STATE OF NEW JERSEY v. LUIS RAFAEL NUNEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4492-05T24492-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS RAFAEL NUNEZ,

Defendant-Appellant.

____________________________________________

 

Argued March 27, 2007 - Decided -

Before Judges Kestin and Weissbard.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County, Accusation No. 1008-04.

Jerard A. Gonzalez argued the cause for appellant (Meyner and Landis, attorneys; Mr. Gonzalez, on the brief).

Nicole D. DePalma, Assistant Prosecutor, argued the cause for respondent (Edward J. DeFazio, Hudson County Prosecutor, attorney; Ms. DePalma, on the brief).

PER CURIAM

Defendant, Luis Nunez, appeals from the denial of his petition for post-conviction relief (PCR), without an evidentiary hearing. We reverse and remand for such a hearing.

On April 26, 2004, defendant was arrested and charged with possession with intent to distribute and distribution of cocaine. At the time of the offense, defendant was seventeen-years old, a citizen of the Dominican Republic and a lawful permanent resident alien. The offense arose from a joint undercover operation of the federal Drug Enforcement Administration (DEA) and the Union County Police. The primary target of the investigation was Jose Hernandez, an adult, who was also arrested at the same time.

Hernandez's prosecution was handled by federal authorities while defendant was charged in state court. Appearing in juvenile court on September 10, 2004, defendant waived his right to a hearing on whether his case should proceed in juvenile or adult court. That waiver resulted from a plea negotiation with the State under the terms of which defendant would plead guilty in adult court to a single charge of possession of cocaine with intent to distribute, in return for a recommendation that his sentence not exceed ten years in prison with two years of parole ineligibility. Defendant also agreed that, if necessary, he would testify truthfully against Hernandez in any federal trial. Defendant's plea was accepted on September 16, 2004, and he was sentenced, in accordance with the plea agreement, on November 19, 2004.

On December 21, 2005, defendant filed the present PCR petition. He asserted that the attorney who had represented him at the juvenile waiver hearing and the adult plea proceedings, had provided ineffective assistance of counsel. The PCR application was prompted by the fact that defendant's conviction rendered him eligible for deportation and such deportation proceedings had been initiated. Indeed, we were recently advised that defendant has been ordered deported by an Immigration Judge in Texas, to where he had been removed sometime after his release from custody in New Jersey, "and his departure is imminent." In any event, in his PCR petition, defendant alleged the following:

3. While represented by prior counsel the Petitioner claims that not only did counsel not inform him that he was subject to deportation, but instead affirmatively told Petitioner that he would not be deported if he accepted the plea agreement. It was for this reason that Petitioner marked yeas to question "do you understand that if you are not a citizen or national, you may be deported by virtue of your plea of guilty?"

4. The Petitioner and his former counsel never discussed possible defense or plea strategies that would have allowed the criminal matter to be disposed of without making the Petitioner removable from the United States without any form of relief. Further, Petitioner and prior counsel did not discuss any viable defenses to the juvenile waiver hearing, and therefore presented no defense to same. Petitioner was never advised by counsel that an adjudication of delinquency and subsequent sentence in juvenile court could not be used against him for purposes of removal proceedings.

As required, the petition was certified to by defendant.

The PCR petition was heard on March 23, 2006. The judge ruled as follows:

In this case, the petitioner first argues that trial counsel misadvised him with regard to the consequences of his plea. Specifically, petitioner alleges that trial counsel did not tell him that he would be deported if he pled guilty to possession of a controlled dangerous substance with intent to distribute.

This assertion is all that is offered to support this claim. In order to establish a prima facie claim, petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance, which is State v. Cummings, 321 N.J. Super. 154 at 170, a 1999 case.

The assertion by the petitioner is contradicted by the plea form signed by petitioner indicating that he was not a citizen of the United States and that he was aware that his guilty plea would result in deportation. If trial counsel provided contradictory information as alleged, it was in direct conflict with his information

. . . directly on the plea form.

Also, [ ], the trial judge that took the plea always reviews that particular question with defendants at the taking of the plea. The failure of counsel to provide that transcript supports the position of the State. It does not support the position of the defendant.

Erroneous advice from trial counsel may certainly be a basis to retract a plea only if petitioner specifically relied on the advice and would not have otherwise pled. However, the evidence against the petitioner in this case was insurmountable. Had petitioner declined to plea, he would have faced trial where the State's proofs were more than just strong. A conviction of a first-degree possession could have resulted in up to 20 years in State Prison.

It has also come to my attention that petitioner was already on probation for [a] burglary he had committed in January 2004 when he was arrested for this offense three months later. I find it hard to believe today that petitioner would not have pled even if he knew he faced the possibility of deportation.

And, again, I find that the fact that the plea forms specify it and [the judge] always goes into that particular question with defendants to alert them to it that the petitioner has not shown this Court sufficient information that would require an evidentiary hearing on that issue.

Petitioner's secondary claim, ineffective assistance of counsel with regard to the juvenile waiver hearing, New Jersey Statute 2A:40-26 creates a strong presumption that the Family Part shall transfer jurisdiction of a juvenile age 14 or over to an adult court if it finds probable cause to believe that the juvenile has committed a serious offense enumerated in that statute. State v. Jack, 144 N.J. Super. 240 at 246, a 1996 case. A violation of New Jersey Statute 2C:35-5 is an enumerated offense under N.J.S.A. 2A-40-26.

