STATE OF NEW JERSEY v. FRANCISCO GELL-ESPINOZA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0213-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCISCO GELL-ESPINOZA,

Defendant-Appellant.

__________________________

October 10, 2012

Submitted October 2, 2012 - Decided

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 07-07-1098.

Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Francisco Gell-Espinoza appeals from a May 13, 2010 order denying his petition for post-conviction relief (PCR), in which he claimed ineffective assistance of counsel relating to advice about the immigration consequences of his guilty plea. We remand this matter to the trial court for further proceedings.

I

We first summarize the record presented to us on this appeal. On July 24, 2007, defendant was indicted for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), and second-degree CDS possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2). On the same day, he waived his right to a jury trial and entered into a written plea agreement, which was translated into Spanish. He agreed to plead guilty to the second-degree offense, "as amended to a [third-degree] offense," N.J.S.A. 2C:35-5b(3), for which he would receive non-custodial probation. He answered "yes" to question seventeen on the plea form: "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, on July 24, 2007, the judge asked defendant if he was a United States citizen, and defendant, testifying through a Spanish interpreter, answered that he was a "resident." The following colloquy then ensued:

THE COURT: Well, you understand that if you are applying for citizenship, this could [affect] it, and it could also [affect] your status here in the country, and you could be deported because of this. Do you understand that?

Have you had time to discuss that with your attorney?

DEFENDANT: Yes.

Responding to the judge's further questioning, defendant indicated that he read "a little bit" of Spanish but he had gone over the plea form with "the interpreter" and with his attorney. He then gave a factual basis in which he admitted that on April 5, 2007, he was riding in a car with "two other persons, Melvin Padilla Rivera and Aborio Francisco Rodriguez," and that "at that time" he possessed heroin with intent to distribute it.

On September 21, 2007, defendant was sentenced to probation. Before the judge imposed the sentence, defense counsel told the judge that defendant had lived a law-abiding life for a substantial period of time; he had four children; and he had lived with his girlfriend and one of the children in Pennsylvania for the past six years. Defendant stated, "I regret what I have done." When the judge questioned the leniency of the proposed sentence, the prosecutor responded that defendant "is not the heavy in this case. But he was involved in the activity of that particular individual, the one that facilitated the possession of a significant amount of heroin with the intent to distribute. . . . And we had to take that into consideration, as well as other circumstances . . . with the plea that we did."

The judge then stated to defendant, "if you get involved in this again, you'll never get this deal out of me again. Do you understand that?" Defendant responded, "Yes." The judge sentenced defendant to three years probation and transferred his probation supervision to Pennsylvania.

In April 2009, defendant, who was then incarcerated in Pennsylvania, filed a pro se PCR petition, alleging that after he served part of his probation, the Department of Homeland Security (ICE) had arrested him and commenced removal proceedings. He alleged that in counseling him to plead guilty, his attorney "was ineffective on the grounds that he mislead the Defendant into plea guilty and failed to advice the defendant about his Immigration consequence." In the next section, defendant asserted that his counsel was ineffective in "misadvising the noncitizen defendant about his immigration consequences of conviction." He also contended that his attorney misadvised him against filing a suppression motion. Defendant also asserted that he was innocent. In the accompanying brief, defendant cited cases concerning counsel's failure to advise a client of the immigration consequences of a guilty plea.

On February 2, 2010, defendant filed a pro se "supplemental brief," which he characterized as "my affidavit" and which he attested before a Pennsylvania notary.1 According to defendant, on April 2, 2007, he visited New Jersey with his friend Melvin Padilla and Francisco Rodriguez. On the drive back to Pennsylvania, a state trooper stopped their car and charged all three men with possession of drugs with intent to distribute, even though Melvin Padilla "admitted that the drugs was his" and told the trooper that defendant and Rodriguez "had nothing to do with the drugs." He further attested that when the police searched the car, they found drugs in a "portable seat" belonging to Rodriguez, but nonetheless they arrested all three men. According to defendant, the only evidence against him was a recording of a cell phone call that he made during the drive, telling someone that "we are arriving." He contended that he made the call at Padilla's request because Padilla, the driver, did not want to make a cell phone call while he was driving.

