STATE OF NEW JERSEY v. JUNIOR FRANCOIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3277-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUNIOR FRANCOIS,

Defendant-Appellant.

_____________________________________

June 21, 2011

Argued March 9, 2011 - Decided

Before Judges Fuentes, Ashrafi and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Union County, Accusation No. 07-07-0997.

Howard W. Bailey argued the cause for appellant (Bailey & Orozco, LLC, attorney;

Mr. Bailey, on the brief).

Meredith L. Balo, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Balo, on the brief).

PER CURIAM

Defendant Junior Francois appeals from an order of the Law Division dated January 29, 2010, denying his petition for post conviction relief (PCR) following an evidentiary hearing. We affirm.

The PCR petition alleged ineffective assistance of counsel in failing to advise defendant correctly at the time of his guilty plea about the immigration and deportation consequences of his plea and conviction. See Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010); State v. Nunez-Valdez, 200 N.J. 129 (2009). Defendant contends the Law Division erred in rejecting his contention that he would not have pleaded guilty to a drug charge had he been correctly advised that he would, rather than he may, be deported.

The relevant facts are contained in the court's file and were further developed at the evidentiary hearing on January 28, 2010. In May 2007, Elizabeth police were investigating suspected drug sales out of defendant's residence on Lowden Street and had obtained an anticipatory search warrant for that location. They conducted surveillance outside the residence and observed a hand-to-hand transaction between a juvenile and another person. They stopped that person a few blocks away and found a bag of suspected cocaine in his possession. The police then executed the search warrant at defendant's residence and found sixty-eight similar bags of cocaine as well as drug paraphernalia. They arrested defendant. On the same day, defendant gave a videotaped confession stating he had supplied cocaine to the juvenile to sell.

Defendant was charged in two complaints with third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1); third-degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1); third-degree distribution of cocaine in a school zone, N.J.S.A. 2C:35-7; second-degree distribution of cocaine within five hundred feet of public housing, N.J.S.A. 2C:35-7.1; second-degree using or employing a juvenile to distribute cocaine, N.J.S.A. 2C:35-6; and disorderly persons possession of drug paraphernalia, N.J.S.A. 2C:36-2.

In July 2007, defendant entered into a plea agreement, waived indictment, and pleaded guilty to an accusation charging second-degree using or employing a juvenile to distribute an illegal drug. He was sentenced in November 2007 in accordance with the plea agreement to five years imprisonment with one year of parole ineligibility. The other charges were dismissed. Defendant did not appeal his conviction and sentence.

In March 2009, defendant filed his PCR petition alleging ineffective assistance of counsel, including in failing to discuss with him the deportation consequences of his guilty plea. He stated he was then being held in custody by federal authorities pending deportation proceedings. The record does not specify defendant's immigration status except that he is not a United States citizen.

Two witnesses testified at the evidentiary hearing on the PCR petition defendant and his attorney at the time of the guilty plea. Judge Stuart Peim heard the testimony and made the following findings of fact:

[P]lea counsel met with his client four times, twice in his office, twice in connection with court proceedings, but at those court proceedings he testified he had lengthy discussions with the defendant. He reviewed the discovery with the defendant, went over potential motions with him. He didn't believe any motions to suppress had much chance of success. He didn't think much of defendant's chances at trial.

The case involved a search pursuant to a search warrant signed by Judge Espinosa. A complete confession that was on the video from the defendant. There was also a police surveillance of the juvenile from the defendant's home to the buyer where the police observed a hand-to-hand transaction between the juvenile and the buyer. The buyer was then arrested with the CDS on him.

The plea was to a five with a one, which was the lowest end of the second-degree range. Based on the testimony of plea counsel, the defendant was not interested in or in his words didn't seem particularly interested in any immigration issues. His total focus was on the jail time, why did he have to go to jail. Others he knew with CDS charges got probation.

On the date of the plea, plea counsel read Number 17 then Number 17 in the plea form to the defendant. Do you understand quote, "Do you understand that if you're not a U.S. citizen or a national, you may be deported by virtue of your plea of guilty." The defendant indicated that he understood that. That . . . consequences of his plea could result in him being deported. The defendant didn't ask any follow-up questions, didn't ask anything about what was his chance of getting deported, how likely was it, what was the criteria for him getting deported or not.

