STATE OF NEW JERSEY v. PABLO OROPESA

(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NOT FOR PUBLICATION WITHOUT THE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-0420-05T40420-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PABLO OROPESA,

Defendant-Appellant.

_______________________________

 

Submitted November 26, 2007 - Decided

Before Judges Parrillo and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment No. 95-05-0483.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara Liebman, Assistant Prosecutor, of counsel).

PER CURIAM

Defendant Pablo Oropesa appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) and his motion for a new trial. We affirm.

Defendant is a Spanish-speaking Cuban-born foreign national who came to the United States in the Mariel boat lift. He has been in the country since the early 1980s, does not speak English, and has a history of psychiatric illness and hospitalization.

On May 18, 1995, defendant was charged in a Union County Indictment with second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c); two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); and two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b). He pled guilty to the two counts of aggravated criminal sexual contact in exchange for the State's agreement to dismiss the remaining charges. At the time he entered his guilty plea on August 28, 1995, defendant admitted that on February 2, 1995, in Elizabeth, he had sexual contact with thirteen-year-old J.P., his girlfriend's daughter. While alone with J.P., defendant made the girl take off her slacks and panties, rubbed himself against her, and masturbated on her underwear in her presence. This happened again five days later, on February 7, 1995. On both occasions, defendant acted for his own sexual gratification.

As part of the plea agreement, the State recommended that defendant serve three-and-one-half years at the Adult Diagnostic and Treatment Center at Avenel or, if found not to be a compulsive repetitive sex offender, 180 days in county jail. At the time of plea, defendant was informed of the differing parole consequences of being sentenced to Avenel as opposed to prison; that if he were found to be a repetitive compulsive sex offender, then the new Megan's law, N.J.S.A. 2C:7-1 to -19, would apply to him and he would be required to register with law enforcement officials wherever he lives; that the information could be released to the public; and that "[t]here's no limitation as to how long that will go on." There was, however, no mention of the requirement of "community supervision for life." Nevertheless, defendant circled "yes" on the plea form, dated August 25, 1995, to the question asking him if he understood that he would be subject to a mandatory penalty of community supervision for life.

Having not qualified for Avenel, defendant was sentenced on December 15, 1995 to concurrent three-year probationary terms on the two counts of aggravated criminal sexual contact. He was credited 311 days for time already served, fines were assessed, and he was released that same day. This judgment of conviction, filed in January 1996, made no mention of the requirement of community supervision for life. That deficiency was remedied over four years later when a representative of the Union County Prosecutor's Office alerted the sentencing judge to the omission. As a result, an amended judgment of conviction was entered on May 25, 2000, including the "community supervision for life" condition.

On June 28, 2002, defendant filed a pro se PCR petition based on the victim's purported recantation. According to the defendant, J.P., then twenty-years-old, approached defendant's brother and claimed that her mother had forced her to accuse defendant of molestation. Since the mother had recently passed away, J.P. came to realize she had falsely accused defendant.

Defendant's attorney filed a supplemental PCR petition in March 2004, alleging ineffective assistance of counsel because defendant was not informed of the immigration consequences of his plea, that he would be under community supervision for life, and that he had rights under the Vienna Convention on Consular Relations (VCCR). The supplemental petition also restated the original grounds for relief in defendant's pro se petition, namely the victim's purported retraction of her original accusation.

As to the claims of ineffective assistance of counsel concerning the VCCR and immigration consequences of the guilty plea, the PCR judge denied relief finding these particular claims time-barred, R. 3:22-12, because raised more than five years after the January 2, 1996 judgment of conviction, and no "excusable neglect" for the delay had been shown. The PCR judge also found, substantively, that these claims lacked merit.

