STATE OF NEW JERSEY v. FABRICIO DELGADO

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3276-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FABRICIO DELGADO,

Defendant-Appellant.

_____________________________

November 18, 2010

 

Submitted July 20, 2010 - Decided

 

Before Judges Gilroy and Sapp-Peterson.

 

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 98-12-0442.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, of counsel and on the brief).

 

Thomas S. Ferguson, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Fabricio Delgado, an Ecuadorian national, appeals from the December 30, 2008 order that denied his petition for post-conviction relief (PCR). We reverse and remand for further proceedings consistent with this opinion.

I.

On December 10, 1998, defendant was charged under a Warren County Accusation with third-degree possession of a controlled dangerous substance (CDS) (acetaminophen and codeine), N.J.S.A. 2C:35-10a(1). On January 20, 1999, defendant entered Warren County's pretrial intervention program (PTI). On February 3, 2000, defendant was terminated from the program and the charge was reactivated, defendant having failed to comply with the terms of PTI.

On May 4, 2000, with the assistance of a Spanish-speaking attorney and a Spanish interpreter, defendant entered into a negotiated plea agreement with the State and pled guilty to the charge. Although the interpreter provided assistance to defendant at the time the plea was accepted by the court, the interpreter did not assist defendant in completing and signing the plea form. In return for defendant's plea, the State recommended that the court sentence defendant to probation and time served. Additionally, the State agreed to recommend that the court expedite sentencing because defendant was then under an active detainer from the United States Immigration and Naturalization Service (INS). The plea form referenced the detainer in paragraph 13: "Expedited Sentencing. Defendant has INS detainer." The plea form also indicates that defendant answered "yes" to the question in paragraph 17 of the form, which then read: "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?"

At the plea hearing, after reviewing the plea form, the following colloquy occurred among the court, defense counsel and defendant.

The Court: All right. [Defense counsel], did you discuss the consequences of this plea with your client?

 

[Defense Counsel]: Yes, I did.

 

The Court: And review the contents of the plea form?

 

[Defense Counsel]: Yes, I did.

 

The Court: Did he appear to understand it?

 

[Defense Counsel]: Yes, he did.

 

The Court: Did you use the interpreter for this process?

 

[Defense Counsel]: No, Judge.

 

The Court: You were able to communicate with him?

 

[Defense Counsel]: Yes. I understand Spanish and Spanish/English and English, as does my client.

 

The Court: Okay Mr. DelGado, the charge is possession of a controlled dangerous substance. Do you understand that charge?

 

Defendant: Yes.

 

The Court: Did you have enough time to talk to your attorney about the plea?

 

Defendant: Yes.

 

The Court: Are you satisfied with the advice of your attorney?

 

Defendant: Yes.

 

The Court: Did you sign and initial this plea agreement?

 

Defendant: Yes.

 

The Court: Before you did . . . was this plea agreement read to you?

 

Defendant: Yes.

 

The Court: Was it explained to you?

 

Defendant: Yes.

 

The Court: Do you understand it?

 

Defendant: Yes.

 

. . . .

 

The Court: The charge is that you had a controlled dangerous substance in your possession on October 11, 1998. Did you have a controlled dangerous substance in your possession on that date?

 

Defendant: Yes.

 

The Court: Are you guilty of the charge?

 

Defendant: Yes.

 

The Court: Is anyone forcing you to admit your guilt?

 

Defendant: No.

 

The Court: Anyone threaten you or pressure you in any way into pleading guilty?

 

Defendant: No.

 

The Court: Have you told me the truth?

 

Defendant: Yes, sir.

 

The Court: Are you telling me you are guilty because you are guilty?

 

Defendant: Yes, sir.

 

On June 30, 2000, pursuant to the terms of the plea agreement, the trial court sentenced defendant to three years of probation, conditioned on serving ninety-four days in the Warren County Correctional Center, with credit for ninety-four days served. The court also imposed all appropriate fines and penalties.

On April 22, 2007, while then residing in Arkansas, defendant filed an application to register for permanent residence with the United States Citizenship and Immigration Services (CIS) of the United States Department of Homeland Security. On December 10, 2007, CIS issued a notice of decision denying defendant's application under Sections 212(a)(2)(A)(i)(II) and 212(h) of the Immigration and Nationality Act (INA). Specifically, the notice of decision provided:

On May 4, 2000, you were convicted in the New Jersey Superior Court of Warren County of possession of a controlled dangerous substance (acetaminophen [with] codeine) in the 3rd degree. Therefore, you are inadmissible to the United States under section 212(a)(2)(A)(i)(II) of the INA.

