STATE OF NEW JERSEY v. LEANDRO NERYS

NOT FOR PUBLICATION WITHOUT THE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.

LEANDRO NERYS,

Defendant-Appellant.

___________________________________________

February 12, 2014

Submitted November 6, 2013 Decided

Before Judges Messano and Hayden.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-10-1164.

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 Leandro Nerys, a resident alien and citizen of Brazil, appeals from the July 6, 2012 Law Division order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

The record reveals that on October 16, 2006, defendant pled guilty to third-degree possession of a controlled dangerous substance (CDS) with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7. The charges stemmed from defendant's arrest in Newark while in possession of forty-three tablets of Ecstasy within 1000 feet of the Wilson Avenue School.

Question seventeen of defendant's plea form 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?" Defendant circled yes. Defendant answered all the questions, initialed the bottom of each page, and signed the plea form.

At the plea hearing, defendant provided a factual basis for the guilty plea. Defendant also acknowledged his signature on the plea forms and stated that he understood their contents. The judge found that defendant entered his plea knowingly and voluntarily. Neither defendant, trial counsel, or the plea judge discussed any immigration consequences of defendant pleading guilty. On February 20, 2007, the judge sentenced defendant to three years of probation, as recommended by the State as part of the plea agreement. Defendant did not appeal his sentence.

Subsequently, defendant was subjected to federal deportation proceedings based upon this conviction as his offense constituted an aggravated felony allowing for removal.1 As a result, on June 7, 2011, defendant filed a pro se petition for PCR seeking to vacate his plea.

In his petition, defendant asserted that he received ineffective assistance of plea counsel because he was not properly advised of the immigration consequences of deportation resulting from a guilty plea, he was pressured into taking the plea in order to be released from custody, and he would not have entered into the plea agreement if he had known the immigration consequences. Defendant also filed a supplemental certification asserting that, based on counsel's advice, he pled guilty to the charge even though he was innocent in order to be sentenced to probation, and he never expected he would be deported.

Defendant's appointed counsel filed a supplemental letter brief which raised the following contentions:

POINT I: PETITIONER'S PETITION FOR POST-CONVICTION RELIEF SHOULD NOT BE TIME BARRED.

A. Petitioner's Delay in Filing His Petition for Post-Conviction Relief Is Not Prejudicial to the Prosecution.

B. The Importan[ce] of Petitioner's Claims Manifest Good Cause to Relax the Time Bar.

POINT II: PETITIONER IS ENTITLED TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND THE CONDUCT OF DEFENSE COUNSEL WAS INEFFECTIVE.

A. Defense Counsel [] Was Ineffective in Failing to Advise Petitioner of the True Immigration Consequences of Petitioner's Guilty Pleas.

POINT III: PETITIONER SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA ON ACCUSATION 06-10-1164 AND HAVE THE MATTER REMANDED FOR A NEW TRIAL.

POINT IV: PETITIONER MAINTAINS AND INCORPORATES BY REFERENCE ALL ARGUMENTS PREVIOUSLY PRESENTED IN PETITIONER'S PETITION FOR POST-CONVICTION RELIEF AND IN THE PRO-SE BRIEF ATTACHED WITH PETITIONER'S PETITION FOR POST-CONVICTION RELIEF WITH REGARD TO ACCUSATION 06-10-1164.

On July 6, 2012, Judge Martin Cronin heard oral argument on defendant's PCR petition and denied relief. The judge determined that defendant failed to establish a prima facie claim of ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). The judge further determined that defendant did not demonstrate a reasonable likelihood of success that would warrant an evidentiary hearing under State v. Preciose, 129 N.J. 451, 462-64 (1992).

Citing State v. Gaitan, 209 N.J. 339, 375-76 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013), the judge determined that question seventeen on the plea form provided defendant with sufficient notice of his potential deportation, and counsel's failure to give any advice regarding deportation did not support a claim of ineffective assistance under first prong of the Strickland test. Furthermore, the judge noted that defendant's pre-sentence report expressly advised defendant that his conviction would be reported to the federal government for possible deportation proceedings, and defendant acknowledged reviewing the contents of the report through counsel at the sentencing proceeding.

The judge also determined that, similar to the defendant in Gaitan, supra, 209 N.J. at 378-79, defendant's pro se filings demonstrated that his primary concern in negotiating the plea was his release from custody. The judge found that defendant's belated and bald assertions that "but for" counsel's failures, he would have rejected the plea, were insufficient to show prejudice as required by the second prong of the Strickland test.

The judge also denied defendant's request to withdraw his guilty plea after considering the factors set forth in State v. Slater, 198 N.J. 145, 157-58 (2009). This appeal followed.

On appeal, defendant raises the following contentions for our consideration:

POINT I: THE PCR COURT ERRED WHEN IT FAILED TO CONDUCT AN EVIDENTIARY HEARING REGARDING TRIAL COUNSEL'S FAILURE TO ADVISE THE DEFENDANT ABOUT THE IMMIGRATION CONSEQUENCES OF HIS PLEA.

