STATE OF NEW JERSEY v. PEDRO GOMES MICHEL

NOT FOR PUBLICATION WITHOUT THE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-Appellant,

v.

PEDRO GOMES MICHEL,

Defendant-Respondent.

March 28, 2014

Submitted March 18, 2014 Decided

Before Judges Alvarez and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Union County, Accusation No. 03-02-00173.

Grace H. Park, Acting Union County Prosecutor, attorney for appellant (Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

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

PER CURIAM

Pursuant to leave granted, the State appeals from a July 12, 2013 order granting defendant Pedro Gomes Michel's petition for post-conviction relief (PCR) and allowing him to withdraw his 2003 guilty plea, following an evidentiary hearing. We affirm.

Briefly summarizing, defendant was arrested on November 19, 2002, and on February 6, 2003 pled guilty to an accusation charging him with third-degree distribution of heroin, N.J.S.A.2C:35-5(a)(1). He was sentenced on August 15, 2003 to three years probation, conditioned on 180 days incarceration.

In November 2009, defendant filed for PCR, claiming that he had been misinformed about the immigration consequences of his plea. After his petition was denied without an evidentiary hearing, defendant appealed, and in an unpublished decision the panel remanded for an evidentiary hearing. Statev.Michel,A-4359-10 (App. Div. September 14, 2012) (slip op. at 17). Specifically, the panel found that defendant established a prima facie case of ineffective assistance of counsel, based on his claim that defense counsel did not discuss his immigration status with him before entering the plea, in conjunction with: (1) the erroneous "not applicable" response to Question 17 on the plea form, which constituted affirmative misadvice on the subject of immigration consequences (citing State v. Garcia, 320 N.J. Super. 332, 340 (App. Div. 1999), and State v. Vieira, 334 N.J. Super.681, 688 (Law Div. 2000)); and (2) defendant's apparent confusion in his response to the court's questioning about the plea form. Michel, supra, slip op. at 14-16. "Reflecting his apparent lack of understanding," defendant had requested additional time to discuss the immigration consequences of his plea with counsel. Id. at 15. "However, rather than suspend the plea hearing to enable defendant to discuss the matter further with counsel and the court, the judge continued the plea hearing without interruption." Ibid. Additionally, the panel noted that "[t]he potential consequences of conviction after trial were not so severe as to render implausible defendant's claim that he would have rejected the plea offer," given his status as a young, first time offender who enjoyed a presumption of non-incarceration. Id.at 16; seeN.J.S.A.2C:44-1(e).

During the remand proceeding, which was held on June 13, 2013, Judge Robert J. Mega reviewed the transcript and listened to the tape recording of the prior plea colloquy.1 The judge concluded that the transcript of the plea hearing was accurate.

The attorney who represented defendant during his plea was called as a defense witness. Counsel admitted he made a mistake when he circled "not applicable" in response to Question 17 on the plea form, which asked, "Do you understand that if you are not a United States citizen or national, you may be deported?" On cross-examination, plea counsel testified that, although he lacked an independent recollection, based on his review of the plea transcript he believed he had explained to defendant that he could be deported as a result of his guilty plea, and that defendant understood his advice. He was unable to recall defendant having asked for more time to consult with him during the plea hearing.

Defendant had already been deported to Angola as a result of this conviction, and he testified telephonically at the evidentiary hearing. He stated that he was born in Angola, that he came to the United States when he was three years old, and that his entire family remains here. He denied that counsel had discussed his citizenship or deportation with him. Rather, the first mention of it came during the plea colloquy. Consistent with the plea transcript, defendant testified that he then requested additional time to confer with counsel. He reiterated that he would not have pled guilty had he known it would cause him to be deported.

Following the evidentiary hearing, Judge Mega found defendant's allegations of misadvice supported by the record. The judge noted that plea counsel had testified that he thought he "would have" advised defendant of the immigration consequences of his plea. The judge further found defendant's testimony "extremely credible," and that he was able to "fully recollect his interactions" with plea counsel on the date the plea was entered. In his written decision filed on July 12, 2013, the judge adopted defendant's version of the facts, given his "strong recollection of the case, and [plea counsel's] testimony that he did not remember discussing the immigration consequences with [defendant]."