 

Section 212(h) provides a waiver for certain grounds of inadmissibility due to criminal activity. However, for drug possession, only a single offense of simple possession of 30 grams or less of marijuana may be waived. Therefore, there is no waiver for your conviction.

 

You are not admissible to the United States, and no waiver is available to forgive your grounds of inadmissibility. Therefore, your application must be and is, hereby, denied.

 

On January 9, 2008, defendant filed an administrative appeal from the decision. On March 22, 2008, the CIS denied the appeal.

On June 24, 2008, defendant filed a petition for PCR arguing that he was denied effective assistance of trial counsel by his attorney failing to inform him of the collateral consequences that pleading guilty to the charge would have on his federal immigration status. That is, that "the offense [he] was pleading guilty to would automatically preclude [him] from staying in the United States." Defendant asserted that if he had been so informed, he would not have pled guilty to the Accusation. Lastly, defendant argued that he was not able to hear or comprehend what had occurred at the plea proceeding because of a congenital hearing loss and a language barrier, contending that neither the interpreter nor his attorney communicated in "the Spanish language as spoken in [his] native country."

On December 30, 2008, the trial court entered an order, supported by a written decision, denying defendant's petition without conducting an evidentiary hearing. In so deciding, the court found defendant's petition untimely and meritless. The court determined that petitioner's claim that he was not able to hear or comprehend everything that occurred at the plea hearing was not only time barred, but was also procedurally barred by Rule 3:22-4, as the argument could have been presented on direct appeal. All information pertaining to that argument was known to defendant at time of the plea proceeding.

As to defendant's argument that he was denied effective assistance of counsel, the court again concluded that the argument was time barred, the petition having been filed more than five years after the date of conviction, Rule 3:22-12(a), and substantively, the court found that defendant failed to establish a prima facie claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Specifically, the court determined that the plea proceeding transcript contradicted defendant's allegations that "his attorney failed to explain the potential negative immigration consequences associated with pleading guilty," and that if he "had known the immigration consequences of his plea, he would not have pled guilty." The court explained:

This [c]ourt does not find any evidence that the attorney's representation was deficient. In order to make such a finding, this [c]ourt would have to believe that either the attorney was lying to the [c]ourt or that she was incapable of understanding her client. The Petitioner has failed to present a prima facie case commanding an evidentiary hearing on the issue of ineffective assistance of counsel. The Petitioner has failed to make a showing that counsel's assistance was constitutionally ineffective, as required by Strickland's first prong. As a claim of ineffective assistance of counsel must satisfy both prongs of Strickland, Petitioner cannot make the required showing. . . .

 

On appeal, defendant argues:

POINT I.

 

THE PETITION SHOULD NOT HAVE BEEN TIME-[BARRED].

 

POINT II.

 

IT WAS ERROR NOT TO ALLOW THE DEFENDANT AN EVIDENTIARY HEARING OR GRANT HIS APPLICATION FOR POST-CONVICTION RELIEF.

 

A. THE PETITIONER SHOULD BE PERMITTED TO WITHDRAW HIS PLEA.

 

POINT III.

 

PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

 

A. TRIAL COUNSEL FAILED TO ADVISE THE PETITIONER OF THE COLLATERAL CONSEQUENCES OF HIS PLEA.

 

II.

 

We first address defendant's argument that the trial court erred in denying his petition as time barred pursuant to Rule 3:22-12(a). In 2008 when defendant filed his PCR petition, that rule then provided in pertinent part, that the petition had to be filed within five years "after rendition of the judgment or sentence sought to be attacked unless [the petition] alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." R. 3:22-12(a).

We agree with the trial court's determination as it relates to defendant's argument that he was unable to understand what occurred at the plea proceeding because of the language barrier and his hearing impairment. Those facts were known to defendant at time of the plea proceeding and could have either been raised on direct appeal or via a petition for PCR within five years of conviction. However, we reach a different conclusion as to defendant's argument of ineffective assistance of counsel.

