STATE OF NEW JERSEY v. JAVIER REYES-BONILLA

NOT FOR PUBLICATION WITHOUT THE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.

JAVIER REYES-BONILLA,

Defendant-Appellant.

___________________________

July 30, 2013

Before Judges Reisner and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 07-05-1219 and 06-08-1879.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (Renee G. Kelleher, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Javier Reyes-Bonilla appeals from an order dated December 16, 2009, denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

In 2007, defendant pled guilty to third-degree burglary and weapons possession, and was sentenced to probation. On the plea form, "N/A" was circled in response to question 17, asking if defendant understood that if he was not a United States citizen "you may be deported by virtue of your plea of guilty." In October 2009, defendant filed a PCR petition, contending that his trial counsel misinformed him about the possible immigration consequences of his guilty plea. He alleged that his attorney told him that because he had a "green card" he would not be deported. In December 16, 2009, the PCR judge denied the petition without holding an evidentiary hearing. However, on April 13, 2011, we remanded the case for an evidentiary hearing "on the circumstances of defendant's response to Question 17 on the plea form."

Thereafter, on May 22, 2012, the PCR judge heard testimony from defendant and his former trial attorney, Eric Shenkus, Esq. Defendant testified that he did not tell his attorney that he had a green card, because the attorney did not ask him about his immigration status. He also stated that he did not read the plea form, although he admitted telling the judge at the plea hearing that he went over the form with his lawyer.

Shenkus testified that in 2007, when he represented defendant, it was his practice to inquire about his clients' immigration status. He asserted that he would not have told a client, whom he knew was a resident alien, that "there would be no immigration consequences following a criminal conviction." He also testified that he would only circle "N/A" in response to question 17 if the client told him that he was a United States citizen. Shenkus confirmed that he would not have a defendant's pre-sentence report in his file at the time of the plea. He testified that he would normally review a client's 5A form1 as part of his review of the file, but he would not rely on it. Instead, he would rely on the client's answers to the plea form when he interviewed the client in person.2 Contrary to defendant's testimony that Shenkus filled out the plea form before interviewing him and just told him to sign it, Shenkus testified that his practice was to fill out the form during the interview.

In an oral opinion placed on the record immediately after the hearing, the PCR judge found Shenkus to be a credible witness. He believed Shenkus's testimony that he reviewed the plea form with defendant and would not have checked "N/A" in response to question 17 unless defendant had told him he was a citizen.

The judge also found that defendant was not credible. He considered defendant's sworn statement at the plea hearing that he went over the plea form with his attorney, which was contrary to defendant's PCR testimony. The judge also considered defendant's sworn statement at sentencing that he went over the pre-sentence report and initialed the report. That report stated that defendant was a United States citizen.

In light of those findings, the judge found that Shenkus did not render ineffective assistance of counsel in failing to inform defendant that he could be deported as a result of his guilty plea, because defendant told Shenkus that he was a United States citizen.

On this appeal, we are bound by the trial judge's factual findings so long as they are supported by sufficient credible evidence, and we owe particular deference to his credibility findings. State v. Elders, 192 N.J. 224, 244 (2003). Having reviewed the record, we find no basis to disturb the judge's factual findings or his well-reasoned credibility determinations. Based on the facts as he found them to be, his legal conclusions are unassailable.

Defendant argues that he was "denied effective assistance of counsel because he was misinformed as to the deportation consequences of pleading guilty." On this record, that argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.

If defense counsel provides affirmatively misleading or false advice about the immigration consequences of a guilty plea, that mis-advice may constitute ineffective assistance of counsel. State v. Nunez-Valdez, 200 N.J. 129, 131 (2009). However, a defense attorney cannot be expected to provide advice about possible immigration problems if the client claims to be a United States citizen. In this case, Shenkus gave defendant legal advice that was correct based on what defendant told him. He did not render ineffective assistance of counsel. See State v. DiFrisco, 137 N.J. 434, 456-57 (1994); State v. Fritz, 105 N.J. 42, 50 (1987).

Affirmed.

1 A 5A form is used to determine eligibility for Public Defender representation.

2 For unexplained reasons, defendant's file apparently contained two 5A forms, one indicating that he had a green card and one indicating that he was a citizen. Shenkus had no recollection of having seen either form. Defendant's pre-sentence report indicated that he was a United States citizen.