STATE OF NEW JERSEY v. ADRIAN BENDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1077-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ADRIAN BENDER,

Defendant-Appellant.

__________________________________

June 24, 2013

Submitted April 10, 2013 Decided

Before Judges Simonelli and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment

Nos. 04-06-0876, 04-08-1152 and Accusation No. 03-11-1170.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief; Nancy Fayed, on the brief).

PER CURIAM

Defendant Adrian Bender appeals from the denial of his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel arising out of trial counsel's failure to advise him in 2003 and 2004 of the deportation consequences of his guilty pleas. Because we find this case squarely controlled by Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1107, 185 L. Ed. 2d 149, 155 (2013); accord State v. Gaitan, 209 N.J. 339, 373-74 (2012), cert. denied, ___ U.S.___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013), we affirm.

In December 2003, defendant waived indictment by the grand jury and pled guilty to third-degree eluding, N.J.S.A.2C:29-2b, charged in Accusation No. 03-11-1170 and was sentenced to probation for a period of two years. Defendant subsequently accepted a plea agreement resolving two indictments and a violation of probation on that accusation. Pursuant to that agreement, in October 2004, defendant pled guilty to one count of third-degree possession of heroin with intent to distribute, N.J.S.A.2C:35-5a(1) and -5b(3), charged in Indictment No. 04-06-0876; one count of second-degree eluding, N.J.S.A.2C:29-2b, and one count of third-degree possession of cocaine, N.J.S.A.2C:35-10a(1), both charged in Indictment No. 04-08-1152, and a violation of probation on Accusation No. 03-11-1170.

On December 10, 2004, the judge sentenced defendant to terms of imprisonment on each count all to be served concurrently with one another. The judge imposed a ten-year term for second-degree eluding; a four-year term for possession; a four-year term for possession with intent to distribute; and a four-year term for third-degree eluding, terminating defendant's probation.

Defendant did not file a direct appeal. In April 2010, immigration authorities commenced deportation proceedings and lodged a detainer against defendant. In July 2010, defendant filed a PCR petition alleging that his counsel failed to properly advise him that he would be deported "as a mandatory consequence of my guilty plea." Defendant claimed that the only legal advice he received regarding deportation "was that I might face a possibility of deportation or removal from the United States as a consequence of my guilty plea."

The court heard oral argument on the petition on April 8, 2011 before either Chaidez or Gaitan had been decided. Although deeming the petition time-barred, the court nevertheless considered defendant's claims on the merits. The court noted that the judge taking the first plea in October 2004 reviewed the plea form with defendant and asked him specifically, under oath, whether he was a United States citizen. Defendant responded, "Yes, Your Honor" and the court replied "All right. So, there's no issue then about you being deported by reason of you being convicted of a crime." Defendant had responded "N[ot]/A[pplicable]" to question seventeen of the plea form which asked: "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?"1

Notwithstanding his statement to the judge, defendant contended on PCR that because the presentence report noted that defendant was born in Guyana, trial counsel had a responsibility to verify defendant's citizenship status in light of the "near-certainty" of defendant's deportation should he be mistaken as to his citizenship.2 The court rejected that argument, finding instead that trial counsel was entitled to rely on defendant's sworn statement to the court that he was a United States citizen. The judge concluded that defendant "is in the situation he's in not because he had an ineffective lawyer [or] because the judge dropped the ball. He's in the situation he's in because he lied to the judge under oath about his citizenship status."

Defendant argues on appeal that we should apply the rule announced by the United States Supreme Court in Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) "that when the deportation consequence is truly clear

. . . the duty to give correct advice is equally clear." Id.

at ___, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296. After defendant filed his brief on appeal, however, the Court held in Chaidez that the rule established in Padilla has no retroactive application. Chaidez, supra, ___ U.S. at ___, 133 S. Ct. at 1107, 185 L. Ed. 2d at 155. Our Supreme Court had already come to that conclusion in Gaitan, supra, 209 N.J. at 373-74. Because defendant acknowledges pleading guilty in 2003 and 2004, Padillais now of no avail to him. Chaidezand Gaitanmandate that we affirm the denial of defendant's petition.

Affirmed.

1 Defendant had answered "yes" to question seventeen on the plea form he completed and signed in connection with his earlier plea to the charge of the Accusation. He was not asked on the record about his citizenship in that matter.

2 The presentence report stated that defendant was a United States citizen.