POINT II: 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.

We begin with a review of the legal principles that guide our analysis. Both the United States Constitution and New Jersey Constitution guarantee the right of assistance of counsel to every person accused of a crime. U.S. Const. amend. VI; N.J. Const. art. I, 10. This right to assistance of counsel "encompasses the right to effective counsel." State v. Norman, 151 N.J. 5, 23 (1997).

Claims of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

This standard also applies in the context of guilty pleas, where attorney competence is required, and the prejudice prong "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); see also State v. DiFrisco, 137 N.J. 434, 457 (1994) (requiring a reasonable probability that defendant would have refused to plead guilty and insisted on trial), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S. __, __, 132 S. Ct. 1376, 1397, 182 L. Ed. 2d 398, 410 (2012); State v. Agathis, 424 N.J. Super. 16, 19 (App. Div. 2012).

A petitioner must establish the right to relief by a preponderance of the evidence. Preciose, supra, 129 N.J. at 459. "[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and the court must view the facts alleged in the light most favorable to the petitioner. Ibid.

A defendant is generally entitled to an evidentiary hearing if he or she makes a prima facie showing of entitlement to such relief by demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 463), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). However, an evidentiary hearing need not be granted where the "defendant's allegations are too vague, conclusory, or speculative[.]" Ibid. (citing Preciose, supra, 129 N.J. at 462-64); see also State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998) (citing Preciose, supra, 129 N.J. at 460), certif. denied, 158 N.J. 72 (1999).

After reviewing the record in light of the applicable law, we conclude that defendant's arguments are without sufficient merit to warrant a lengthy discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Cronin in his oral opinion of July 6, 2012. We add the following comments.

As to the first Strickland prong, defendant alleges that his counsel was deficient for failing to advise him that his guilty plea would result in a mandatory deportation, failing to address the deportation issue at the plea hearing, and giving "affirmative misadvice" by signing the plea form indicating that defendant "may" be deported.

Counsel's alleged deficiencies did not amount to ineffective assistance at the time defendant's plea was entered in 2007. It was not until March 31, 2010, that the United States Supreme Court held in Padilla v. Kentucky, 559 U.S. 356, 368, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 295 (2010), that plea counsel has an affirmative duty to inform a defendant entering a guilty plea of the mandatory deportation consequences when such are "succinct, clear, and explicit[.]" This affirmative obligation imposed by Padilla announced a new rule of law, and "defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding." Chaidez v. United States, 568 U.S. ___, ___, 133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149, 162 (2013); see also Gaitan, supra, 209 N.J. at 367 (holding Padilla was not retroactive). Thus, given the prevailing professional standards at the time of the plea, counsel's failure to give any advice regarding deportation did not support a claim of ineffective assistance. See State v. Brewster, 429 N.J. Super. 387, 397 (App. Div. 2013).

By proving that his or her guilty plea was a result of "inaccurate information from counsel concerning the deportation consequences of his plea," a defendant can establish ineffective assistance of counsel. State v. Nu ez-Vald z, 200 N.J. 129, 143 (2009). However, the Court's decision in Nu ez-Vald z, which mandated a revision of question seventeen to clarify deportation issues, "does not render as misadvice the information that was provided to [a defendant] through the [prior] plea form, nor [does] the revised plea form vest further rights in [a defendant] or others who seek to have their pleas reviewed collaterally." Gaitan, supra, 209 N.J. at 375-76. Thus, we reject defendant's contention that his attorney's signature on the plea form constituted affirmative misadvice.

Defendant also argues that Judge Cronin erred by denying him an evidentiary hearing. However, such hearings will not be granted absent a prima facie claim of ineffective assistance under Strickland by showing a reasonable likelihood that defendant will ultimately prevail on the merits of that claim. Marshall, supra, 148 N.J. at 158. Defendant failed to make such a showing. Even accepting defendant's factual assertions as true, he has still failed to establish a prima facie case that would warrant relief. See Pyatt, supra, 316 N.J. Super. at 51 (citing Preciose, supra, 129 N.J. at 460).

Furthermore, after considering the factors as set forth in Slater, Judge Cronin correctly found no basis to allow defendant to withdraw his guilty plea. In determining whether to allow withdrawal of a guilty plea, the court must consider: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Slater, supra, 198 N.J. at 157-58 (citing United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2002)).

In the instant case, Judge Cronin properly determined that defendant offered no proof in support of the necessary factors that would permit a withdrawal of his plea. Based on defendant's admission of guilt in the factual basis of his plea, his admission on the plea form, and his acknowledgment of guilt on the pre-sentence report, defendant failed to assert a colorable claim of innocence and failed to establish that his plea was not entered knowingly and voluntarily. The judge properly determined that defendant's ineffective assistance of counsel claim was not a meritorious basis for withdrawal of his plea, and that withdrawal at this late stage would prejudice the State.

1 An alien who is convicted of an "aggravated felony" is subject to removal from the United States. 8 U.S.C.A. 1227(a)(2)(A)(iii).