Defendant stated that his attorney told him that if he did not plead guilty and went to trial, he would "lose and face a lot of years in jail." Defendant and his girlfriend then asked the attorney "if there would be a problem with immigration by taking this deal." According to defendant, the lawyer

said and assured me do not worry about it you are a permanent resident alien and this is a misdemeanor not a felony[.] [A]lso he stated that I have been in the US a long time. I have trusted him as my lawyer and accepted the plea deal but I did not know he lied to me.

Defendant asserted that his girlfriend could corroborate his statement. Defendant also stated that as a result of his long stay in ICE detention, he had lost his business and had lost contact with his children. Finally, defendant attested: "If I would have known the trouble I was going to have with immigration, I would never have pleaded guilty."

The PCR petition was heard by a different judge than the one who took the plea and imposed sentence. On May 10, 2010, the PCR judge denied the petition, relying on defendant having signed the plea form indicating that he knew he "may" be deported. The judge expressed skepticism that a New Jersey attorney would use the terms "misdemeanor" and "felony," words that appeared in defendant's affidavit. The judge also stated:

I believe that there's nothing before me that would warrant a hearing in this case. I believe that either the defendant lied entirely when he spoke to the Judge -- when he answered yes and he had the benefit of -- a Spanish interpreter or he's lying now . . . . I don't believe a hearing is required because . . . there has been nothing before me that would show a deficiency in counsel's conduct of this matter.

II

In considering defendant's appeal, it is helpful to review the current relevant law on ineffective assistance of counsel, some of which post-dates the PCR court's decision in this case. To establish a right to post-conviction relief in the context of a plea agreement, a defendant must demonstrate that his or her counsel rendered ineffective assistance, and "'there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial.'" State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).

In State v. Gaitan, supra, 209 N.J. at 374-75, our Supreme Court reaffirmed the holding in Nu ez-Vald z, that an attorney who affirmatively misinforms a client about the immigration consequences of a guilty plea renders ineffective assistance. However, in Gaitan, the Court also addressed the retroactivity of the rule announced by the United States Supreme Court in Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473 (2010). Gaitan, supra, 209 N.J. at 372. Padilla held that an attorney's failure to advise a non-citizen client of the immigration risks attendant on pleading guilty (as opposed to affirmatively giving incorrect advice) was also ineffective assistance of counsel. Padilla, supra, 130 S. Ct. at 1486. In Gaitan, our Court held that "Padilla's new constitutional pronouncement is not entitled to retroactive application on collateral review" under federal or state law. Gaitan, supra, 209 N.J. at 372. Thus, under Gaitan, defendant is precluded from raising on his PCR petition a claim that his trial counsel failed to provide him with immigration advice. However, the Court preserved a defendant's right, on a PCR petition, to raise a claim that the attorney rendered affirmative mis-advice:

That said, although Padilla will not apply retroactively, Nu ez-Vald z still governs the standard of attorney performance in New Jersey in ineffective assistance of counsel claims on collateral review. Thus, if either of the PCR applicants in the present appeals presents a claim showing that he was provided with false and affirmatively misleading advice when entering his plea, then the standard of performance expected of counsel may have been breached.

[Id. at 373-74.]

The Court held that Gaitan was not entitled to pursue PCR relief because he was informed that he might face deportation, and he produced "no evidence or claim that, at the time, [he] sought more information about immigration consequences and was then misinformed by counsel." Id. at 375. Considering the companion case, which involved a defendant named Goulbourne, the Court examined the transcript of the plea colloquy and discerned that not only was Goulbourne told multiple times that he very well might be deported, but his primary expressed concern was not with his immigration status but with "how long a time he would serve in jail." Id. at 379. It was therefore clear from the record that he could not satisfy the second Strickland prong demonstrating that he would not have pled guilty had he received correct immigration advice. Ibid.

