STATE OF NEW JERSEY v. JOSE NUNEZ-VALDEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2138-05T12138-05T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JOSE NUNEZ-VALDEZ,

Defendant-Respondent.

_________________________________________________

 

Submitted April 9, 2008 - Decided

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Indictment No.

2005-06-98.

Joshua M. Ottenberg, Acting Camden County

Prosecutor, attorney for appellant (Robert

K. Uyehara, Acting Assistant Prosecutor,

of counsel, on the brief).

Loughry and Lindsay, LLC, attorneys for

respondent (Justin T. Loughry, on the brief).

PER CURIAM

The State of New Jersey appeals from the order of November 7, 2005 granting post-conviction relief (PCR) to defendant Jose Nunez-Valdez, arguing that the PCR judge's determination in the matter was not supported by the facts as disclosed at the PCR hearing. Following our review of the record in light of the arguments of counsel and applicable legal precedent, we agree and reverse.

In warrants issued on June 30, 1997, defendant was charged with second-degree attempted sexual assault in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2c and fourth-degree criminal sexual contact in violation of N.J.S.A. 2C:14-3b following allegations, among others, that defendant had touched the vagina and breasts of his seventeen-year-old neighbor, by force and without her consent. Defendant retained counsel, Aaron Smith, and on June 10, 1998, he pled guilty to an accusation charging the fourth-degree crime of criminal sexual contact, receiving as his sentence five years of non-custodial probation, conditioned upon psychiatric evaluation and treatment, if warranted. The reporting and supervisory provisions of Megan's Law, N.J.S.A. 2C:7-1 to -21, were found to be applicable.

Defendant was represented at the plea hearing by Smith's associate, Troy Archie. In connection with his plea, defendant executed a plea form that stated, in question seventeen: "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 response, "Yes," was circled on the form, and the page containing the question and response was signed by defendant. When pleading guilty, defendant acknowledged through an interpreter that he understood the questions on the plea form, and that he answered them truthfully. Additionally, defendant acknowledged that he had touched the breasts and vagina of the minor victim, that he did so for his own sexual arousal, that his contact was purposeful, and that he "did force her."

Defendant was sentenced in accordance with the plea agreement on July 31, 1998. At sentencing, defendant corrected the pre-sentence investigation report, which had indicated he was a citizen of the United States, stating through Spanish-speaking counsel, Juan Gonzalez, another associate of Smith's, that he was a legal resident alien and a citizen of the Dominican Republic. In accordance with the plea agreement, defendant did not appeal from his conviction.

Approximately two years later, on September 27, 2000, the United States Immigration Court ordered that defendant be deported to the Dominican Republic. Defendant appealed, and on August 8, 2002, the Board of Immigration Appeals affirmed his order of deportation.

Shortly thereafter, on October 11, 2002, defendant sought post-conviction relief, claiming in his verified petition that, although he had retained Aaron Smith as counsel, for "reasons unknown to Petitioner," he was represented at the plea hearing by Troy Archie, with whom he communicated only with the aid of an interpreter. According to defendant:

Mr. Archie did not accurately or fully discuss with Petitioner in any way the possible consequences of a conviction for criminal sexual contact under the Immigration and Naturalization Act or other immigration-related laws. Rather, Mr. Archie communicated that there would be no problems with immigration and the only consequence of this conviction would be probation in the Superior Court. Mr. Archie had also assured [defendant's] brother in a separate conversation that a fourth-degree offense would not cause an immigration problem.

In fact, the petition stated, 1996 statutory amendments to federal immigration law provided that conviction for a sexual offense constituted mandatory grounds for deportation. The petition continued by stating that if defendant had been provided accurate information regarding his immigration status, he would not have pled guilty. Additionally, defendant claimed that there was an inadequate factual basis in his plea for the "physical force" element of his conviction pursuant to N.J.S.A. 2C:14-3b.

Defendant provided de bene esse testimony at a PCR hearing conducted on June 14, 2004, immediately prior to his deportation. At the hearing, defendant testified that he had been born in the Dominican Republic, where he remained until November 1980, when at age eighteen, he moved to the United States. At the time of the plea hearing, he was a legal resident alien. Defendant stated that he had received an eighth grade education in the Dominican Republic, and despite a twenty-four-year residence in the United States, his understanding of English remained very limited. Defendant was married and the father of three children, all residing in the United States. However, his marriage had occurred in the Dominican Republic and only one child had been born in this country.

