STATE OF NEW JERSEY v. ROMEO GAMARRA

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE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.

ROMEO GAMARRA,

Defendant-Appellant.

_______________________________

January 7, 2014

 

 

Before Judges Sapp-Peterson and Lihotz.

 

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-11-1876.

 

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

 

Gaetano T. Gregory, Acting Hudson County Prosecutor,attorney forrespondent (Michelle Erin Ditzhazy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

 

PER CURIAM

Defendant Romeo Gamarra, a citizen of Ecuador, appeals from an April 29, 2011 Law Division order denying his petition for post-conviction relief (PCR). On appeal, defendant argues:

 

 

 

POINT ONE

THE FAILURE OF TRIAL COUNSEL TO ADVISE DEFENDANT THAT AS A RESULT OF HIS PLEA AGREEMENT, HE WOULD BE DEPORTED DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT TWO

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.

 

POINT THREE

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

 

Following our consideration of these arguments in light of the record and applicable law, we affirm.

On July 14, 2008, defendant entered a negotiated guilty plea to one count of a four-count indictment, which charged him with drug offenses. He pleaded guilty to third-degree possession of crack-cocaine with intent to distribute, within 1000 feet of a school (count three), N.J.S.A. 2C:35-7. In exchange, the State agreed to dismiss the remaining charges against defendant and recommend a three-year prison sentence, subject to nine months parole eligibility. Further, charges against defendant's wife were dismissed. Defendant's plea was accepted and, on September 5, 2008, the trial court sentenced defendant in accordance with the negotiated plea agreement.

Defendant did not appeal his conviction. At some point thereafter, he was detained by the United States Immigration and Customs Enforcement Agency (ICE) and ordered deported.1 Defendant remained incarcerated in the Essex County Jail on the ICE detainer.

Defendant filed a petition for PCR seeking to vacate his conviction and set aside his guilty plea, alleging counsel was ineffective because he failed to inform defendant regarding the immigration consequences of pleading guilty. Specifically, defendant asserted, "at no point were immigration consequences discussed" with him by trial counsel. Citing State v. Nu ez-Vald z, 200 N.J. 129 (2009) and Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), defendant maintains counsel and the court were required to explain deportation was a virtual certainty if he pled guilty. Further, he asserts had he been properly informed, he would not have pled guilty.

The judge denied defendant's PCR petition, as well as his request for an evidentiary hearing. He concluded defendant "failed to support []his contention[s] with any facts" and concluded, as a matter of law, the holdings enunciated in Nu ez-Vald z and Padilla do not apply retroactively. This appeal ensued.

To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a defendant must show "'that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed . . . by the Sixth Amendment.'" 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). Second, a defendant must prove that he or she suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must demonstrate by a "reasonable probability" that the deficient performance adversely affected the outcome of the proceeding. Fritz, supra, 105 N.J. at 52.

In the context of a guilty plea, the standard to establish ineffective assistance of counsel is somewhat modified:

[T]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases"; and (ii) "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial."

 

[Nu ez-Vald z, supra, 200 N.J. at 139 (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (citations omitted) (second alteration in original).]

 

Nu ez-Vald z and Padilla address the standard of counsel's responsibility to discuss deportation consequences when a non-citizen is convicted following a guilty plea. In Nu ez-Vald z, our 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). Thereafter, in Padilla, supra, the United States Supreme Court clarified counsel's duty was not limited solely to avoiding "affirmative misadvice" as identified in Nu ez-Vald z, supra, 200 N.J. at 138. Rather, counsel had an affirmative duty to inform a defendant entering a guilty plea of the mandatory deportation consequences when such are "succinct, clear, and explicit[.]" 559 U.S. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295. The United State Supreme Court made clear: 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, 330-31 (App. Div. 2012) (citing Padilla, supra, 559 U.S. at 364, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296).