The Gaitan Court noted that in future PCR petitions based on alleged improper or inadequate immigration advice, trial courts should carefully review the plea record before deciding whether to hold an evidentiary hearing:

[I]f counsel provided false information, or inaccurate and affirmatively misleading advice about removal consequences of a guilty plea, then deficiency may exist for purposes of establishing, at present, a prima facie ineffective assistance of counsel claim entitling defendant to an evidentiary hearing in a PCR proceeding. In determining eligibility for an evidentiary hearing in such circumstances, like others where a court may be confronted with competing affidavits between a client and counsel, we trust that courts will evaluate the sufficiency of a belated claim of misadvice before granting a hearing. In so doing, the court should examine the transcripts of the plea colloquy and sentencing hearing, as we have done in the present matters, to determine if either transcript provides support for an after-the-fact assertion that counsel failed to provide advice affirmatively sought by a client as to the immigration consequences of entering into a specific guilty plea, sufficient to justify an evidentiary hearing on the PCR claim.

[Id. at 381.]

The Court reasserted this requirement in State v. Santos, 210 N.J. 129 (2012).

Finally, the United States Supreme Court recently granted certiorari in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011), cert. granted, No. 11-820 (U.S. Apr. 30, 2012), in order to address the Padilla retroactivity issue.

In applying the current law to the record before us, we conclude that this matter must be remanded to the trial court for an evidentiary hearing. The record contains defendant's affidavit explaining that, regardless of the wording on the plea form, his attorney assured him that he did not need to worry about being deported because he was a long-time legal resident and he was not pleading to a "felony." If defendant's allegations are true, his attorney gave him affirmative mis-advice, and under Nunez-Valdez and Gaitan, that claim is still cognizable on a PCR petition. Gaitan, supra, 209 N.J. at 374-75; Nunez-Valdez, supra, 200 N.J. at 139-40. Moreover, defendant has put forth what, on this record, appears to be a colorable claim of innocence, and has attested that if he had known he would face deportation he would not have pled guilty. See DiFrisco, supra, 137 N.J. at 456-57; State v. Slater, 198 N.J. 145, 157-58 (2009).2

The record presented to us does not contain any contrary evidence from the State, such as an affidavit from defendant's former attorney contradicting defendant's contentions, or any evidence demonstrating the strength of the State's case against defendant at the time he entered into the plea agreement. All we have is a somewhat ambiguous statement from the prosecutor explaining why it seemed advisable to offer defendant a very favorable plea deal. In short, we cannot tell from this record whether it would have been rational for defendant to refuse to plead guilty and insist on going to trial. See Padilla, supra, 130 S. Ct. at 1485. Therefore, although we acknowledge that this is a somewhat close case, we conclude that the PCR court mistakenly exercised its discretion in failing to hold an evidentiary hearing on defendant's claim that his attorney affirmatively provided incorrect immigration advice.

We have considered defendant's additional arguments concerning his attorney's failure to request a suppression hearing and his advice concerning the potential sentence defendant would face if convicted. We affirm the denial of an evidentiary hearing with respect to those claims. Defendant's arguments on those points do not warrant further discussion in a written opinion. R. 2:11-3(e)(2). We remand to the trial court for an evidentiary hearing limited to the immigration issue.

Affirmed in part, reversed and remanded in part.

1 We note that State v. Gaitan, 209 N.J. 339 (2012), was decided on February 28, 2012, and therefore defendant's February 2, 2012 affidavit could not have been intentionally tailored to bring his case within the narrowed PCR path the Court set in that case.

2 We do not share the PCR judge's concern about the terminology defendant used, because defendant is not fluent in English; we have no way of knowing whether his attorney used the terms "felony" and "misdemeanor" or whether that was how the terms were translated from English into Spanish.