Courts have considered a defendant's application to relax the time bar in Rule 3:22-12(a) pursuant to Rule 1:1-2 when necessary to remedy an "injustice" if the five-year time period was strictly enforced. See State v. Mitchell, 126 N.J. 565, 576-80 (1992). In applying Rule 1:1-2, the court must determine whether there are exceptional circumstances to relax the time bar. Id. at 580. In so doing, the court should consider, "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." Ibid.

The petition should not have been barred as untimely because events establish that defendant may suffer an injustice if the time limit is not relaxed. State v. DiFrisco, 187 N.J. 156, 168 (2006); Mitchell, supra, 126 N.J. at 579-80. The 2007 CIS decision was the catalyst for defendant seeking to withdraw his guilty plea. Although the State might be prejudiced if it were to try this case long after the arrest, that prejudice is greatly mitigated by the fact that defendant has completed his sentence on the conviction. However, on the other side of the coin, defendant faces the devastating consequence of being deported from the United States.

III.

We next address defendant's argument the trial court erred in denying his petition without providing him an evidentiary hearing. Under the facts presented, we agree.

The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination whether a defendant has made a prima facie showing of the claim. State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. Ibid. Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland. See State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the precepts of Strickland in New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008).

"The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case." Allegro, supra, 193 N.J. at 366. To prove the second prong of Strickland, a defendant must prove "'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 366 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Id. at 367 (quoting State v. Castagna, 187 N.J. 293, 315 (2006)).

Our Supreme Court, in considering an ineffective assistance of counsel claim, recently addressed the issue of whether an attorney has an obligation to advise his or her client of possible federal immigration consequences before the defendant pleads guilty to an offense. State v. Nunez-Valdez, 200 N.J. 129, 138 (2009). The Court addressed the claim under New Jersey's Constitution based on the defendant's attorney misinforming the defendant as to immigration consequences when the defendant entered his guilty plea. Id. at 139-40. The Court held that counsel's misinformation could form a basis to vacate a guilty plea under Strickland, supra. Id. at 143.

In so holding, the Court reaffirmed its prior approval of Chief Justice Wilentz's observation in his dissent in State v. Heitzman, 107 N.J. 603, 606 (1987) "that whether a defendant should be advised of 'certain consequences of a guilty plea should not depend on ill-defined and irrelevant characterizations of those consequences.'" Id. at 138 (quoting State v. Bellamy, 178 N.J. 127, 139 (2003)); see Heitzman, supra, 107 N.J. at 606, (Wilentz, C.J., dissenting) ("It matters little if the consequences are called indirect or collateral when in fact their impact is devastating.").

Subsequent to the Court's decision in Nunez-Valdez, the United States Supreme Court also held that in an ineffective assistance of counsel case based on the defendant's attorney's failure to inform the defendant of federal deportation consequences of a plea, or misinforming the defendant of those consequences, the direct versus collateral consequence distinction is ill suited for evaluating the claim. Padilla v. Kentucky, ___ U.S. ___, ___, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). The Supreme Court concluded "that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel." Ibid. Accordingly, the Court determined that counsel has an obligation to inform his or her client whether a plea carries a risk of federal deportation, id. at ___, 130 S. Ct. at 1486, 176 L. Ed. 2d at 299, and the failure to do so establishes the first prong of the Strickland test. Id. at ___, 130 S. Ct. at 1484, 176 L. Ed. 2d at 297.

We conclude that the trial court erred in denying defendant's petition based on his ineffective assistance of counsel argument without conducting an evidentiary hearing. Defendant contends that his attorney never informed him of the collateral consequences that pleading guilty to the charge would have on his federal immigration status and that if he had been so informed, he would not have pled guilty to the charge. Because the record is silent as to any direct evidence that defendant's attorney properly informed him of federal immigration consequences upon pleading guilty to the charge, an evidentiary hearing is necessary to flesh out exactly what his attorney told defendant as to that possible consequence. We acknowledge that the record contains facts, which run counter to defendant's argument. For example, defendant was under an active detainer by INS at the time he entered his plea, and he answered in the affirmative to paragraph 17 of the then plea form. Those facts should be considered by the trial court in light of what is disclosed during the evidentiary hearing. The court should inquire as to the nature of the INS detainer to determine whether it was sufficient to place defendant on notice that a conviction of the drug offense could bar him from legally remaining in the United States, and what his attorney may have explained to defendant concerning question 17 on the plea form. Accordingly, we reverse and remand for an evidentiary hearing.

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