The effect of these decisions also has been recently reviewed. In State v. Gaitan, 209 N.J. 339 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013), our Supreme Court concluded Padilla's holding altered counsel's responsibility when advising a defendant of deportation consequences. The court explained Nu ez-Vald z was not a new pronouncement of law as "it was hardly revolutionary under New Jersey law that an attorney could not actually give wrong or inaccurate information about immigration consequences of a guilty plea without risking an assertion of having provided ineffective assistance." Id. at 352. However, Padilla was found to represent a new standard for an attorney's responsibility and, therefore, was applied only prospectively. Id. at 372.

Thereafter, the Third Circuit reviewed the same question and concluded Padilla's holding applied retroactively. U.S. v. Orocio, 645 F.3d 630, 639-41 (3d Cir. 2011). However, this holding has been reversed by the United States Supreme Court, following its review of the application of Padilla's holding. In Chaidez v. U.S., __ U.S. __, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), the Court conclusively resolved the question, holding the rule announced in Padilla in fact imposed a new obligation upon counsel and announced a new rule of law, which therefore must be applied prospectively. Id. at __, 133 S. Ct. at 1111, 185 L. Ed. 2d at 160. The Court held: "Under our decision in Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075, 103 L. Ed. 2d 334, 356 (1989), defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding." Id. at __, 133 S. Ct. at 1113, 185 L. Ed. 2d at 162 (internal quotation marks omitted).

We turn our review to this matter. Initially, we note defendant's failure to file a direct appeal of his conviction obviates the need to consider the merits of his claims under the standard announced in Padilla, because, generally, a new rule of law "does not apply retroactively to a case where the direct review is over and the case is only being reviewed collaterally." Gaitan, supra, 209 N.J. at 364 (quoting Teague, supra, 489 U.S. at 310, 109 S. Ct. at 1075, 103 L. Ed. 2d at 356). For completeness, we nevertheless consider defendant's arguments.

Defendant generally frames his ineffective assistance of counsel argument as affirmative misadvice or misinformation, requiring relief under Nu ez-Vald z. A close examination of his certification accompanying his PCR petition, however, reveals no facts explaining the claimed misadvice. Rather, it suggests counsel allegedly failed to warn him he absolutely faced deportation if he pled guilty, stating he "may" be deported. We are not persuaded.

The plea agreement executed by defendant contained question 17, which states: "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." The initially chosen response of "N/A" was crossed out in favor of answering "YES." The interaction resulting in the change in that answer is unexplained, but the change appears to be initialed. Also, defendant initialed each page of the plea agreement and executed the final page, acknowledging he fully accepted the terms of the agreement and he had no questions.

During the plea colloquy, defendant responded affirmatively when asked if the provisions of the plea form had been explained to him. Although we note the transcript reflects no discussion specific to defendant's immigration status, Question 17, or possible deportation consequences, in his pro se submission defendant states: "The judge accepted the plea agreement; and mentioned that by accepting this plea, I [defendant] may be subject to deportation by immigration as a consequence." Defendant was also informed of his right to appeal his conviction and sentence.

These facts, although sparse, reflect that deportation was discussed as a possible consequence of pleading guilty, belying defendant's claim he was not informed. His assertions essentially contend counsel failed to express deportation was a certainty. This claim amounts to a failure to perform at the level of competence announced in Padilla. See Barros, supra, 425 N.J. Super. at 332-33. However, as we explained, Padilla's holding, announced October 13, 2009, does not apply to this matter, which was completed in 2008. Moreover, the claim does not rise to ineffective assistance of counsel, given the prevailing professional standards and the state of immigration law at the time of defendant's plea, which provided advising a defendant of the possibility of deportation, even if deportation was probable, was not deficient legal advice. Brewster, supra, 429 N.J. Super. at 397 (citing Nu ez-Vald z, supra, 200 N.J. at 138, 143). Accordingly, we find no error in denying defendant's petition for PCR.

Also, we find no error in the judge's denial of defendant's request for an evidentiary hearing. Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if a defendant has presented a prima facie claim of ineffective assistance, State v. Preciose, 129 N.J. 451, 462-64 (1992), which he failed to do.

Affirmed.

1 Distribution of a controlled dangerous substance is classified as an "aggravated felony," pursuant to 8 U.S.C.A. 1101(a)(43)(B) and 1227a(A)(iii), as well as 18 U.S.C.A. 924c(2).