STATE OF NEW JERSEY v. MARCO CHACON

NOT FOR PUBLICATION WITHOUT THE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.

MARCO CHACON,

Defendant-Appellant.

_______________________________

August 3, 2015

Before Judges Lihotz and St. John.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-07-1306.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the statement in lieu of brief).

PER CURIAM

Defendant Marco Chacon, a native of Peru, appeals from a November 15, 2013 Law Division order denying his petition for post-conviction relief (PCR). On appeal, defendant argues

POINT I

THE DEFENDANT'S GUILTY PLEA TO POSSESSION OF MARIJUANA WITH THE INTENT TO DISTRIBUTE MUST BE SET ASIDE, AS THERE IS NO FACTUAL BASIS TO SUPPORT THE GUILTY PLEA. [Not raised below].

POINT II

THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED.

A. Trial Counsel Failed to Investigate the Case Adequately.

B. Trial Counsel Misinformed the Defendant Regarding the Immigration Consequences of his Guilty Plea.

POINT III

THE DEFENDANT'S GUILTY PLEA WAS NOT KNOWING AND VOLUNTARY AND SHOULD BE VACATED.

POINT IV

IN THE INTEREST OF JUSTICE THE DEFENDANT SHOULD BE PERMITTED TO PROCEED WITH HIS SUBSTANTIVE POST-CONVICTION RELIEF CLAIMS.

POINT V

THE DEFENDANT SHOULD BE GRANTED RELIEF OR THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIAL HEARING.

Following review of the record and applicable law, we reject defendant's arguments and affirm. Defendant's PCR petition is time-barred, as it was filed more than five years following his conviction and it fails to allege facts to support a finding of excusable neglect. R. 3:22-12(a)(1). In addition to this procedural bar to relief, a review of the merits of these arguments shows defendant fails to establish a prima facie claim of ineffective assistance of counsel, and no evidentiary hearing was necessary.

The following facts surrounding defendant's underlying conviction provide context to his PCR petition. On May 5, 2005, defendant was arrested for possession of marijuana, which he admittedly intended to "smoke . . . with [his] friend." Subsequently, defendant was charged under Bergen County Indictment No. 05-07-1306 with fourth-degree possession with intent to distribute a controlled dangerous substance, N.J.S.A. 2C:35-5(a)(1) and (b)(12).

On July 18, 2005, defendant entered a guilty plea, pursuant to a negotiated agreement, in which the State recommended a sentence of no more than 180 days incarceration. During the plea colloquy, defendant affirmed he "discussed with [his] attorney the fact that if [he] plead guilty . . . it could possibly affect [his] immigration status." Further, defendant declined "more time to talk to [his] attorney" (plea counsel) about the effect a guilty plea could have on his immigration status. He also responded affirmatively to question seventeen on his plea form, acknowledging the possibility of being "deported by virtue of [his] plea of guilty."

On September 23, 2005, the sentencing judge imposed a two-year non-custodial probationary sentence, conditioned upon defendant's compliance with random drug screens. Applicable fines and penalties were also imposed.

On June 9, 2006, defendant sought to plead guilty to three charges of violating the imposed probationary sentence, including testing positive for cocaine. Prior to discussing his plea, the judge examined defendant regarding his immigration status. The judge asked defendant whether he understood that his plea could affect his immigration status and also called a recess to allow defendant the opportunity to discuss the issue with in more detail his counsel (VOP counsel). Defendant was sentenced to two years probation, conditioned upon 180 days of incarceration; however, he was granted the opportunity to enroll in an inpatient drug rehabilitation facility, which would satisfy the custodial portion of his sentence. Defendant did not directly appeal his conviction or sentence.

An immigration detainer was initiated on May 17, 2012, and defendant filed a pro se motion to revoke his guilty plea. In his verified statement accompanying his February 26, 2013 motion, defendant maintained plea counsel and VOP counsel failed to advise him of "the negative immigration consequences of entering a guilty plea." More specifically, defendant asserted the judge failed to inform him of his right to consult immigration counsel prior to entering his plea and plea counsel told him "he didn't think" pleading guilty would impact defendant's immigration status or result in deportation. PCR counsel was appointed and oral argument held.

