STATE OF NEW JERSEY v. JULIO C. LUNA

NOT FOR PUBLICATION WITHOUT THE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.

JULIO C. LUNA,

Defendant-Appellant.

____________________________________

January 23, 2014

Submitted January 7, 2014 Decided

Before Judges Fisher and O'Connor.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

08-08-2581.

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

(Sara A. Friedman, Special Deputy Attorney

General/Acting Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

Defendant Julio Luna appeals from an order of the Law Division denying his petition for post-conviction relief. We affirm.

On May 11, 2009, defendant, a permanent resident, pled guilty to theft by unlawful taking, N.J.S.A. 2C:20-3, a disorderly persons offense. Defendant was ordered to pay restitution and mandatory fines and fees. Defendant did not file a direct appeal from the conviction or sentence. It is not disputed that, before and after he pled to the disorderly persons offense, defendant pled guilty to various crimes. The parties did not identify the precise crimes to which defendant pled, mentioning only that the crimes involved theft and "bad checks."

Subsequent to pleading guilty to the disorderly persons offense, the United States Department of Immigration and Customs Enforcement commenced proceedings to remove defendant for having been convicted of crimes of moral turpitude, which qualified him as a "deportable alien" subject to mandatory removal from the United States. See 8 U.S.C.A. 1227 (a)(2)(A)(i). The record does not indicate the convictions the government claims warrant defendant's removal.

On May 11, 2009, defendant filed a verified petition for post-conviction relief alleging ineffective assistance of counsel. Specifically, defendant claims plea counsel failed to advise he would be deported if he pled guilty to the disorderly persons offense. He alleges that had he been properly counseled, he would not have entered a plea but would have proceeded to trial. He now seeks to have the guilty plea set aside. Defendant did not articulate how the plea to the disorderly persons offense causally relates to removal proceedings which were initiated as a result of defendant having committed crimes of moral turpitude, other than to state the plea had a "severe" effect "upon [the] deportation proceedings" and "made things substantially worse."

To establish a case of ineffective assistance of counsel, a defendant must show that, first, the attorney made errors so serious that the attorney was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Second, the defendant must show that counsel's errors were so serious that defendant was deprived of a fair trial. Ibid. A defendant seeking to set aside a guilty plea based on ineffective assistance of counsel must show his attorney's performance was not "'within the range of competence demanded of attorneys in criminal cases' and 'there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty but 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)).

On February 2, 2012, the PCR judge denied defendant's request for relief. On appeal, defendant claims his attorney's failure to advise of the immigration consequences of a guilty plea were contrary to the standards set forth in Nu ez-Vald z and Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).

Nu ez-Vald z held that a defendant meets the first prong of the Strickland test if the attorney renders false or affirmatively misleading advice about the deportation consequences of a guilty plea. 200 N.J. at 140-42. At the time Nu ez-Vald z was decided, an attorney was not required to give any advice about the deportation consequences of pleading guilty; however, if any advice was rendered and it was erroneous or misleading, the first prong of the Strickland test was met.

Within a year Nu ez-Vald z was decided, the United States Supreme Court went further and held in Padilla that the Sixth Amendment obligation to render effective assistance requires criminal defense attorneys to inform clients of the possible immigration consequences of entering a guilty plea. Padilla, supra, 559 U.S. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295. That is, an attorney must now affirmatively provide accurate advice of the deportation consequences of a guilty plea.1 Significantly, our Supreme Court in State v. Gaitan, 209 N.J. 339, 373 (2012), held that, as Padilla established a new rule of law, the holding in Padilla applied prospectively only. Thereafter, the United States Supreme Court reached the same conclusion, finding Padilla did not apply retroactively. Chaidez v. United States, 568 U.S. , , 133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149, 162 (2013).

Here, even if the plea to the disorderly persons offense was a factor that led to the initiation of removal proceedings, defendant did not provide any evidence his attorney failed to adhere to the standard enunciated in Nu ez-Vald z. Specifically, defendant did not provide any evidence his attorney rendered false or affirmatively misleading advice about the deportation consequences of pleading guilty. Rather, according to defendant's verified petition, he did not receive any advice at all from his attorney concerning the deportation consequences of pleading guilty. If the attorney failed to render any advice about the risk of removal before defendant pled guilty, then Padilla is unavailing to him, as he pled guilty before Padilla was decided.

The remaining arguments raised by defendant lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

1 Padilla held that when the deportation consequences of a guilty plea are "unclear or uncertain," an attorney "need do no more than inform a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296.