STATE OF NEW JERSEY v. IGNACIO GRANA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1101-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IGNACIO GRANA,

Defendant-Appellant.

_______________________________

March 4, 2013

 

Submitted January 16, 2013 - Decided

Before Judges Ashrafi and Lisa.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-05-0808.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Megan B. Kilzy, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the December 31, 2009 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. On October 18, 2007, pursuant to a plea agreement, defendant pled guilty to second-degree robbery, N.J.S.A. 2C:15-1. Although the plea agreement provided that the State would request a mid-range sentence of seven years imprisonment with and eighty-five percent parole disqualifier and three years parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, the judge sentenced defendant on November 30, 2007 to a bottom-of-the-range five- year NERA sentence. Defendant did not appeal.

On May 18, 2009, he filed a pro se PCR petition, which did not specify the grounds for relief. Counsel was assigned and filed an amended verified petition and accompanying brief, asserting that defendant's plea counsel either did not discuss with defendant the immigration consequences of his plea or rendered incorrect advice, by stating only that there might be a possibility of deportation, rather than a certainty of deportation as provided by federal law.

The matter came before Judge Melvin Kracov on November 30, 2009. Judge Kracov had previously taken defendant's plea and sentenced him. At the conclusion of oral argument, the judge announced his decision, namely that defendant's petition would be denied and no evidentiary hearing would be held. The judge stated that he would place his detailed findings on the record on a subsequent date, which he did on December 31, 2009. The judge concluded that plea counsel was not deficient in any way, no material issues of fact were in dispute requiring a hearing, and the record of the plea and sentencing conclusively established that defendant was well aware of the immigration consequences and that defendant's plea counsel made no misrepresentations to him in that regard. Accordingly, the judge concluded that defendant was not deprived of the effective assistance of counsel and entered an order on that date denying defendant's PCR petition.

On appeal, defendant argues:

POINT I

DEFENDANT'S POST CONVICTION RELIEF COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

 

POINT II

DEFENDANT IS ENTITLED TO POST-CONVICTION RELIEF UNDER STATE V. GAITAN AND UNITED STATES V. OROCIO.

 

We reject these arguments and affirm.

Defendant was indicted for first-degree armed robbery, N.J.S.A. 2C:15-1, and third-degree resisting arrest, N.J.S.A. 2C:29-2a. A plea bargain was struck, by which the State agreed to downgrade the robbery count from first degree to second degree and recommend a seven-year sentence with an eighty-five percent parole disqualifier and three years parole supervision pursuant to NERA. The plea agreement provided for dismissal of the resisting arrest count.

On the standard plea form, defendant answered in the affirmative to Question No. 17, which asks: "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 defendant was sworn, Judge Kracov addressed him directly, inquiring in general about the plea agreement and defendant's representation by counsel, and specifically about Question No. 17. Defendant told the judge that he signed the plea agreement after going over it with his attorney and an interpreter, and that he understood it before signing it. With respect to Question No. 17, the judge engaged in this colloquy with defendant:

THE COURT: Are you a citizen of the United States?

 

THE DEFENDANT: No.

 

THE COURT: You should understand that this plea may affect what the Immigration, the Federal Immigration people do. It could affect your immigration status; do you understand that?

 

THE DEFENDANT: Yes, I understand.

 

THE COURT: That's not up to me, that's up to them.

 

THE DEFENDANT: Yes, that's fine.

 

The judge later engaged in this further colloquy:

THE COURT: Your - - your attorney, has she answered all of the questions you needed her to answer for you?

 

THE DEFENDANT: Yes sir.

 

THE COURT: Are you satisfied with the work she has done for you?

 

THE DEFENDANT: Yes.

 

THE COURT: Do you have any questions you would like me to answer before we go on?

 

THE DEFENDANT: No, none.

 

THE COURT: Have you - - do you want to speak to your attorney privately before we go on?

 

THE DEFENDANT: No, everything's been said.

 

THE COURT: Have you - - have you understood everything I have said and what the other two attorneys have said?

 

THE DEFENDANT: Yes, I understand.

 

THE COURT: Everything is clear to you?

 

THE DEFENDANT: Yes.

 

THE COURT: Now, has anyone told you to tell me something that is not true?

 

THE DEFENDANT: No, nobody.

 

THE COURT: Have you told me the truth in all your answers this afternoon?

 

THE DEFENDANT: Yes, the truth.

