant failed to make such a showing. Moreover, the court allowed defendant to testify at the PCR hearing. Even accepting defendant's testimony as true, it still failed to establish a prima facie case, and the judge correctly ruled that no further testimony was needed.