The decision to waive jurisdiction and refer a juvenile complaint to the Law Division is discretionary and will not be disturbed unless it's shown that the exercise of discretion was abused which is State v. Manorama (phonetic), 306 N.J. Super. 6 at Page 16, an App. Div. case of 1966 [State v. Matarama, 306 N.J. Super. 16 (App. Div. 1997)].

Although this was a waiver by the juvenile, no facts in this case were sufficiently shown that would overcome the presumption of remanding it to the adult court.

Petitioner was 18 years old when he appeared before [the judge] for the juvenile waiver hearing. [The judge] granted the State's waiver motion based upon petitioner's consent and was thorough in explaining his decision. There is no evidence to suggest that petitioner was under a false impression as to the consequences of his consent to waiver motion or that he had any facts to oppose the State's position. Petitioner's counsel successfully negotiated a plea agreement that was beneficial to the petitioner.

So I find no merit to the claim, and I'm going to deny the application.

On appeal, defendant argues as follows:

POINT I:

THE MOTION JUDGE ERRED BY DENYING MR. NUNEZ'S REQUEST FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING

POINT II:

THE MOTION JUDGE ERRED BY FINDING THAT PRIOR COUNSEL RENDERED EFFECTIVE LEGAL ASSISTANCE DESPITE THE FACT THAT COUNSEL FAILED TO FIGHT MR. NUNEZ'S WAIVER TO ADULT COURT

POINT III:

THE MOTION JUDGE ERRED BY FINDING THAT PRIOR COUNSEL NEGOTIATED A GOOD PLEA DEAL FOR MR. NUNEZ

As the judge noted, an evidentiary hearing on a PCR petition is only required when a defendant makes out a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). Taking the facts alleged in the light most favorable to the defendant, the defendant must "demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). Of course, to establish an ineffective assistance claim, the defendant must show sub-standard performance by his attorney and that the deficient performance resulted in prejudice to the accused. 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, 58 (1987).

Applying these principles here, defendant claims that his attorney's performance was deficient in that the immigration consequences of his juvenile waiver and subsequent guilty plea were affirmatively misrepresented to him by his attorney. While a mere failure of counsel to discuss deportation consequences, which are deemed collateral, does not provide a direct basis to vacate a plea, State v. Chung, 210 N.J. Super. 427, 431 (App. Div. 1986), such failure, and particularly an affirmative misrepresentation, may constitute ineffective assistance of counsel so as to effectively achieve the same result, vacating the plea. Id. at 434-35; State v. Viera, 334 N.J. Super. 681, 686 (Law Div. 2000). In the context of a plea proceeding, the prejudice prong of the Strickland/Fritz test requires the showing of "a reasonable probability that [the defendant] would not have pleaded guilty and would have 'insisted on going to trial.'" Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

The present case is a bit unusual. Defendant contends that his counsel's misadvice infected not only the adult plea proceeding, but the decision to waive the juvenile court hearing as well. Indeed, it seems clear that the two proceedings were linked for purpose of plea negotiations. Here, defendant does not so much attack the adult plea as the juvenile waiver. Indeed, at oral argument counsel advised that the relief defendant seeks is an opportunity to keep the matter in juvenile court rather than to face trial in adult court. Only if the matter is favorably resolved at the juvenile level will defendant be able to avoid or undo his deportation.

In denying a hearing, the PCR judge stated that defendant had only made "bald assertions" as to his counsel's performance. The judge's statement was true in the sense that defendant's assertion was uncorroborated, but this overlooks that his petition was, as required, verified. R. 3:22-8. Thus, his assertion, unless unquestionably refuted by the record, was sufficient to make out his prima facie claim. With respect to the juvenile proceedings, there are no documents to refute defendant's claims and the transcript of the hearing reveals nothing on the subject. It is true that the plea form signed by defendant in the adult court contains his affirmative response to whether he understood that he "may be deported by virtue of [his] plea of guilty," but that response must be understood, as defendant asserted in his petition, in light of the prior misrepresentation by counsel. And while the judge was quite sure that the judge who accepted defendant's plea discussed that issue in open court, the subsequently obtained transcript reveals otherwise.

Thus, we conclude that defendant did present a prima facie claim of ineffective assistance, entitling him to an evidentiary hearing, and we will remand for that purpose. We cannot provide an answer as to how that hearing will proceed if defendant has already been deported. It is, of course, his burden to establish the claim to relief. If the court finds that defendant has established his claim, the issue of prejudice must then be addressed.

Because defendant only seeks a juvenile disposition, the court will have to hear the evidence and decide if, under the appropriate standards, the case would in all probability have remained in juvenile court. Defendant urges that such a determination should be made by the Family Part. We disagree. We see no good reason why the PCR court cannot make the required finding, applying the standards that would govern in the Family Part.

The State urges us to decide that there was no probability that defendant's case would have been kept in juvenile court. However, we believe that decision should be left to the PCR court in the first instance.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

 

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A-4492-05T2

May 10, 2007