On the other hand, the judge found that the remaining ineffective assistance of counsel claim was not time-barred since the judgment of conviction was amended in 2000 to include the "community supervision for life" condition now being challenged, and therefore this portion of defendant's PCR petition was well within the five-year time bar. Consequently, the judge held an evidentiary hearing on this as well as the remaining PCR claim based on the so-called newly discovered evidence of the recanting victim. On this score, the judge stated:

it seems to me we have only two things that we're discussing when we come back, we're discussing the PCR standards for the community supervision for life, would that have changed his plea, and the second thing we're discussing is did he meet the standards for a new trial based on the newly-discovered evidence of the recanting witness.

At the hearing, Donna Wrenn, the public defender who represented defendant in 1995, testified that she either had the plea form prepared or prepared the plea forms and had an interpreter go over them with defendant before the issue of competency came up in court. She had no recollection, however, whether or not she advised defendant about community supervision for life:

I know that the -- the question is circled in the plea forms. I don't know that any of us knew what that . . . meant. I know that -- I know that it was new. I know that defense attorneys, prosecutors, judges all were somewhat confused by -- by what that meant.

. . . .

I have no specific memory of ever discussing community supervision for life with him. I don't know that I sat in the back room when the interpreter went over the plea forms.

. . . .

I can tell you that now when I go over the plea forms with someone and have to go through all of that, if it's someone who speaks Spanish I make sure that I am there, and go through questions, and try to explain it a little bit further.

Back in 1995 these may not have even been real plea forms. I think someone typed up those questions. This was all . . . new. I don't know -- I can't tell you back in 1995 what I thought [community supervision for life] meant.

As to the entry of defendant's guilty plea, Wrenn was "fairly confident that [she] recommended the plea to [defendant][,]" that "it took some time in the jail with an interpreter going over things, trying to convince [defendant] that this was a good deal."

Defendant also testified on this issue. According to defendant, there were no circles on the plea forms when he signed them, and the interpreter went through the forms with him but "didn't explain what it was." Defendant did not recall anyone discussing either community or parole supervision for life with him. He said he would not have taken the plea

[i]f [he] knew that [he would be] subject to community supervision for life and that [he would] potentially [be] subject to a fourth-degree offense charged against [him] if [he] violated community or parole supervision for life . . . .

On the other hand, defendant testified that he pled guilty because "then [he] would be released." He recalled being advised that his plea would subject him to Megan's law and that his picture would be placed in local schools in the area he lived, and he would have to pay a fine at the police station.

At the conclusion of testimony on this issue, the PCR judge denied relief, finding the plea forms sufficiently notified defendant of the community supervision for life condition and that, in any event, defendant failed to prove he was prejudiced:

And I am also struck with when -- when asked, and I asked in particular, well, what would have happened if you didn't take this plea we know he says I took that plea because I would have walked out of there that day, he has absolutely no way to support then what would have happened if [he] did not take the plea.

The burden is on the defendant to convince me that he was prejudiced by this

. . . if [he] had known community supervision for life [he] never would have taken the plea.

He has not convinced me of that. . . . And I do not find, between being not credible on certain points, . . . answering questions two different ways, he hasn't -- he hasn't helped himself essentially, hasn't given me any positive information with which I could rule in his favor.

The PCR judge also heard testimony on defendant's motion for a new trial based on the victim's recantation. J.P., then twenty-three-years old, testified that she waited to recant her allegations against defendant until her mother passed away on June 19, 2001, at which time she confided in her grandfather that she had falsely accused defendant, and then signed a certification to that effect on June 22, 2004. According to J.P., her mother had threatened to hit her with a belt if she did not accuse defendant of sexual abuse, although she did not know why her mother so insisted. Even though she was in fear the day she went to the police station to give a statement, J.P. admitted that before then, her mother had never hit her with a belt at any time. J.P. later contradicted herself and said that her mother hit her with a belt in the police station in front of everybody. In contrast to her precise description of that event, J.P. did not remember any details she gave the police about defendant's sexual abuse, nor "remember being at the police station [on a second occasion to report abuse with her mother] but [did] remember [her mother] had a belt when [they] were at the police station."