 

The matter next came before the court about six weeks later, on November 30, 2007, for sentencing. Defendant's attorney argued for a sentence of less than seven years by urging the court to find the applicability of various mitigating factors. Counsel concluded with the following:

[Defense counsel]: Okay. Judge I would just add that I think with regards to excessive hardship, this family has - - and I've spoken to his wife before, and I know that they have been suffering since he's been incarcerated primarily because of the children and him not being present.

 

They are going to continue to suffer, obviously, for a number of years. I would just ask that Your Honor consider the sooner that Mr. Grana is able to get out of jail the better.

 

And also he is already facing deportation. He has a detainer from Immigration. And I'm sure that the family is going to be affected long term from this incident as well.

 

[Emphasis added.]

 

Recognizing that the deportation process had already begun, and acknowledging that circumstance as a basis for imposing a sentence below the recommendation in the plea agreement, the judge said:

I think under these circumstances, the fact that he also has an ICE detainer on him, which probably means he's going to be leaving the country, is another significant factor [for a reduced sentence].

 

[Emphasis added.]

 

At the sentencing proceeding, defendant did not seek to withdraw his plea, although by that time he was in fact the subject of an actual deportation proceeding by the federal immigration authorities. Nor did defendant assert his innocence or the existence of any plausible defense.

As we stated, defendant did not set forth in his initial pro se PCR petition any grounds for the requested relief. In the amended petition and brief filed by his attorney, he stated, alternatively, that his plea counsel had no conversation with him about immigration consequences and gave no advice on the subject, and that he was misadvised that there was only a mere possibility of deportation, not a certainty of deportation. At the PCR hearing, Judge Kracov attempted to ascertain from PCR counsel which of the two theories he was advancing, because, factually, both could not be true.

PCR counsel attempted to argue both positions. At one point, for example, counsel said that although defendant answered affirmatively to Question No. 17, "he really did not know what was going on at the time and that's why an evidentiary hearing should be warranted." When the judge then asked how counsel or defendant could explain away what the judge had told defendant directly on the record at the time of his plea about his immigration consequences, counsel said defendant "was a bit nervous" and "really wasn't aware of the immigration consequences" notwithstanding his colloquy with the court to the contrary. When Judge Kracov asked counsel to explain his position regarding the colloquy at sentencing discussing the actual deportation proceeding that was then in effect, counsel said, "hearing is one thing. Understanding is quite another." When the judge asked counsel to be specific about the misinformation that was allegedly given, he responded that defendant did not know that his guilty plea would result in his deportation. The judge then asked counsel whether it was his contention that defendant "never discussed it with his lawyer," to which counsel responded, "[t]hat's what we are arguing before the [c]ourt."

The judge then pointed out the inherent inconsistency between the amended PCR petition, which asserted that defense counsel misinformed defendant that his plea would have no immigration consequences, and the assertion that he had no conversation about immigration consequences with his plea counsel. Counsel was only able to respond that, as PCR counsel, he was required "to raise any argument that the defendant asked him to raise," which included the argument that defendant "was misinformed regarding the plea consequences." Counsel further explained that "pursuant to State v. [Rue, 175 N.J. 1 (2002)] and State v. We[b]ster, [ 187 N.J. 254 (2006)], whatever my client asks me to bring before the [c]ourt, whether - - I am not saying my client's argument is frivolous, I would have to raise it in my certification." Finally, when asked to explain the discrepancy and the source of information, counsel referred to pro se letters that his client had sent to him after his communication with his client. Counsel further said that he submitted the amended petition to defendant for his approval before filing it with the court. Counsel then concluded:

Judge, if the counsel says there is no immigration consequences and on Question 17 you are marking yes, you could be deported, there is a direct contradiction right then and there, so essentially it is as if they didn't have any discussion about the conviction because she misinformed him.

 

When the judge asked for a proffer of defendant's anticipated testimony if an evidentiary hearing were granted, counsel said defendant would testify "that there was no conversation regarding any immigration consequences with his defense counsel." When asked what defendant would say about signing the plea form, counsel argued that defendant's plea counsel "didn't go through it thoroughly enough for my client to understand."

In his oral opinion of December 31, 2009, Judge Kracov outlined the inherent inconsistency between the two factual assertions advanced by defendant. Then, recounting the record of the plea and sentencing proceedings, the judge stated that "the record conclusively establishes the defendant was made aware that he was subject to deportation and that he's pleading guilty to avail himself of a favorable plea bargain."

