STATE OF NEW JERSEY v. TOMAS MERCADO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6354-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TOMAS MERCADO,

Defendant-Appellant.

___________________________________

Argued May 20, 2013 Decided August 9, 2013

Before Judges Ashrafi and Espinosa.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Indictment No.

96-10-1977.

John E. Jenkins argued the cause for appellant (The Law Office of Todd D. Palumbo, attorney; Mr. Jenkins, on the brief).

Brian Schreyer, Special Deputy Attorney General/Acting Assistant Prosecutor, argued

the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Mr. Schreyer, on the brief).

PER CURIAM

Defendant Tomas Mercado was arrested in 1996 for selling cocaine. By cooperating with narcotics investigators, he avoided the full consequences of a twelve-count indictment and a certain prison sentence. In 1998, he pleaded guilty to one third-degree charge of selling cocaine in a school zone in exchange for a non-custodial sentence.

Thirteen years later, defendant sought to vacate his guilty plea and conviction because he learned he could be deported. In December 2011, he filed a petition for post-conviction relief (PCR), claiming that his attorney had wrongly advised him he would not be deported as a result of his conviction. The trial court heard argument and denied the PCR petition. He now appeals that decision. We affirm.

Defendant was born in the Dominican Republic and immigrated legally to the United States in 1992. In 1996, at the age of thirty-four, he was living in Hudson County with his wife and three children, he was employed, and he was making street sales of cocaine for profit in Jersey City and Hoboken.

The Hudson County Prosecutor's Office, Narcotics Task Force, conducted an investigation of defendant's drug dealing activities in March 1996. During that month, investigators conducted surveillance and gathered evidence on four dates on which defendant sold or attempted to sell cocaine, the first time to a confidential informant and the next three times to an undercover narcotics officer. Defendant told the undercover officer he could supply any quantity of cocaine the officer wished to purchase at any time.

On March 21, 1996, the undercover officer requested five ounces of cocaine from defendant. He agreed to supply it, instructing the officer to meet him near his place of employment in Hoboken. When the officer arrived, defendant walked to a car parked several blocks away and returned with a bag concealed in his clothing. After he showed the cocaine to the undercover officer, other officers positioned nearby stepped in and arrested defendant. They recovered 136 grams, or almost five ounces, of cocaine in the bag. The officers then executed a search warrant at defendant's apartment in Jersey City, where they recovered five more grams of cocaine, narcotics distribution paraphernalia, and about $1,400 in cash. In October 1996, a Hudson County grand jury indicted defendant on twelve counts charging drug offenses.1

To improve his prospects for a favorable outcome, defendant began cooperating with the Narcotics Task Force in the investigation of other criminal activity. For about one-and-a-half years, he provided confidential cooperation in four investigations, leading to the arrest of ten persons. As a result of defendant's cooperation, the prosecutor's office offered him a plea agreement that would deviate from internal prosecutor's guidelines in such narcotics cases where conviction entails mandatory minimum prison sentences. See N.J.S.A. 2C:35-7, -12. The prosecutor's office agreed to recommend a non-custodial sentence of probation in exchange for defendant's guilty plea to one count of the indictment charging third-degree distribution of cocaine in a school zone.

On June 29, 1998, defendant appeared with counsel before a judge, formally accepted the plea offer, and pleaded guilty to the one third-degree charge. He admitted he sold cocaine to an undercover officer. The judge did not question defendant about the possibility that he might be deported. The risk of deportation, however, was addressed in a written plea form signed by defendant as part of the record of his guilty plea. Question 17 on the plea form 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?" Defendant answered "yes." In open court, defendant acknowledged that he had discussed the questions and answers on the plea form with his attorney, that the answers were accurate, and that he had no questions to ask the judge or his attorney about the contents of the plea form. On October 9, 1998, the judge sentenced defendant to five years of probation. He served the probationary sentence.