Finding the victim witness "not [the] slightest bit credible and indeed has woven a fanciful tale as to the events[,]" the PCR judge denied defendant's application for a new trial. This appeal follows in which defendant raises the following issues:

I. DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR EVIDENTIARY HEARINGS.

a. Trial Counsel Failed To Inform Defendant Of The Mandated Community Supervision For Life Prior To The Guilty Pleas.

b. Defendant Should Have Been Afforded An Evidentiary Hearing Regarding The Claim That His Trial Attorney Failed To Inform Him Of His Rights Under The Vienna Convention On Consular Relations.

c. Defendant Should Have Been Afforded An Evidentiary Hearing Regarding The Claim That His Trial Attorney Misinformed Him Of The Immigration Consequences By His Pleading Guilty.

II. DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED DUE TO NEWLY DISCOVERED EVIDENCE, THE VICTIM'S RECANTATION.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by the PCR judge in her oral opinion of February 10, 2005 and written opinion of April 18, 2005. We add only the following comments.

I.

Defendant's ineffective assistance of counsel claims based on the VCCR and immigration consequences of his plea are time-barred under Rule 3:22-12. The original judgment of conviction was entered in 1995, however, defendant filed his pro se PCR petition more than five years later in 2002. The 2000 amendment to the judgment of conviction to include the "community supervision for life" provision did not restart the statutory time period during which defendant was required to raise issues via PCR that were clearly implicated by, and inherent in, entry of the original judgment of conviction. State v. Dugan, 289 N.J. Super. 15, 19, 21 (App. Div.), certif. denied, 145 N.J. 373 (1996). Moreover, defendant has demonstrated neither excusable neglect, R. 3:22-12, nor a substantial injustice, R. 1:1-2, to warrant relief from the time bar. Further, defendant never filed a direct appeal from either the original or amended judgment of conviction and therefore is procedurally barred for the added reason that grounds for relief not raised in prior proceedings may not be raised on PCR. R. 3:22-4.

Aside from these procedural bars, defendant's claims of ineffective assistance of counsel on these two grounds lack substantive merit. It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104

S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). In the specific context of ineffective assistance of counsel claims "arising out of the plea process[,]" as here, a defendant must prove first that counsel's advice was not "'within the range of competence demanded of attorneys in criminal cases.'' Hill v. Lockart, 474 U.S. 52, 56 57, 58, 106 S. Ct. 366, 369, 370, 88 L. Ed. 2d 203, 208, 209 (1985) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)), and second, as to "'prejudice' . . . that there is a reasonable probability that, but for counsel's errors, defendant would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210. We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland/Hill test.

(a)

As to the VCCR, both the United States and Cuba are signatories to Article 36 of the VCCR. The objective of the VCCR is "to protect foreign nationals, particularly those detained or in custody." State v. Jang, 359 N.J. Super. 85, 92 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 177 N.J. 492 (2003). Article 36 of the VCCR provides, in relevant part:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he [defendant] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph[.]

[Vienna Convention on Consular Relations and Optional Protocol on Disputes, art. XXXVI, Dec. 24, 1969, 21 U.S.T. 77 (emphasis added).]

We have previously held that "absent a showing of prejudice to defendant, a criminal conviction will not be overturned because the terms of the Convention have not been observed." State v. Cevallos-Bermeo, 333 N.J. Super. 181, 183 (App. Div.), certif. denied, 165 N.J. 607 (2000). We adopted the Ninth Circuit's test to determine whether or not a defendant has established prejudice:

defendant must produce evidence that: 1) he did not know his right; 2) he would have availed himself of the right had he known of it; and 3) there was a likelihood that contact with the consul would have resulted in assistance to him.

[Id. at 187 (quoting United States v. Villa-Fabela, 882 F.2d 434, 440 (9th Cir. 1989) (citation omitted), overruled on other grounds, United States v. Proa-Tovar, 975 F.2d 592 (9th Cir. 1992)).]