The PCR judge denied defendant's petition, concluding it was filed outside the applicable period for filing PCR and also failed to allege grounds sufficient to demonstrate delay in filing was the result of excusable neglect. Further, the judge concluded defendant had not established "a prima facie claim of ineffective assistance of counsel." This appeal ensued.

A deprivation of the constitutional right to effective assistance of counsel occurs when "counsel [is] not functioning as the counsel guaranteed by the Sixth Amendment," State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation and internal quotation marks omitted), cert. denied, U.S. , 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013), and counsel's inadequate deficient performance causes the defendant prejudice, Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

In reviewing a defendant's claim to be relieved of the consequences of a guilty plea, the first prong of the Strickland ineffective assistance of counsel test may be met where a defendant shows counsel's representation fell short of the prevailing standards expected of criminal defense attorneys. Padilla v. Kentucky, 559 U.S. 356, 366-67, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). Counsel's performance is not deficient if "a defendant considering whether or not to pleadguilty toan offensereceives correctinformation concerning all of the relevant material consequences that flow from such a plea." State v. Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012). The second prong requires the defendant establish a reasonable probability that he or she would not have pled guilty but for counsel's errors. Gaitan, supra, 209 N.J. at 351.

We first address defendant's assertions focused on counsel's advice regarding the immigration consequences of entering a guilty plea. We conclude defendant has not presented a basis for relief.

In State v. Nu ez-Vald z, 200 N.J. 129 (2009), the Supreme Court held "a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from 'inaccurate information from counsel concerning the deportation consequences of his plea.'" State v. Brewster, 429 N.J. Super. 387, 392 (App. Div. 2013) (quoting Nu ez-Vald z, supra, 200 N.J. at 143). The United States Supreme Court has clarified that counsel's duty is not limited to avoiding "false or misleading information," as our Court identified in Nu ez-Vald z, supra, 200 N.J. at 138, but also includes an affirmative duty to inform a defendant entering a guilty plea of the relevant law pertaining to mandatory deportation. Padilla, supra, 559 U.S. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295. The United States Supreme Court made clear that counsel's "failure to advise a noncitizen client that a guilty plea will lead to mandatory deportation deprives the client of the effective assistance of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J. Super. 329, 330 (2012) (citing Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296).

In Chaidez v. United States, __ U.S. __, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), the Court concluded the rule announced in Padilla imposed a new obligation and announced a new rule of law. Id. at ___, 133 S. Ct. at 1113, 185 L. Ed. 2d at 162. Accordingly, its holding would be applied prospectively and "defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding." Ibid.

Here, defendant's pleas, entered in 2005 and 2006, predate Padilla. Consequently, the PCR judge properly concluded Padilla's holding was inapplicable; he evaluated defendant's claims under the law applicable to claims of ineffective assistance of counsel regarding the deportation consequences of conviction following a guilty plea on the date of defendant's plea. At the time defendant pled guilty, New Jersey case law instructed that "a defendant's guilty plea is not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Gaitan, supra, 209 N.J. at 361. Guilty pleas entered prior to Padilla must be reviewed to determine whether counsel provided affirmative false information regarding the plea's immigration consequences. State v. Santos, 210 N.J. 129, 144 (2012). "Only if defendant's attorney affirmatively gave incorrect advice about the deportation consequences of his guilty plea might he be entitled to set aside his conviction in accordance with the holding of Nu ez-Vald z." Brewster, supra, 429 N.J. Super. at 394-95.