According to defendant, following his arrest on the sexual assault charges, he was advised by his attorney, Smith, to plead guilty to fourth-degree criminal sexual contact, for which he would receive a sentence of five years of probation. Otherwise, he faced ten years in prison. Defendant testified that he had discussed his "immigration status" with Smith, and was advised by him that "nothing was going to happen to me."

Defendant testified further that at the plea hearing, he was represented by Smith's "helper or brother," Archie, who likewise told defendant that his immigration status would not "play a part" if defendant were to plead guilty to the fourth-degree crime. After repeated questioning, defense counsel elicited from defendant the statement that he would not have pled guilty if he had known he would be deported.

When asked about the plea form, defendant testified that Archie filled it out and, although there was a translator speaking, he was never told "that something was going to happen" with immigration or otherwise informed of the contents of the form. Defendant testified on cross-examination that the translator, although present, "did not read a thing to me. She was also saying that I should plead guilty." When asked whether defendant had asked the translator to read the plea form to him, defendant responded "yes," but that she refused, stating "it was best if we leave everything like that. It was easier."

When read question seventeen at the PCR hearing, defendant responded: "If I had known that, I would not have pled guilty." Additionally, defendant testified that he did not recall the judge asking him to verify his signature and initials on the plea form. In explaining why he answered "yes" when asked by the judge if he understood the questions on the plea form, defendant responded: "All I did was say yes because the attorney told me I should answer yes to all the questions." The following colloquy then occurred:

Q. Okay. So when the judge then asked were the answers that you gave there the truth and you answered yes, again, you answered yes regardless of whether it was the truth?

A. Yes.

Q. Okay. So you would have said anything that this attorney told you to say. Is that what you're saying?

A. Yes. He told me to say yes to everything.

Q. Okay. And even through some of the things you were saying yes to were false, you were still going to say yes?

A. Yes.

Q. Okay. Do you always just --

A. Yes, because he told me to answer yes to everything.

Q. Okay. Do you always just say whatever your attorney tells you to say regardless of whether it's the truth?

A. Yes. He told me that in the way that it was convenient for him to say yes, for me to say yes, I should say yes.

Defendant admitted that he had never directly asked an attorney whether he would be deported as the result of pleading guilty, but had only asked if there would be problems with immigration.

As a final matter, defendant testified on cross-examination that he had never committed the crime for which he was charged, and particularly, that he had not touched the victim's vagina. Defendant had admitted the crime only because he was instructed to do so by his attorney. According to defendant, everything that he said in court when he pled guilty was false; his testimony had been given as the result of pressure from his counsel.

Approximately one year later, on July 1, 2005, testimony was given at the PCR hearing by defendant's brother, Luis Nunez. Luis, like his brother, testified through an interpreter, but disclosed during a portion of his testimony that was conducted in English that he had a good command of the language. Luis helped his brother to retain Aaron Smith as defendant's attorney and acted as his interpreter when speaking both to him and later to Archie.

Luis testified that he asked Smith whether defendant would be deported because of the case and that Smith responded "that that case did not pertain to that. That was a very simple case, that it was only a fourth degree, that the prosecutor had made that offer because -- what you say -- that she had very little resources, it was a little case." Additionally, Luis testified that despite the fact that he was utilizing an interpreter at the hearing, he had spoken to Smith in English and that he had no problem in understanding Smith's responses. When asked whether defendant was interested in whether there would be an immigration problem, Luis responded "yes."

Contrary to defendant's testimony, Luis stated that Archie had been in Smith's office when Luis questioned Smith regarding immigration and that Archie had not told him "anything different than what Mr. Smith had told [him]." Also, contrary to defendant's testimony that Luis was downstairs in the courthouse at the time defendant pled guilty, Luis stated that he was never present at the courthouse, being unable to locate it.

On July 25, 2005, Troy Archie was called as the final witness at the PCR hearing. Archie testified that he had been admitted to practice law in 1996, that ninety percent of his practice at the time was criminal in nature, and that he represented many Latinos. Although no file in the matter had been located, Archie testified that he recalled representing defendant at the plea hearing and that he had discussed the plea agreement with defendant, with the assistance of a court-appointed interpreter. Archie affirmed that at the time of the plea, he knew that defendant was from the Dominican Republic. He testified that he had discussed question seventeen with defendant, and that they had discussed deportation, although Archie stated that defendant's principal concern was whether he was going to jail. According to Archie, what he remembered was "as long as he wasn't going to jail, he was satisfied." Archie also confirmed that an interpreter had been present while the plea form was being filled out, and that English-speaking family members -- Archie particularly remembered defendant's brother -- were also present. Although he acknowledged that he has seen plea forms in Spanish from time to time, the relevant pages of this particular form were in English.

