STATE OF NEW JERSEY v. LEONICIO VARGAS

N

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1820-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEONICIO VARGAS,

Defendant-Appellant.

March 15, 2013

Submitted November 7, 2012 - Decided

Before Judges Fisher and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 93-10-3488.

Joseph E. Krakora, Public Defender, attorney (Abby P. Schwartz, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney (Lucille M. Rosano, Special Deputy Attorney General/Assistant Essex County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Leonicio Vargas appeals from the May 17, 2011 Law Division decision denying him post-conviction relief (PCR). On October 1, 1994, defendant entered a guilty plea to fourth-degree sexual contact, N.J.S.A. 2C:14-3(b), and, pursuant to the negotiated plea agreement, on December 5, 1994, was sentenced to two years of probation. For the reasons stated in the cogent decision by the Honorable Patricia K. Costello, we affirm denial of the PCR petition with the following brief comments.

Judge Costello pointed out that when defendant's plea was entered, deportation was not a mandatory consequence of conviction. It was not until the 1996 adoption of the Illegal Immigration Reform and Immigration Responsibility Act that deportation for such an offense was required. See 8 U.S.C.A. 1101(a)(43).

In 2000, defendant was taken into custody for a narcotics charge ultimately downgraded and addressed in the Newark Municipal Court. As a result of coming to the attention of the federal authorities, however, it was discovered that he was subject to mandatory deportation. He is currently awaiting deportation to the Dominican Republic. This PCR application followed.

Defendant states as a point of error for review on appeal:

PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY MISINFORMED HIM REGARDING THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA, THUS VIOLATING HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.)

A. Petitioner Was Denied The Effective Assistance Of Counsel

B. The Five Year Time Bar Should Be Relaxed Due To Petitioner's Excusable Neglect And/Or The Interests Of Justice

In her decision, Judge Costello observed that in order to succeed, "petitioner's argument would require that his trial counsel somehow be aware that a few years after his plea, legislation would be enacted and applied retroactively." When defendant entered his guilty plea, the plea form advised that deportation was a possibility. At the time, that was the law and the notice he received was therefore sufficient. No one involved in the process, including counsel or the trial judge for that matter, could have, as Judge Costello stated, "prophesize[d] the change in law." As she also said, that "failure to be prescient does not arise to the level of ineffective assistance of counsel." We agree.

Furthermore, since the submission of the briefs in this matter, State v. Gaitan, 209 N.J. 339 (2012), has definitively put the issue to rest. Because Padilla does not apply retroactively on collateral review, Chaidez v. United States, 81 U.S.L.W. 4112, 4116 (U.S. Feb. 20, 2013); Gaitan, supra, 209 N.J. at 367, 372, all counsel was required to do at the time this plea was entered was avoid affirmatively misinforming a defendant about the immigration consequences of the entry of a guilty plea, State v. Nu ez-Vald z, 200 N.J. 129, 140-42 (2009); c.f. Padilla v. Kentucky, 559 U.S. 356, ___, 130 S. Ct. 1473, 1484, 176 L. Ed. 2d 284, 297 (2010) ("It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so 'clearly satisfies the first prong of the Strickland analysis.'" (quoting Hill v. Lockhart, 474 U.S. 52, 62, 106 S. Ct. 366, 372, 88 L. Ed. 2d 203, 213 (1985) (White, J., concurring))). It was only because the law subsequently changed that defendant's status was jeopardized because of the entry of the guilty plea some nineteen years ago.

In order to establish ineffective assistance of counsel, a PCR petitioner must demonstrate that his counsel's performance was so deficient that he was not functioning at the level guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). A defendant must also establish that he was prejudiced to the extent that there was a reasonable probability that but for his attorney's unprofessional errors, the result would have been different. Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Fritz, 105 N.J. 42, 58 (1987). In this instance, counsel's performance was not deficient, and the outcome was not prejudiced by counsel's representation. Accordingly, without even reaching the timeliness question, an alternative ground for denying defendant's relief, we conclude he did not establish a basis for relief.

Affirmed.