STATE OF NEW JERSEY v. VLADIMIR DIAZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0237-07T40237-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VLADIMIR DIAZ,

Defendant-Appellant.

___________________________________

 

Argued December 1, 2008 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-07-755.

Richard S. Lehrich argued the cause for appellant.

Sara B. Liebman, Assistant Prosecutor, argued the cause for respondent (Lisa M. Dudzinski, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Vladimir Diaz, appeals the Law Division's order of July 31, 2007, denying his petition for post-conviction relief ("PCR") arising out of his 1997 guilty plea to a charge of simple possession of cocaine. The State opposes defendant's appeal on the merits, and also procedurally argues that the PCR judge should have dismissed the petition as time-barred under Rule 3:22-12(a).

For the reasons explained herein, we affirm the trial court's decision to address defendant's petition on its merits, notwithstanding the State's assertion of a procedural bar under Rule 3:22-12(a). However, we remand for further development of the record with respect to defendant's criminal intake form, a document that the State presented for the first time on this appeal and without its remaining pages.

The following background is pertinent to this appeal. In February 1997, defendant was arrested in Elizabeth after police stopped and searched the motor vehicle in which he was a passenger. Two bags of cocaine were discovered on the floor of the vehicle. Defendant was initially charged, pre-indictment, with possession of cocaine with intent to distribute it, N.J.S.A. 2C:35-5(b)(2); possession of cocaine with intent to distribute it within a school zone, N.J.S.A. 2C:35-7; simple possession of cocaine, N.J.S.A. 2C:35-10(a)(1); and possession of narcotics paraphernalia, N.J.S.A. 2C:36-2. A Union County grand jury subsequently issued an indictment against defendant and several other persons. The sole count of the indictment pertaining to defendant alleged third-degree simple possession of cocaine, N.J.S.A. 2C:35-10(a)(1), and it did not charge him with any other offenses.

Defendant, represented by counsel, appeared before the trial court on December 8, 1997, and entered a guilty plea to the simple possession charge. He did so pursuant to the terms of a plea agreement with the State, in which the State agreed to recommend a probationary sentence. The court accepted the plea. Consistent with the plea agreement, defendant was sentenced on February 6, 1998, and was required to complete a three-year term of probation, a six-month suspension of his driver's license, one hundred hours of community service, a drug evaluation, and to pay the customary fines and penalties.

Defendant did not appeal his sentence, and he successfully completed its terms. He apparently has not been charged with any subsequent criminal offenses.

By way of background, defendant emigrated with his parents to the United States from Cuba in 1980 when he was seven years old. He has resided in the United States since that time. At the time of the entry of his guilty plea, defendant was twenty-three years old. Defendant has an eleventh-grade education. He speaks and reads English with fluency and has not required an interpreter when he has appeared in court. Although defendant is not a citizen of the United States, he holds a government-issued work permit and has been gainfully employed as a fence installer. He is married and has children who also reside in the United States.

There was no discussion on the record of defendant's lack of United States citizenship or the potential deportation consequences of a conviction during his plea hearing in December 1997 or his sentencing in February 1998. As part of the plea agreement, defendant and his trial attorney signed a standard plea form. With respect to defendant's immigration status, Question 17 of the form read:

17. 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? [YES] [NO] [N/A]

The response to that question was circled "n/a," signifying "not applicable." During the plea colloquy, neither the trial judge, the prosecutor, nor defense counsel posed any questions to defendant about that response.

In 2006, defendant, who had been trying to obtain a United States passport for licensure purposes, was advised by immigration authorities that he was subject to deportation because of his drug conviction. According to defendant, this was the first time that he learned that his 1997 guilty plea could lead to deportation. He retained an immigration lawyer to represent his interests who attempted through administrative processes to keep defendant lawfully in this country.

Having learned that his residency status was in jeopardy, defendant also retained counsel to help him seek PCR relief. Accordingly, on September 12, 2006, defendant filed, through counsel, a PCR petition in the Law Division. The petition alleged that defendant had not received the effective assistance of counsel in connection with the deportation consequences of his conviction. As a remedy, defendant sought to vacate his guilty plea and have the case returned to the trial list.