Plea counsel testified that he was not versed in the immigration law and if defendant raised any questions or concern in regard to Question No. 17 he would have asked for an adjournment and either consulted with or referred the defendant to an immigration lawyer.

During the guilty plea Judge Triarsi indicated to the defendant:

Question: By entering the

plea you subject yourself to possible

deportation. Do you understand

that?

And the defendant answered:

Answer: Yes.

. . . .

I find that the defendant here was not concerned at the time of the plea and throughout the time of sentencing about a deportation. His total concern was about how much jail time he would have, why he would not get probation, and staying out of jail for as long as possible. I base this on [plea counsel's] testimony which I find to be credible.

When the defendant was told that . . . the consequences of his plea could be deportation, there were no follow-up questions either to the judge or to his lawyer. The only focus was on jail time.

I would also note that this was an extremely strong case against the defendant where defense counsel thought there was little chance of success. There was a total confession that was on video. There was a search pursuant to a search warrant. And there was extensive surveillances of what was going on.
 
And . . . I do not find that there was a misrepresentation made. There could be an argument that there wasn't enough disclosed, but there was not a misrepresentation. The defendant was told that the consequences of his plea could be deportation and he exhibited no [interest] in that fact. He said he understood it and there was no reaction to it.

Based on the defendant's response to the questions or the statements that the consequences of his plea may result in deportation, based on the statement the Judge made to him that was on similar ground based on the fact that his only total focus of his concerns regarded how much jail time he would have and why he was not getting probation, that there was totally no reaction to being told that the consequences could be deportation and that there was no reaction, no response, no follow-up questions, no expressions of concern, I find that, factually, that the defendant has not met [his] burden . . . to go to trial with little or no chance of success or plead to an offense that would trigger deportation. In either circumstances defendant would likely face deportation.

Judge Peim assumed without deciding that the advice given by plea counsel was inadequate under the holding of Nunez-Valdez, supra, 200 N.J. 129.1 Thus, for purposes of his decision, the judge assumed that defendant had established the first part of the two-part test of Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984), and State v. Fritz, 105 N.J. 42 (1987), for claims of ineffective assistance of counsel. He concluded, however, that defendant had not proven the second part, that he was prejudiced by his attorney's allegedly deficient representation. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); State v. DiFrisco, 137 N.J. 434, 457 (1994). The judge found that defendant's acceptance of the plea offer did not turn on whether he may or he would be deported.

On appeal, defendant argues:

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S PETITION FOR POST-CONVICTION RELIEF.

A. THE FAILURE TO PROVIDE A

CLIENT WITH ACCURATE INFORMATION REGARDING THE

MANDATORY DEPORTATION CON-

SEQUENCES OF A PLEA, CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL.

B. THE CLEAR ASSERTION OF THE

CLIENT THAT HE WOULD NOT HAVE

ACCEPTED THE PLEA IF HE HAD

BEEN ADVISED OF THE MANDATORY

DEPORTATION CONSEQUENCES

ESTABLISHES THAT THE CLIENT

WAS PREJUDICED BY THE REPRE-

SENTATION.

C. THE PADILLA CASE DOES APPLY TO

CASES ON COLLATERAL REVIEW, AS

IT DOES NOT ESTABLISH A NEW

RULE OF LAW.

In a PCR appeal, our standard of review is plenary on questions of law, but the factual findings of the trial court are granted deference if they are supported by adequate, substantial, and credible evidence. See State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Having reviewed the record of the proceedings in the Law Division, we find substantial credible evidence supporting the court's findings. In particular, the evidence supported the court's finding that defendant's decision to plead guilty did not depend on the difference between the possibility and the certainty of being deported. Defendant did not prove both parts of the Strickland/Fritz standard to establish prejudicial ineffective assistance of counsel. We affirm for the reasons stated in the decision of Judge Peim.

We need not address other issues raised on this appeal, namely, whether the advice given by plea counsel was deficient under the holdings of Padilla, supra, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284, and Nunez-Valdez, supra, 200 N.J. 129, and whether the holdings of those cases should apply retroactively to a timely-filed PCR petition. Those issues may be presented and decided in an appeal currently pending in the Supreme Court. See State v. Gaitan, ___ N.J. Super. ___ (App. Div. 2010), certif. granted, ___ N.J. ___ (2011). Their resolution does not affect the result here.

Affirmed.

1 Padilla, supra, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284, had not yet been issued at the time of the Law Division's decision in this case.