In Cevallos-Bermeo, the defendant asserted that contact with the consul could have bridged cultural gaps and assisted the defendant in navigating a foreign judiciary system. Id. at 187-88. The consul would also have been able to contact the prosecutor's office directly which may have helped the defendant's legal argument. Id. at 188. We rejected these arguments calling them "general claims of prejudice" that "could apply to any foreign national who was not advised of his right to contact the consul." Cevallos-Bermeo, supra, 333 N.J. Super. at 187-188. We also noted that a "consul cannot render legal advice." Id. at 188 (citing United States v. Alvarado-Torres, 45 F. Supp. 2d 986, 992 (S.D. Cal. 1999), aff'd, 230 F.3d 1368 (9th Cir. 2000)). Accordingly, we held that the defendant failed to establish the prejudice required in order to prove a violation of the Convention.

As in Cevallos-Bermeo, here we are satisfied that defendant did not prove "a likelihood that contact with the consul would have resulted in assistance to him." Id. at 187 (quoting Villa-Fabela, supra, 882 F. 2d at 440). In support of his claim, defendant simply makes the blanket assertion that contact with consul would have helped him, without specifying or identifying the assistance that would have been rendered, or the particular prejudice he suffered in the absence of such assistance. Such vague generalizations fall far short on warranting an evidentiary hearing on the subject, much less the relief requested. Id. at 188.

(b)

As to the other aspect of defendant's ineffective assistance of counsel claim, it is clear that the effect on immigration status is a collateral consequence of a plea and a defendant need be informed only of his plea's penal consequences. State v. Heitzman, 209 N.J. Super. 617, 622 (App. Div. 1986), aff'd o.b., 107 N.J. 603 (1987). Thus, a defendant should not be allowed to set aside a guilty plea because neither the judge nor counsel informed him of the collateral consequences of accepting the plea. Ibid. Although a guilty plea may be vacated where a defendant is actually misinformed of a material element and was prejudiced by that misinformation, State v. Howard, 110 N.J. 113, 123 (1988), we previously denied a claim similar to defendant's where a defense counsel did not actually misinform the defendant as to the immigration consequences of his plea. State v. Chung, 210 N.J. Super. 427, 435 (App. Div. 1986). Compare State v. Garcia, 320 N.J. Super. 332, 336 (App. Div. 1999) (where defense counsel specifically advised his client that "he would not be subject to deportation").

The present matter is distinguishable from Garcia because although Question 17 was also marked N/A, as in Garcia, defense counsel here did not offer advice to defendant about immigration consequences, let alone boldly and inaccurately assert that the guilty plea would have no effect at all on defendant's immigration status. In contrast to Garcia, here there was no misinformation or false information conveyed to defendant, nor any showing of prejudice therefrom, to warrant an evidentiary hearing, much less the full relief requested.

II.

Defendant's remaining ineffective assistance claim, for which he was granted an evidentiary hearing, is grounded in counsel's failure to inform him of the "community supervision for life" consequences of his guilty plea. Unlike the effect on immigration status, we have found that the imposition of community supervision for life "is a penal and not a collateral consequence of the sentence." State v. Jamgochian, 363 N.J. Super. 220, 224 (App. Div. 2003); see also State v. Luckey, 366 N.J. Super. 79, 89-90 (App. Div. 2004). In Jamgochian, where both defense counsel and the trial judge told defendant that he would be able to travel even if sentenced to community supervision for life, 363 N.J. Super. at 223-24, we remanded to the PCR court to hold an evidentiary hearing to determine if defendant was misinformed about the consequences of community supervision for life and, if so, would "the correct information . . . have caused defendant to go to trial rather than plead guilty." Id. at 227. See also State v. Horton, 331 N.J. Super. 92, 102-04 (App. Div. 2000) (where a defendant was told he "may" be subject to community supervision for life, we remanded for an evidentiary hearing to determine if this information would have changed the defendant's plea).

