STATE OF NEW JERSEY v. JOSE VANEGAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6152-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEVANEGAS, a/k/aJOSE VARGAS,

Defendant-Appellant.

__________________________________

March 29, 2011

Argued January 3, 2011 - Decided

Before Judges Reisner and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 02-03-0699 and 05-10-1455.

JustinT. Loughry,Designated Counsel,argued the causefor appellant(Yvonne Smith Segars, PublicDefender, attorney;Mr. Loughry, on the brief).

Teresa A. Blair, Deputy Attorney General, argued the cause for respondent (Paula T. Dow, Attorney General, attorney; Ms. Blair, of counsel and on the brief; Frank J. Ducoat, Deputy Attorney General, on the brief).

PER CURIAM

Defendant Jose Vanegas appeals from the trial court's April 24, 2009 order, entered after an evidentiary hearing, denying his petition for post-conviction relief ("PCR"). We affirm.

Defendant, a non-citizen, claims he was misinformed by his former trial counsel about the deportation consequences of his guilty plea in January 2003 to third-degree attempted theft from a person, and his subsequent guilty plea in May 2006 to fourth-degree criminal sexual contact. The 2006 plea also included defendant's admission to a violation of probation on the 2003 theft offense. He filed his PCR application in 2008, after federal immigration officials sought to deport him based on his convictions.

After reviewing defendant's PCR application, the pertinent plea forms from 2003 and 2006, and transcripts of the two plea proceedings, the judge scheduled an evidentiary hearing concerning the 2006 plea. The judge found an evidentiary hearing unnecessary as to the 2003 plea because defendant had not presented a prima facie case of his counsel's ineffectiveness. Defendant specifically acknowledged on the plea form in 2003 that he knew that he could be deported as a result of his guilty plea. Defendant also stated at the 2003 plea hearing that he was "definitely" satisfied with the representation of his attorney, who had favorably negotiated a disposition far less severe than defendant had been exposed to under the indictment.

Unlike defendant's completed plea form from 2003, his 2006 plea form did not acknowledge that he lacked United States citizenship. Instead, the relevant question on the 2006 plea form, Question 17, which asked whether defendant understood the immigration consequences of his plea, was mistakenly circled "n/a," signifying "not applicable." The PCR judge decided to explore this discrepancy on the 2006 form in an evidentiary hearing.

The sole witness at the evidentiary hearing was the attorney who had represented defendant at his plea and sentencing in 2006. That attorney testified that he had "numerous" discussions with defendant regarding his legal status in this country, and that he recognized at the time that it was an issue. The attorney also testified that he was "very clear" with defendant in explaining that his immigration status was an issue. The attorney recalled that he had cautioned defendant that if he were convicted of second-degree sexual assault, as charged in the indictment, he would face deportation after serving a significant custodial sentence for that crime. He advised defendant to accept the best plea bargain that could be attained, which would get him into the "best possible position" concerning his immigration status. As a result of counsel's efforts, he negotiated a plea to the fourth-degree offense of criminal sexual contact, without any obligation for defendant to submit to parole supervision for life.

Defendant did not testify at the evidentiary hearing. He listened to his former counsel's testimony by speaker phone from a detention facility, and thereafter privately spoke with his PCR attorney by telephone. Upon consulting with his PCR attorney, defendant confirmed on the record that he did not wish to testify.

After the evidentiary hearing concluded, the PCR judge issued a written opinion. In her opinion, the judge found that defendant had failed to meet his burden of proof that the representation of his former counsel in 2006 was deficient. The judge specifically found the unrebutted testimony of defendant's former counsel to be credible, concluding that defendant "was not misinformed about the immigration consequences of his 2006 plea."

Although the judge recognized that defendant's former counsel did allow Question 17 on the 2006 plea form to be answered erroneously, she found that mistake did not amount to ineffective assistance of counsel in this context. In particular, the judge ruled that defendant failed to demonstrate that, "but for counsel's errors, he would have pled guilty and would have insisted on going to trial." Hence, there was no actual prejudice to defendant arising out of counsel's mistake, an essential element to a showing of ineffective assistance of counsel under the Sixth Amendment and under cognate New Jersey law. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (delineating a two-part test requiring the convicted defendant to prove that (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).

On appeal, defendant reiterates his contention that his former counsel's performance in 2006 was constitutionally ineffective because it was virtually certain that defendant's conviction would lead to mandatory deportation, and that his counsel failed to make that virtual certainty clear to him. He further argues that the trial court erred in finding no actual prejudice. He also asserts that the trial judge should have developed the record concerning the 2003 plea by conducting an evidentiary hearing.

Having fully considered defendant's arguments, we affirm the trial court's dismissal of his PCR petition, substantially for the reasons detailed in Judge Camille Kenny's thoughtful written opinion dated April 24, 2009.

In particular, we defer to Judge Kenny's assessment that the testimony of defendant's 2006 attorney, which has reasonable support in the record, was credible. See State v. Locurto, 157 N.J. 463, 471-72 (1999). Given that credibility finding, there is no basis to conclude that defendant suffered any actual prejudice because of the mistaken response on the plea form. Judge Kenny reasonably found that defendant understood the gravity of his decision to plead guilty, and was alerted that adverse immigration consequences were apt to ensue. This is not an instance of constitutional deprivation stemming from poor advice, or the lack of advice, by trial counsel concerning deportation consequences. Cf. Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010); State v. Nunez-Valdez, 200 N.J. 129 (2009).

Although neither Padilla nor Nunez-Valdez had yet been decided when Judge Kenny entertained defendant's PCR application, the judge's findings respecting the advice given by trial counsel amply meet the requirements of those cases, even assuming, for the sake of argument, that they apply retroactively to cases that were pending on PCR when those Supreme Court opinions on deportation consequences were issued. See State v. Gaitan, ___ N.J. Super. ____, ____ (App. Div. 2011).

We also agree with Judge Kenny that the issues arising out of the 2003 plea are manifestly without substantive merit, and that no evidentiary hearing as to that plea is required. See State v. Preciose, 129 N.J. 451, 462-63 (1992). Moreover, defendant's PCR petition was time-barred to the extent it challenged the 2003 conviction, as the petition was filed more than five years after he was sentenced on June 6, 2003. See R. 3:22-12.

Affirmed.