STATE OF NEW JERSEY v. LUCAS A. LUNA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUCAS A. LUNA,

Defendant-Appellant,

__________________________________

September 13, 2013

Submitted May 7, 2013 Decided

Before Judges Lihotz and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 87-10-0846.

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

Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Reema Sethi Kareer Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR). We affirm.

On October 20, 1987, defendant was indicted in Morris County for possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) and b(2), and conspiracy to possess cocaine with the intent to distribute, N.J.S.A. 2C:5-2.

On February 22, 1988, defendant pleaded guilty to the possession-with-intent-to-distribute charge. The State agreed to dismiss the balance of the indictment and to recommend a sentence of 364 days in the Morris County Jail and four years of probation. On the plea form, defendant indicated that he was satisfied with the advice received from his lawyers; he understood he would have a criminal record; and he understood that if he were "not a United States citizen or national, [he] may be deported by virtue of [his] plea of guilty." On May 20, 1988, the court entered the judgment of conviction and sentenced defendant in accordance with the plea agreement.1 Defendant filed no direct appeal.

In 1989, defendant violated probation, and when he did not appear at the scheduled hearing a warrant was issued for his arrest. He was arrested on new drug charges in November 1994. Thereafter, on March 10, 1995, he was sentenced to five years for violating probation.

In November 1994, defendant was indicted in Somerset County on new drug charges: conspiracy to possess cocaine with the intent to distribute, N.J.S.A. 2C:5-2, and possession of cocaine with the intent to distribute, N.J.S.A. 2C:35-5a(1) and b(1). A jury trial was held between February 26 and March 6, 1996, and defendant was convicted on both counts. On May 31, 1996, the court merged the conspiracy count into the possession count, and sentenced defendant to an extended term of fifty years, with sixteen years and eight months of parole ineligibility.

Thereafter, defendant, a citizen of the Dominican Republic, was ordered deported from the United States upon completion of his custodial sentence.

On September 14, 2009, defendant filed a pro se petition for post-conviction relief under Rule 3:22-1. He claimed he received ineffective assistance of counsel with respect to his 1988 Morris County guilty plea because: he was innocent of the charges; he was not advised of the immigration consequences of his plea (purportedly, when defendant asked about the potential immigration consequences, his attorney told him "don't worry about it"); and if he had been adequately advised he would not have pleaded guilty. On September 22, 2009, he was assigned counsel, who submitted a brief on his behalf.

At oral argument on June 28, 2010, his counsel contended that the petition had been filed late because defendant "was not aware of his right to file for a post-conviction relief," and defendant added to his claim of ineffective assistance of counsel by alleging that he was not advised that his conviction could be used as a predicate crime to impose an extended term sentence on any subsequent conviction.

The day of argument, the court issued an oral opinion and order denying the petition. The court found that the petition was time-barred under Rule 3:22-12(a)(1), and that defendant had failed to make a prima facie showing of ineffective assistance of counsel because he responded "yes" to the plea form question regarding immigration consequences, and because his status as an illegal alien made his deportation both "inevitable and required."

In the present appeal, defendant does not pursue his claim of innocence to the charges in 1988, as he did below, but contends:

POINT I: THE PCR COURT ERRED BY FINDING THAT DEFENDANT HAD NOT PRESENTED A SUFFICIENT REASON FOR FAILING TO COMPLY WITH THE 5 YEAR FILING REQUIREMENT ESTABLISHED BY R. 3:22-12.

POINT II: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE TRIAL COUNSEL'S FAILURE TO ADVISE DEFENDANT OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

POINT III: THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT IV: TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO INFORM DEFENDANT THAT HIS GUILTY PLEA TO COUNT TWO OF MORRIS COUNTY INDICTMENT NO. 87-10-0846 COULD BE USED AS A PREDICATE CRIME TO IMPOSE AN EXTENDED TERM SENTENCE ON A SUBSEQUENT CONVICTION.

We reject these arguments. Under Rule 3:22-12(a)(1), a first petition for PCR must be filed no more than five years after entry of the judgment of conviction "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." As the Supreme Court has explained:

There are good reasons for such a Rule. As time passes after conviction, the difficulties associated with a fair and accurate reassessment of the critical events multiply. Achieving "justice" years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable. . . . Moreover, the Rule serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation.

[State v. Mitchell, 126 N.J. 565, 575-76 (1992).]

Defendant filed his petition out of time, on September 14, 2009, more than nineteen years after entry of the May 20, 1988, judgment of conviction. Thus the petition is almost fifteen years out of time, making the problems described by the Court in Mitchell paramount. Indeed, the passage of time has even hampered evaluation of the PCR petition because the transcripts for the 1988 plea and sentencing proceedings no longer exist.