Here, the PCR judge properly held an evidentiary hearing at which it was determined that although neither counsel nor the sentencing judge advised defendant of community supervision for life, defendant signed plea forms, translated by an interpreter, that informed him of this penalty. When the judgment of conviction was later amended in 2000 to reflect this penal consequence, defendant never appealed and waited two years before filing his PCR petition which alleged grounds other than ineffective assistance of counsel. Under these circumstances, we fail to discern any "manifest injustice" to warrant vacating defendant's plea. State v. Williams, 342 N.J. Super. 83, 89-90, certif. denied, 170 N.J. 207 (2001).

We are also satisfied from the record of the evidentiary hearing that defendant failed to show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210 (footnote omitted). The PCR judge was certainly free to discredit defendant's protestation to the contrary, and find from the entire record that the true motivation for defendant's guilty plea was the promise of release from incarceration that very day.

III.

Defendant's final contention is that the PCR judge erred in denying his motion for a new trial. We disagree.

When a defendant bases his motion for a new trial on recanted testimony, the trial judge can grant a new trial only if there is a "'reasonable probability'" that the testimony is true. State v. Vaszorich, 13 N.J. 99, 130 (quoting People v. Shilitano, 218 N.Y. 161, 180 (Cardozo, J. concurring), rehearing denied, 218 N.Y. 702 (1916)), cert. denied, 346 U.S. 900, 74 S. Ct. 219, 98 L. Ed. 400 (1953). Recanted testimony is "a particularly unreliable form of proof," ibid., and is considered "suspect and untrustworthy." State v. Carter, 69 N.J. 420, 427 (1976). The burden of proof rests on the defendant to prove that the recanted testimony "is probably true and the trial testimony probably false." Ibid. (citing State v. Baldwin, 47 N.J. 379, 400, cert. denied, 385 U.S. 980, 87 S. Ct. 527, 17 L. Ed. 2d 442 (1966)).

If the judge determines that the recantation testimony is false, then the motion for a new trial must be denied. State v. Engel, 249 N.J. Super. 336, 386 (App. Div.), certif. denied, 130 N.J. 393 (1991). "[T]he credibility of recantation testimony is peculiarly a question for the trial judge who sees the witnesses, hears their testimony and has the feel of the case." Ibid. (citing State v. Smith, 29 N.J. 561, 573, cert. denied, 361 U.S. 861, 80 S. Ct. 120, 4 L. Ed. 2d 103 (1959)). For these reasons, an appellate court "should defer to the trial judge's findings on this sensitive issue." Ibid. (citing Carter, supra, 69 N.J. at 427-28).

Here, the PCR judge found the victim J.P.'s recantation testimony at the evidentiary hearing not credible. The obvious inconsistencies in, and implausibility of, her account, together with the fact that J.P. waited until after her mother's death to retract her accusation yet could offer no reason whatsoever for her mother's demand of her, were all reasonable grounds for discrediting J.P.'s recantation. We obviously defer to the PCR judge's credibility determination, Engel, supra, 249 N.J. Super. at 386, and find ample support in the record for her denial of defendant's new trial application.

Affirmed.

On the form for "ADDITIONAL QUESTIONS FOR CERTAIN SEXUAL OFFENSES," under "Community Supervision for Life," defendant circled the "Yes" answer to:

a) Do you understand that if you are pleading guilty to the crime of aggravated sexual assault, sexual assault, aggravated criminal sexual contact, . . . or an attempt to commit any such offense, the Court, in addition to any other sentence, will impose a special sentence of community supervision for life?

b) Do you understand that if you violate the special sentence of community supervision you may be charged with a fourth degree crime?

In the meantime, on October 28, 2003, defendant was taken into custody by the Immigration and Naturalization Service (INS), purportedly "solely on the basis of this conviction[,]" i.e. the guilty plea, and is now being held by the INS subject to deportation.

Although J.P. is seeing a therapist because she hears voices, she never discussed the abuse, or her lying about the abuse, with her therapist.

(continued)

(continued)

20

A-0420-05T4

December 21, 2007