STATE OF NEW JERSEY v. LILIANA PULIDO October 24, 2014

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05522-12T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LILIANA PULIDO,

Defendant-Appellant.

________________________________________________________________

October 24, 2014

Argued October 15, 2014 Decided

Before Judges Koblitz and Haas.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Accusation No. 03-09-1806.

Guillermo R. Arango, argued the cause for appellant (Guillermo R. Arango, L.L.C., attorneys; Mr. Arango, on the brief).

Deepa S.Y. Jacobs, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Annmarie Cozzi, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Liliana Pulido, a citizen of Colombia, appeals from her June 13, 2013 third-degree conviction of receiving stolen property valued at more than $500. N.J.S.A. 2C:20-7. Defendant pled guilty to the accusation in 2003 and did not appear for sentencing.1 Ten years later, she was extradited to New Jersey and sentenced to a probationary term.2 Defendant argues that the sentencing judge should have advised her at the time of sentencing that she would be deported and given her time to consult with an immigration attorney. We reject this argument and affirm.

At the time of defendant's guilty plea in 2003, the judge asked her if she was a United States citizen and she responded affirmatively. The judge then stated, "The reason I asked that is if . . . you were not, you would have been subject to immigration hearings for deportation and by pleading guilty you may be subject if you're not a citizen to such a deportation proceeding." Defendant also circled "yes" in response to question seventeen on the guilty plea form asking, "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?" At her sentencing hearing the sentencing judge noted that Immigration and Customs Enforcement (ICE) had lodged a detainer against defendant.

Defendant raises the following single issue on appeal

POINT I: THE APPELLANT SHOULD HAVE BEEN ADVISED OF THE DIRECT CONSEQUENCES OF HER PLEA ON HER IMMIGRATION STATUS PRIOR TO BEING SENTENCED.

Although defendant complains about the judge's performance at sentencing, we will review the case law relating to the obligation of defense counsel at the time of a guilty plea, as that is relevant. The standard for competent counsel under State v. Nu ez-Vald z, 200 N.J. 129 (2009), would govern in this matter because defendant's guilty plea was entered before the decision in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and the Padilla standard is not retroactive.3 Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013); State v. Gaitan, 209 N.J. 339, 371-72 (2012).

For petitioners who challenge the entry of a guilty plea prior to Padilla, the Nu ez-Vald z standard explains that the focus should be "on whether counsel provided affirmative misadvice regarding the immigration consequences of a guilty plea." State v. Santos, 210 N.J. 129, 143 (2012) (citing Gaitan, supra, 209 N.J. at 373-74). Under Nu ez-Vald z, to succeed in demonstrating ineffectiveness of counsel, a defendant must demonstrate that his attorney provided false information about the immigration consequences of his guilty plea. Nu ez-Vald z, supra, 200 N.J. at 140-42.

The plea judge had the obligation to inform defendant of the "consequences of the plea." R. 3:9-2. Defendant was not truthful as to her citizenship at her guilty plea, but was nonetheless clearly advised of immigration consequences to the extent required at the time of the plea. Ten years later, the sentencing judge and defense counsel were aware of defendant's immigration status, as ICE had filed a detainer against her. Defendant did not seek to withdraw her guilty plea. Defendant offers no legal precedent requiring it, nor any practical reason, for post-guilty-plea consultation with immigration counsel.

Affirmed.

1 We note that the guilty plea form signed by defendant states in all capital letters, "IF THE DEFENDANT FAILS TO APPEAR FOR SENTENCE, THE STATE RESERVES THE RIGHT TO WITHDRAW FROM THIS NEGOTIATED PLEA AGREEMENT."

2

The presentence report indicates that defendant was also charged criminally in Connecticut, Ohio, and Virginia, although the dispositions of the charges were not recorded.

3 Padilla, which does not apply here, requires defense counsel to discuss a clear deportation issue arising from a guilty plea with the defendant, and the advice given must be correct. Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296.