Citing the then-controlling standard enunciated in State v. Nu ez-Vald z, 200 N.J.129, 131 (2009), the judge noted that an attorney's assistance shall be deemed ineffective when he or she provides false or affirmatively misleading advice about the deportation consequences of a guilty plea, and the defendant demonstrates that he or she would not have pled guilty had they been provided with accurate information. Guided by this standard, the judge concluded:

In the present matter, [plea counsel] provided [defendant] with affirmatively incorrect information regarding the deportation consequences of a guilty plea when he circled "N/A" on the plea form. Although this answer was the result of an honest mistake, it nonetheless provided [defendant] with affirmative misinformation regarding the immigration consequences of his plea. Specifically, the "N/A" response to question 17 created the false impression that deportation was not in the realm of possible consequences of entering the plea.

[Defendant's] failure to understand the immigration consequences of the plea is further evinced by his response to the trial court's questioning about the plea form. After the trial court had established that [defendant] could be deported as a result of the plea, and thus, the answer to question 17 was erroneous, [defendant] nonetheless stated under oath that all of the answers on the plea form were truthful. Furthermore, despite [defendant's] indication that he wanted more time to discuss the immigration consequences of entering a guilty plea, he was not provided with this opportunity.

The [c]ourt notes that [defendant] stated "yes" when asked if he understood that he may be deported as a result of the plea and whether he discussed same with his attorney. However, these two one-word answers alone do not overcome the evidence that [defendant] was misadvised that he would not be deported and consequently, failed to understand the immigration consequences of the plea. During the evidentiary hearing subsequently conducted by this [c]ourt, [defendant] credibly testified that he had not, in fact, discussed the immigration consequences of entering the plea with [plea counsel] or another attorney. [fn omitted]. Moreover, [plea counsel] testified that he does not remember discussing the possibility of deportation with [defendant]. Given the erroneous "N/A" response to question 17 on the plea form, [defendant's] confusion regarding the deportation consequences as evinced from the record, and his inability to discuss the immigration consequences with his attorney after learning that deportation may result from the plea, the [c]ourt finds that [defendant] was provided with affirmatively misleading misinformation regarding the immigration consequences of entering a guilty plea.

With respect to the second prong of the test, the [c]ourt finds that [defendant] would not have pled guilty if provided with accurate information as to the deportation consequences of the guilty plea. As [defendant] credibly explained on direct examination, he would have gone to trial if he understood the risk of deportation he faced as a result of entering the guilty plea. As the two-prong test has been satisfied, [defendant] has sustained his burden of proving that he was denied effective assistance of counsel in connection with his guilty plea. Thus, he is entitled to withdraw his plea under accusation number 03-02-00173-A.

On appeal, the State contends that the trial court made factual findings not supported by the record, and consequently erred in granting defendant's PCR petition. We disagree.

"A reviewing court is required to affirm the findings of the trial court if they could reasonably have been reached on sufficient credible evidence in the record." Nu ez-Vald z, supra, 200 N.J.at 141. We must defer to such "'findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Elders, 192 N.J.224, 244 (2007) (quoting State v. Johnson, 42 N.J.146, 161 (1964)).

We accept the trial court's findings, which are more than amply supported by the record. See Johnson, supra, 42 N.J. at 162 (mandating "consideration of the proofs as a whole"). We conclude that Judge Mega fairly and justly reviewed the testimony at the evidentiary hearing and the complete record of the plea colloquy, and determined that the response of "N/A" on the plea form constituted misadvice, and that defendant requested additional time to consult with counsel when potential immigration consequences came to light during the plea hearing, which he was not afforded. The judge had a sound basis to conclude that defendant established prejudice by reason of counsel's defective performance, based upon his unwaivering testimony that he would have gone to trial on the charges had he known a guilty plea would result in his deportation.

1 Judge Mega did not preside over the plea hearing or the initial PCR hearing.