Archie testified that at the time of the plea, he had not practiced immigration law. However, he had studied that subject in law school. He stated further that he was aware of the federal immigration statute applicable to defendant's crime, and he identified it as " 8 U.S.C. 1251," which he stated dealt with deportable aggravated felonies. In further discussing the ramifications of the plea, including Megan's Law reporting and supervision, the following colloquy occurred:

Q. So, Mr. Archie, you did not tell Mr. Nunez that he need not worry about these things because he was going to be deported. You didn't tell him that, did you?

A. No. Not in that way, no.

Q. Well, you never said to him Mr. Nunez, you are going to be deported when you plead guilty or after you plead guilty to this charge? You did not tell him that, did you?

A. No.

However, Archie testified: "I told him it's a possibility that he would be deported." When asked why, Archie responded:

Well, basically, it's on the form, one, and it's a sexual assault case, so there's a chance that you will get deported. It doesn't mean that you are guaranteed to be deported.

On re-cross examination by PCR counsel, Archie confirmed that he had stated to defendant there was a "possibility" that he would be deported. However, Archie then reiterated that defendant's main concern was whether he would go to jail.

In a written opinion filed on November 7, 2005, the PCR judge ruled in defendant's favor. In doing so, the judge found defendant's testimony at the PCR hearing on direct and cross-examination that Archie, aided by a court interpreter, never discussed the terms of the plea agreement with him to be "totally incredible." The judge additionally found incredible defendant's testimony that he answered "yes" to the questions of the judge at the plea hearing as the result of pressure from Archie. After further reviewing defendant's testimony, the judge concluded:

This court is not at all impressed with the defendant's credibility given the totality of his testimony. However, this view of the defendant by the court must be tempered by the defendant's lack of education, lack of sophistication, and apparently modest level of intellectual and cognitive functioning. Therefore, this court finds that the defendant did express concerns about his legal status in this country as the result of pleading guilty and that his concern in this regard was expressed to both Attorney Smith and Attorney Archie.

Turning to the testimony of defendant's brother, Luis Nunez, the judge found that he had specifically asked Smith whether defendant would have an immigration problem as the result of his plea, and had been assured both by Smith and Archie that he would not. The judge noted that at the time, Smith's "personal life and his legal career were in a significant downward spiral that eventually led to Smith being disbarred by consent for, inter alia, "gross neglect, pattern of neglect, [and] . . . distribution of cocaine." As a result, the judge concluded that it was "highly improbable that Smith did the research necessary to give the defendant and his brother a real awareness that it was virtually certain that the defendant would be deported if he pled guilty as Smith had recommended." The judge stated:

This court has concerns about the reliability of the testimony provided by the defendant's brother. However, on the most important point before this court the immigration advice given by Attorney Smith to the defendant this court finds that Smith advised the defendant that there would be no jail time if he pled guilty and that no immigration problems would result from the defendant's pleading guilty. Therefore, it was reasonable for the defendant to believe that he would not be deported as a result of following Smith's advice and pleading guilty.

The judge then noted that defendant had been represented by Smith during plea negotiations, by Archie at the plea hearing, and by Gonzalez at sentencing. From these facts, the judge concluded: "It is clear that there was absolutely no continuity of representation in regard to a critical matter in the life of this defendant which no doubt contributed in a negative way to the effectiveness of his legal representation."

The PCR judge additionally discussed the testimony of Troy Archie, whom he stated "has appeared before this court on numerous occasions and is held in high regard by this court as a person and for his work as a lawyer." Despite this fact, the judge was "very skeptical" of Archie's testimony that defendant's main concern was to avoid incarceration. In this regard, he noted that Archie did not have defendant's file, he had a very busy law practice that included thousands of cases since 1998, and seven years had intervened between the plea and Archie's testimony. According to the judge,

It makes no sense whatsoever that this defendant, after being in the United States for eighteen years, having obtained permanent resident alien status, and having a job, a wife and three children who reside in the United States, would not be concerned about being deported since deportation would effectively destroy the life that he had built. What seems more plausible is that attorney Archie was highly "influenced" by what Attorney Smith had already told the defendant and his brother that there was no chance the defendant would be deported as a result of pleading guilty.