This record does not support a claim of affirmative misadvice. The plea judge reviewed defendant's response to question seventeen on his plea form, told defendant his plea could affect his immigration status and offered additional time to discuss this issue with counsel. Similarly, prior to accepting defendant's plea to violating probation, the judge again informed defendant immigration consequences might attach to his guilty plea, and recessed to allow him additional time to consult with counsel. We find no support for defendant's PCR assertions suggesting neither plea nor VOP counsel "advised [him] of the negative immigration consequences of entering a plea of guilty." Neither assured defendant he would not be deported. Rather, defendant admits plea and VOP counsel stated he and she "didn't think" deportation would be an issue. This advice has been found to be "[in]sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super.154, 170 (App. Div.), certif. denied, 162 N.J.199 (1999). Defendant has presented no other evidence to demonstrate counsels' advice deviated from the "'prevailing professional norms'" for a criminal defense attorney at the time the pleas were entered. Padilla, supra, 559 U.S.at 366, 130 S. Ct.at 1482, 176 L. Ed. 2d at 294 (quoting Strickland, supra, 466 U.S.at 688, 104 S. Ct.at 2052, 80 L. Ed.2d at 674).

Defendant was warned on multiple occasions his guilty plea may affect his immigration status. Since defendant "was not provided any false or affirmatively misleading information regarding the immigration consequences of pleading guilty," the record does not support the contention counsels' performances were deficient. Strickland's first prong is not met. SeeGaitan, supra, 209 N.J.at 351 (citing Nu ez-Vald z, 200 N.J.at 131). In light of this conclusion, we need not consider defendant's claim of prejudice as required by Strickland's second prong.

In related arguments, defendant maintains counsel failed to properly investigate the consequences of his immigration status. We conclude this argument lacks merit. R.2:11-3(e)(2).

Defendant's final challenge states the State did not present sufficient factual support to sustain a conviction for marijuana distribution. Not only is PCR on this issue procedurally barred, but the claim is factually unsupported.

Pursuant to Rule 3:22-12(a)(1), a defendant must file a PCR petition within five years of the challenged conviction, unless the petition alleges facts showing the delay was due to "excusable neglect" and there is a "reasonable probability" a "fundamental injustice" would result if the petition were barred. Additionally, Rule 1:1-2(a) permits courts in "exceptional circumstances" to relax the five-year time bar, but only if a defendant demonstrates an injustice by a preponderance of the credible evidence. State v. Mitchell, 126 N.J. 565, 579 (1992).

In determining whether the alleged facts constitute excusable neglect, we "consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an injustice sufficient to relax the time limits." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009) (citation and internal quotation marks omitted). However, more than "a plausible explanation for [the defendant's] failure to file a timely PCR petition" is required. Ibid.

In this matter, defendant was sentenced on September 23, 2005, and filed this PCR petition more than seven years later on February 26, 2013. As the PCR judge determined, defendant failed to establish excusable neglect or the existence of an injustice which would permit the relaxation of the five-year time bar. Excusable neglect is not established "simply because [defendant argues] he received inaccurate deportation advice from his defense counsel." Brewster, supra, 429 N.J. Super. at 400 (citing State v. Goodwin, 173 N.J. 583, 595 (2002)).

Further, Rule 3:22-4 bars this substantive challenge to the factual basis supporting his guilty plea, as it could and should have been raised on direct appeal. Defendant's failure to do so precludes relief. Ibid. We finally note defendant's argument stating his conviction is not supported is belied by the record, which shows defendant possessed marijuana and intended to share it with his friends. See In re G.R., 395 N.J. Super. 428, 432-33 (App. Div.) (holding N.J.S.A. 2C:35-5 "does not draw a distinction between distributing . . . to another in exchange for money and a gratuitous transfer"), certif. denied, 193 N.J. 275 (2007).

The record demonstrates defendant's "plea (1) contain[ed] a factual basis, (2) [was] given voluntarily, and (3) [was] given with an understanding of the nature of the charge and the consequences of the plea." State v. Barboza, 115 N.J. 415, 420-21 (1989). We have no basis to alter the order denying defendant's motion to set aside his guilty plea.

Affirmed.