Attached to defendant's petition, among other documents, was a certification from his former trial counsel. The attorney stated that she had no independent recollection of the facts and circumstances of defendant's plea and sentencing. She further stated that it was impossible for her to recall why the answer to question 17 on defendant's plea form had been circled "n/a." However, trial counsel attested that she "would not have circled that answer . . . unless [she] believed the answer to be true."

Trial counsel acknowledged in her certification that her awareness of the deportation consequences of criminal convictions increased since the time that she handled defendant's plea in 1998. She was unable to recall if she was aware at the time of defendant's plea that he was born in Cuba. She was also unsure whether she had completed the plea form, including question 17, in defendant's presence, or whether she had specifically reviewed that response with him. Counsel specifically conceded that she could have afforded defendant better representation on this aspect of the case. As she elaborated:

7. In any event, based on my review of the documents and my knowledge of the manner in which I customarily proceeded with guilty pleas and sentencings, I can only conclude that in this case I probably believed, when defendant's guilty plea was entered, that he did not face the risk of deportation as a consequence of the conviction resulting from the plea. I would not have completed defendant's guilty plea form as I did, and put a "not applicable" answer to question #17 on that form, if I believed defendant was in fact subject to deportation as a result of the plea.

8. Further, if I reviewed the deportation consequences of the plea with defendant, as I usually do, I would have told him that the risk of deportation was not applicable, and if I failed to review the question with him specifically, I still had him sign documents that stated the risk not to be applicable. Either way, it is clear from my review of the documents that I did not properly advise the defendant as to the immigration consequences of his plea, and that I apparently allowed defendant to enter the plea under the mistaken belief that it would not subject him to deportation[.]

[(Emphasis added).]

The PCR petition, which the State opposed, was referred to the same judge who had taken defendant's guilty plea and sentenced him. The judge preliminarily found that the petition was not time-barred by Rule 3:22-12, which generally requires that PCR relief be sought within five years of sentencing, because he found that defendant had shown excusable neglect for his delay. Ibid. The judge therefore decided that he would reach the merits of the petition, and he scheduled an evidentiary hearing.

At the outset of the ensuing hearing, the prosecutor sought reconsideration of the court's procedural ruling under Rule 3:22-12. The judge reserved decision on that point. He then heard testimony from defendant and his former trial counsel, both of whom were cross-examined by the State.

Defendant testified that he never discussed with his trial counsel that he was not a citizen of the United States. He has no recollection of her ever asking him about that subject. He did not remember going over the plea form with his attorney or even signing it. He reiterated that he would not have pled guilty had he been advised that a conviction could result in his deportation. Defendant claimed that he was innocent of possessing the drugs found in the car, that he had pled guilty simply to avoid exposing himself and his family to a greater sentence and that he would have contested his guilt at trial if he had known at the time that he could be deported.

Defendant's former trial attorney reiterated at the hearing that she had no specific recollection of discussing deportation consequences with him. She also could not say for sure whether she knew at the time that defendant was born in Cuba. Counsel was unsure why question 17 on the plea form had been answered "n/a." She did explain what her customs and practices had been in completing plea forms during that time frame:

I would talk to a client, obviously get to a point where we know there's going to be a plea and it's going to be entered. I would get the forms, I would fill out some basic information, name and indictment number, accusation number, whatever it be in that particular case. And again, depending on the time allotted, sometimes I would go through each question, sometimes I would answer some of the questions, circle some of the answers myself as to what I knew about the case or the person and ask them those questions that I felt to be relevant.

After considering this testimony, the judge issued a letter opinion on July 31, 2007, denying PCR relief. The judge found it unnecessary to address the State's request to reconsider applying the five-year time bar under Rule 3:22-12. Turning to the merits of the petition, the judge found that it should be rejected because "[t]here is no proof that [trial] counsel misinformed [defendant] about deportation consequences."

The judge principally relied upon an unreported opinion of a different panel of this court in another case involving an incorrect "n/a" response to question 17 on the plea form. The panel held in that unreported case that PCR relief was properly denied because the defendant had not shown that his trial attorney had affirmatively misrepresented the deportation consequences of his conviction to him.