Defendant has shown no excusable neglect or exceptional circumstances warranting relaxation of the time bar. Below, defendant claimed excusable neglect because he was unaware of the time-frame for filing. However, "[i]gnorance of the law and rules of court does not qualify as excusable neglect." State v. Merola, 365 N.J. Super. 203, 218 (Law Div. 2002), aff'd, 365 N.J. Super. 82 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

We also do not find defendant would suffer a fundamental injustice if the five year ban were enforced, as defendant's substantive claim lacks merit.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must prove that counsel's performance was deficient in that it "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 690, 104 S. Ct. at 2064, 2066, 80 L. Ed. 2d at 693, 695. Second, he must prove a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Accord State v. Fritz, 105 N.J. 42, 58 (1987). "When a defendant has entered into a plea agreement, a deficiency is prejudicial if there is a reasonable probability that, but for counsel's errors, the defendant would . . . have decided to forego the plea agreement and would have gone to trial." State v. McDonald, 211 N.J. 4, 30 (2012). Accord State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009); State v. Maldon, 422 N.J. Super. 475, 482 (App. Div. 2011).

We agree with the lower court that defendant made no prima facie case of ineffective assistance of counsel. Therefore, the court properly denied the petition without holding an evidentiary hearing.

In Nu ez-Vald z, supra, 200 N.J. at 138, the Court held that "counsel renders ineffective assistance if he or she provides false or misleading information concerning the deportation consequences of a plea of guilty." In Padilla v. Kentucky, 559 U.S. 356, 360, 130 S. Ct. 1473, 1478, 176 L. Ed. 2d 284, 290 (2010), the United States Supreme Court held that attorneys are affirmatively obligated to advise their clients that the offense they are pleading guilty to will result in their removal from the country. The failure to do so renders their counsel deficient. Ibid. The Court did not limit its holding to affirmative mis-advice regarding the immigration consequences of a guilty plea, finding no difference between an act of commission and an act of omission. Id. at 370-71, 130 S. Ct. at 1484, 176 L. Ed. 2d at 296-97.

In State v. Gaitan, 209 N.J. 339, 375 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013), our Supreme Court concluded that the rule announced in Nu ez-Vald z was not a new rule of law. "[I]t was hardly revolutionary under New Jersey law that an attorney could not actually give wrong or inaccurate information about immigration consequences of a guilty plea without risking an assertion of having provided ineffective assistance." Id. at 352. By contrast, the United States Supreme Court ruling in Padilla represented "a new rule of law that, under federal law, is not retroactive and is therefore inapplicable to cases on collateral review." Id. at 367, 371-72. Further, the Padilla ruling was not entitled to retroactive application under state law. Id. at 372-73. The United States Supreme Court thereafter reached the same conclusion as our Supreme Court in Gaitan, holding that its ruling in Padilla did not apply retroactively. Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149, 162 (2013). "[D]efendants whose convictions became final prior to Padilla therefore cannot benefit from its holding." Ibid.

Here, defendant claims that, notwithstanding his answer of "yes" to question sixteen on his plea form, his counsel did not advise him of the immigration consequences of his plea. Rather, when he asked about the potential immigration consequences, his attorney told him "don't worry about it." These allegations are similar to the ones made by the defendant in Padilla, who claimed that his counsel failed to advise him of the immigration consequences of his plea, and also told him that he did not have to worry about the issue. Padilla, supra, 559 U.S. at 359, 130 S. Ct. at 1478, 176 L. Ed. 2d at 290. However, defendant's allegations are different than the alleged affirmative misrepresentation made to the defendant in Nu ez-Vald z, supra, 200 N.J. at 134 (trial court accepted as true the claim that counsel affirmatively mis-advised the defendant "that no immigration problems would result if defendant pled guilty").

We conclude that this case involves an alleged failure to provide advice on the immigration consequences of a plea, as opposed to an alleged provision of affirmatively incorrect advice on that subject. Therefore, the ruling in Nu ez-Vald z does not apply, and, consistent with the rulings in Chaidez and Gaitan, the ruling in Padilla cannot be retroactively applied to this petition for PCR. On the record presented, therefore, defendant has not made a prima facie showing of any error made by his trial counsel.

Additionally, even if he had shown error, under the circumstances of this case the error clearly was not prejudicial to defendant. Although defendant may not have pled guilty in 1988 had he known the immigration consequences of that decision, his subsequent conviction in 1996, after a jury trial, also renders him deportable. See 8 U.S.C.A. 1101a(43)(B) (defining "aggravated felony" to include illicit trafficking of a CDS); 8 U.S.C.A. 1227a(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."); 8 U.S.C.A. 1227a(2)(B)(i) ("Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation . . . relating to a controlled substance . . . other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.").

Finally, there is no merit to defendant's claim that his counsel was ineffective for failing to advise him that his conviction could be used as a predicate crime to impose an extended term sentence on any subsequent conviction. State v. Wilkerson, 321 N.J. Super. 219, 223 (App. Div.) ("we find no constitutional requirement that a defense attorney must advise a client or defendant that if he or she commits future criminal offenses that there may be adverse consequences by way of enhancement of the penalty"), certif. denied, 162 N.J. 128 (1999).

1 Transcriptions of the February 22, 1988, and May 20, 1988, court appearances (plea and sentencing, respectively) are no longer available because they were destroyed after twenty years, in accordance with the Judiciary's retention schedule.