The PCR judge apparently discounted defendant's continuing ties to the Dominican Republic and the lack of U.S. citizenship on the part of his wife and two of his children.

The judge also took issue with the warning in question seventeen that, if not a United States citizen or national, a defendant entering a plea of guilty "may" be deported. The judge found that, "[g]iven the state of immigration law in June of 1998 . . . the use of the word "may" in the plea agreement itself was an extreme misrepresentation since . . . it was a virtual certainty that the defendant would be deported once he pled guilty." (Footnote omitted.) He stated: "If Archie knew what crimes at the time constituted deportable offenses, he should have covered that point in great detail as part of the defendant's plea retraxit." The fact that the plea form was only supplied in English further contributed to what the judge found to be "an extremely muddled, confusing situation surrounding the entire process leading to defendant's conviction and sentencing."

In his legal analysis, the judge recognized that immigration status constituted a collateral matter, and thus that neither Smith nor Archie had any obligation to raise the issue with defendant. However, the judge held:

in the instant case, immigration and the possibility of deportation were central concerns of the defendant. The defendant's attorneys did not have to raise the subject of immigration with him. Rather, the defendant raised the issue with his attorneys from the first moment of their first meeting. Immigration was not a collateral issue for this defendant; it was a central consideration in his decision to accept or reject the plea agreement. The defendant was, therefore, entitled to reasonably rely on the immigration information provided to him by his attorneys in deciding whether to accept or reject the plea bargain offer.

The State also argues that the defendant knew his immigration status could be affected by his decision to plead guilty to the charge against him because he responded affirmatively to question number seventeen on the plea form, which notifies aliens who plead guilty to a crime that they may be deported as a result. However, the defendant does not read English and an English language plea form was used in this case when a Spanish language plea form was available. In addition, the defendant testified that he answered the form in the manner instructed by Attorney Archie, the defendant's attorney on the day he entered his plea retraxit. Clearly, the defendant believed that his immigration status would not be affected no matter how he responded on the plea form. This conclusion by the defendant was entirely reasonable under the circumstances since Attorney Archie, one of the attorneys who had provided the assurances to the defendant concerning the immigration consequences of his decision to plead guilty, was guiding the defendant through completing the forms necessary to finalize the plea agreement.

After reviewing federal immigration law and concluding that sexual abuse of a minor constituted an aggravated felony pursuant to 8 U.S.C.A. 1101(a)(43) for which deportation was mandatory under 8 U.S.C.A. 1227(a)(2)(A)(iii), the section cited by Archie, the judge stated:

for this defendant, the only real question following his guilty plea was when the federal government would arrive to begin deportation proceedings against him. Therefore, because the defendant's attorneys told him that his immigration status would not be affected by a decision to accept the plea bargain and plead guilty, the defendant was affirmatively "misinformed' by his attorneys as to the immigration consequence that would result from following their advice.

Because the immigration consequence resulting from pleading guilty to the charge against him was material to the defendant's decision and because the defendant's attorneys misinformed him as to the immigration consequence of pleading guilty, and because the defendant reasonably relied on the misinformation provided by his attorneys in deciding to plead guilty, the defendant has met his burden and demonstrated by a preponderance of evidence that his 10 June 1998 guilty plea was not made knowingly, voluntarily or intelligently.

Defendant's plea was vacated as a result, and the warrant against him was restored. The judge rejected defendant's claim that his plea lacked a proper factual basis. No cross-appeal from that latter determination was filed.

In general, we accord deference to the factual findings of a PCR judge, who has had the opportunity to hear and see the witnesses and have a sense of the case that we cannot replicate. State v. Johnson, 42 N.J. 146, 161 (1964). If the judge's findings could reasonably have been reached on sufficient credible evidence present in the record, then we are required to affirm them. Id. at 162. However, our deference dissipates if we are satisfied that the findings were clearly mistaken and so plainly unwarranted that the interests of justice demand intervention and correction. In such a circumstance, we must appraise the record anew and make our own findings and conclusions. Ibid. As the Johnson Court stated:

While this feeling of "wrongness" is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made. This sense of "wrongness" can arise in numerous ways from manifest lack of inherently credible evidence to support the finding, obvious overlooking or under-evaluation of crucial evidence, a clearly unjust result, and many others.

[Ibid.]