Defendant now appeals, contending that the judge erred in citing and strictly following an unreported opinion of this court. See R. 1:36-3. Defendant maintains that the law should not require proof of an affirmative misrepresentation by trial counsel on deportation consequences in order to show ineffectiveness that warrants PCR relief. Defendant also contends that his circumstances are, in any event, distinguishable from the facts in the unreported case because (1) he claims his innocence, and (2) his former attorney admits that she was generally mistaken at that time about deportation consequences and that she was not likely to have given proper advice on that subject to defendant.

Defendant also notes that the Supreme Court recently revised question 17 of the standard plea form to make clearer the deportation consequences of a conviction and the defendant's citizenship status. The new version now reads:

17. a. Are you a citizen of the

United States? (If no,

answer question #17b) [Yes] [No]

b. 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? [Yes] [No]

Defendant argues that this change in the form, breaking the inquiries in question 17 down to two discrete parts and eliminating the ambiguous "n/a" option, reveals inherent problems with the prior form, particularly in cases like this where the transcribed record of the plea colloquy contains no reference to that question or to deportation issues.

As a threshold matter, we agree with defendant that his petition should not be dismissed as time-barred under Rule 3:22-12. We concur with the judge's initial finding that the particular chronology of events here bespeaks excusable neglect, justifying consideration of defendant's PCR application on its merits. State v. Milne, 178 N.J. 486, 491-92 (2004); See State v. Mitchell, 126 N.J. 565, 576 (1992). The judge did not reject as incredible defendant's sworn assertion that he was unaware until 2006 that his plea to a simple drug possession count, to which he successfully served probation, exposed him to deportation consequences. The documents that appear in the record are consistent with that assertion. Although we recognize the prejudice to the State in possibly reviving this case after over a decade, the potential harm from deporting defendant back to Cuba, where he has not lived for twenty-eight years, is significant enough in this case to warrant review of the merits of the PCR petition.

As to the merits of defendant's petition, we bear in mind the well-settled legal principles relating to claims of ineffective assistance of counsel. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

In responding to defendant's claim as to the first prong of the Strickland/Fritz test, the alleged deficiency of trial counsel's performance, the State includes a document in its appellate appendix that was not considered by the PCR judge. The document, paginated as "Pa1," is the first page of a standard plea intake form. On that page, defendant's birthplace is typed in as "Cuba," and an adjoining box that asks for his citizenship is mechanically filled in with the response "U.S." The State argues that these responses show that defendant was lying about his citizenship before his plea was taken and that his trial attorney would have relied upon these false responses in representing him.

Defendant, who has not moved to strike the exhibit from the appellate record, suggests that the intake form contains a clerical error. He also asserts that there were several other documents in the record, which trial counsel should have seen before the plea hearing, identifying him as a citizen of Cuba. We cannot discern the significance of this exhibit, which does not even contain the remaining pages of the form, without further testimony from defendant and possibly his trial attorney. We do not know how the form was prepared or why it erroneously states that defendant is a citizen of this country. For example, we cannot tell if the response reflects a misunderstanding by the intake officer or, on the other hand, a deceptive response by defendant during his intake interview.

Because this exhibit could affect the ultimate disposition of the merits of this appeal, especially as to the first prong of the ineffectiveness criteria, we remand for reconsideration by the trial court. On remand, the PCR judge shall make findings about the genesis of the intake response, whether it affects his prior findings concerning the interactions between defendant and his trial counsel and their respective awareness of deportation consequences, as well as any other pertinent implications. Counsel shall also furnish the PCR judge with their appellate briefs presenting their legal arguments as they were refined on this appeal, which the judge may consult in reconsidering this matter. The remand shall be completed within sixty days of this opinion.

Affirmed in part and remanded in part. Jurisdiction is retained, unless the matter is mutually resolved on remand.

 

We were advised at oral argument that those efforts remain ongoing and that defendant has yet to be either deported or granted some form of deportation relief.

(continued)

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A-0237-07T4

December 26, 2008