With respect to the sentencing proceeding, the judge noted that the presentence report contained two separate references to the outstanding ICE detainer and that defendant acknowledged he had reviewed the presentence report and its contents were accurate.

The judge also reiterated that a significant inducement to the reduced sentence he imposed, undercutting the recommendation of the plea agreement, was the existence of a pending deportation proceeding. The judge concluded that the record rendered "ludicrous" defendant's contention that his plea counsel did not discuss the immigration consequences of the plea with him. The judge was further satisfied that, based upon the entirety of the record, "there was no affirmative misrepresentation made to [defendant] by his attorney."

Defendant contends that his PCR counsel violated Rule 3:22-6(d) by failing to "advance all of the legitimate arguments requested by the defendant that the record will support." As a remedy, he seeks a remand for a new PCR hearing with new PCR counsel. See Rue, supra, 175 N.J. at 19. We do not agree. Under either the lack-of-advice theory, see Padilla v. Kentucky, 599 U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), or the misadvice theory, see State v. Nunez-Valdez, 200 N.J. 129 (2009), the record in the prior proceedings forecloses defendant's factual contentions.

There can be no dispute that defendant and his plea counsel discussed immigration consequences. Indeed, the court addressed defendant directly and discussed those consequences both at the time of plea and sentencing. Defendant acknowledged under oath the truthfulness of his answer to Question No. 17 and to his explicit understanding that he could be deported. By the time of sentencing, the deportation process had begun, and defendant knew it. Through counsel, he used that circumstance to obtain a reduced sentence. Yet, he did not seek to withdraw his plea or assert any plausible defense to the charges against him. In any event, the lack-of-advice theory is foreclosed because defendant's conviction became final in 2007, three years before Padilla was decided, and it is now conclusively established that Padilla does not have retroactive effect. Chaidez v. United States, ____ U.S. ____, ____ S.Ct. ____, ____ L.Ed.2d ____ (2013); State v. Gaitan, 209 N.J. 339, 372 (2012).

We further agree with Judge Kracov that the record does not support a prima facie showing of misadvice. The only misadvice asserted by defendant is that he was told there was only a mere possibility, instead of a certainty, that he would be deported. Accepting this assertion most favorably to defendant, see State v. Preciose, 129 N.J. 451, 462-63 (1992), we find it insufficient to establish a prima facie showing of ineffective assistance of counsel.

Our analysis in a recently decided case informs our analysis here on this issue. See State v. Brewster, ____ N.J. Super. ____ (App. Div. 2013). In that case, as in this case, "defense counsel . . . did not assure [the] defendant that he would not be deported. Rather, he allegedly stated he did not think deportation would be an issue. . . ." Id. at ____ (slip op. at 10). We rejected the defendant's contention in Brewster that Question No. 17 constituted a misstatement of federal law because it did not inform the defendant that he was subject to mandatory deportation. Id. at ____ (slip op. at 11). We reasoned that our Supreme Court's directive to modify Question No. 17 to be more explicit "is not equivalent to finding that the plea form was constitutionally deficient." Id. at ____ (slip op. at 12). "The Court did not hold that advising a client he may be deported was incorrect or deficient legal advice." Ibid. (citing Nunez-Valdez, supra, 200 N.J. at 138, 143).

Evidentiary hearings in PCR proceedings are discretionary. Preciose, supra, 129 N.J. at 462. If a PCR court determines that an evidentiary hearing will not aid in its analysis of defendant's claim of entitlement to post-conviction relief, or that the defendant's allegations are too vague, conclusiory, or speculative to warrant such a hearing, it need not be granted. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); R. 3:22-10(e). Judge Kracov did not mistakenly exercise his discretion in denying an evidentiary hearing here. On the totality of the record of defendant's plea and sentencing, defendant's conflicting, conclusive, and vague assertion that he was told only of the possibility of deportation (if, indeed, he was told anything at all), is not sufficient to warrant an evidentiary hearing. The thrust of defendant's argument in this appeal is that his PCR counsel was deficient for vacillating and flip-flopping in his arguments. PCR counsel had to work within the confines of the factual record with which he was confronted, while at the same time fulfilling his obligation to his client of presenting all arguments his client asked him to advance. Indeed, in defendant's appellate brief, he asserts that "it remains unclear which argument defendant will be pursuing" if he receives a new PCR hearing. Defendant apparently wants to keep both options open, notwithstanding their mutual exclusivity. This record does not provide a basis for the relief defendant requests under either theory.

Affirmed.