In the present matter, our concern with the PCR judge's findings stems from (1) the lack of factual foundation for the judge's conclusion that defendant's primary concern was deportation and thus his unquestioned acceptance of the assertion that defendant would not have pled guilty if properly informed on the subject; (2) his selective and unexplained acceptance of testimony by defendant and his brother regarding their allegedly futile inquiries into the possibility of deportation, while declaring the remainder of the testimony by the two witnesses to be "totally incredible" and unreliable; (3) his rejection of testimony by Archie, while otherwise "highly regarded," that he recalled discussing the subject of deportation with defendant and informing him of the possibility that such could occur; (4) his implicit determination that Archie was unfamiliar with controlling immigration law and misinformed defendant; and (5) the lack of any foundation for the conclusion that defendant's affirmative response to question seventeen was of no import.

Although the PCR judge, if placed in defendant's position, might well have determined that his immigration status was the most significant consideration when determining whether to accept a negotiated plea agreement to a fourth-degree charge or to risk trial on a second-degree charge, we find nothing in the record that would counteract Archie's testimony that defendant's concerns were primarily focused on whether he would serve a custodial sentence. We thus cannot accord the same weight as the judge did to defendant's statement that he would not have pled guilty if accurately informed of the likelihood of deportation.

Further, we cannot accept the judge's conclusion that because Smith was later disbarred as the result of charges of client neglect and criminal conduct, he was unaware of the effect of defendant's criminal conviction on his immigration status, was unwilling to research the issue, and misinformed defendant and his brother on the subject. Although defendant and his brother both attested to having received such erroneous information and relied upon it, the judge articulated no basis for accepting this version of the facts from interested witnesses while rejecting as incredible the remainder of their testimony.

Additionally, we find no basis for the conclusion that Archie failed to recall the aspects of defendant's case to which he testified; that despite having recently taken a course in immigration law, at the time of the plea hearing he was unaware of the immigration law that he accurately cited as applicable to defendant's situation; and that he failed to explain that law to defendant in connection with his discussion of question seventeen of the plea form. Moreover, we can discern no reasoned basis for the judge's determination that defendant regarded question seventeen to be inapplicable to him, that he justifiably answered that question in a manner contrary to the truth; and that Archie's statements led him to do so.

As a final matter, we find nothing particularly unusual or reprehensible in the use of three attorneys from the same firm as counsel to defendant at various stages of his representation. Nothing in the record suggests that by expressing divergent views, the attorneys created the "muddle" that the PCR judge envisioned as having resulted.

An acceptance of the judge's overall credibility determinations leads us to conclude that Archie, not defendant or his brother, was the more credible witness. The accuracy of that conclusion is borne out by a close reading of Archie's testimony, which discloses Archie's careful delineation of those facts that he recalled from defendant's case, which he stated in some detail, and those that he did not. While it is true that seven years had intervened between Archie's representation of defendant at the plea hearing and his testimony, Archie's description of what took place stood unimpeached by testimony the PCR judge viewed as credible. In that regard, Archie testified that, with the aid of an interpreter, he discussed question seventeen and its implications with defendant. To be sure, Archie did not state that deportation was the certainty that the PCR judge posited. Nonetheless, we do not find therein the misstatements that the PCR judge perceived to exist, particularly in the absence of any evidence that deportation inevitably occurs upon conviction of a statutorily enumerated aggravated felony or evidence of a uniform lack of success in appealing from an order of deportation.

In the circumstances presented, and contrary to the PCR judge's conclusion, we find that defendant failed to offer competent proof that he was misinformed of the consequences of his plea, State v. Nichols, 71 N.J. 358, 361 (1976), and thus that the plea was not given voluntarily, knowingly and intelligently. State v. Taylor, 80 N.J. 353, 362 (1979); R. 3:9-2. As a result, we do not find the manifest injustice to exist that defendant must demonstrate in order to vacate his plea, following sentencing. Taylor, supra, 80 N.J. at 362; R. 3:21-1.

Reversed.

 

That provision, now appearing at 8 U.S.C.A. 1227(a)(2)(A)(iii) states:

Any alien . . . in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:

* * *

(2) Criminal offenses

(A) General crimes

* * *

(iii) Aggravated felony

Any alien who is convicted of an aggravated felony at any time after admission is deportable.

As the State notes, defendant was charged under two warrants, one of which was dismissed at sentencing pursuant to the plea agreement. Both should have been restored when the plea was vacated. State v. Rhein, 117 N.J. Super. 112, 121 (App. Div. 1971).

(continued)

(continued)

22

A-2138-05T1

RECORD IMPOUNDED

July 16, 2008