In December 2011, defendant filed a PCR petition to vacate his guilty plea and conviction. No deportation proceedings had been instituted against defendant in the thirteen intervening years, but he stated he had recently learned when seeking to become a United States citizen that his 1998 conviction would be a bar and that he was subject to mandatory deportation because of that conviction. Defendant alleged that his plea counsel in 1998 had advised him and his wife that he would not be deported if he pleaded guilty to the third-degree charge because he had cooperated with law enforcement authorities. Defendant asserted he would not have pleaded guilty but would have stood trial on the indictment if he had known that his conviction subjected him to mandatory deportation.

The PCR judge reviewed the written submissions and heard the arguments of counsel. She placed an oral decision on the record on July 13, 2012, denying defendant's petition.

On appeal, defendant makes the following arguments:

POINT I

THE PCR COURT'S "ASSUMPTION" THAT COUNSEL'S PERFORMANCE WAS DEFECTIVE WAS CONSTITU-TIONALLY REQUIRED.

POINT II

APPLYING THE TEST OF THE PCR COURT REQUIRING POTENTIAL RETURN TO TRIAL MR. MERCADO SUFFERED CONSTITUTIONALLY COGNIZABLE PREJUDICE.

POINT III

IN LAFLER AND FRYE, THE SUPREME COURT HAS PROVIDED A SIMPLER TEST FOR CASES LIKE MR. MERCADO'S IN WHICH PREJUDICE IS EVIDENT BUT NOT SOLVABLE THROUGH TRIAL.

POINT IV

UNDER LAFLER AND FRYE THE APPROPRIATE REMEDY IS REFORMATION OF THE PLEA RATHER THAN TRIAL.

Initially, we reject as without any merit, and not warranting extensive discussion in a written opinion, R. 2:11-3(e)(2), the contentions made in Points III and IV. Defendant is not entitled to reformation of his plea agreement and dismissal of the criminal charges even if he can prove ineffective assistance of counsel. We comment only as follows on those points.

In Lafler v. Cooper, 566 U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), defense counsel gave faulty advice about the consequences of the defendant standing trial rather than accepting a plea offer, and in Missouri v. Frye, 566 U.S. ___, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012), defense counsel failed to communicate a favorable plea offer to the defendant. In both cases, the defendant was convicted of more serious charges and was sentenced to a substantially longer prison sentence than was available in a plea offer. In this case, there is nothing to show that a more favorable plea offer would or could have been made to defendant than the one he accepted. The only better result than a non-custodial sentence would have been dismissal of all charges. Nothing in the record suggests that the prosecutor's office would have agreed to dismiss the charges against a cocaine distributor in its jurisdiction who had sold cocaine three times to an undercover officer, and who was arrested red-handed with almost five ounces of cocaine in his possession. The most that defendant may have a right to demand by this PCR petition is an evidentiary hearing to determine whether his guilty plea should be vacated and he should have the opportunity to stand trial on the original twelve-count indictment.

The general standards by which a defendant must prove ineffective assistance of counsel to win a new trial are familiar, and we will not repeat them here. See Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007); State v. Fritz, 105 N.J. 42, 52 (1987). If a claim of ineffective assistance follows a guilty plea, the defendant must prove counsel's constitutionally deficient representation and also "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); accord State v. DiFrisco, 137 N.J. 434, 457 (1994).

Defendant concedes that Padilla v. Kentucky, 559 U.S. 356, ___, ___, 130 S. Ct. 1473, 1483, 1486, 176 L. Ed. 2d 284, 296, 299 (2010) holding that defense counsel's failure to give any advice about deportation might be deficient performance is not retroactively applicable to his plea and conviction. See Chaidez v. United States, ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013); State v. Gaitan, 209 N.J. 339 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). In State v. Nunez-Valdez, 200 N.J. 129, 143 (2009), however, our State Supreme Court held that a defendant can show ineffective assistance of counsel by proving his guilty plea resulted from "inaccurate information from counsel concerning the deportation consequences of his plea," and in Gaitan, supra, 209 N.J. at 375, the Court held that Nunez-Valdez is applicable retroactively. Only if defendant's attorney affirmatively gave incorrect advice about the deportation consequences of his guilty plea might he be entitled to set aside his conviction.

Without an evidentiary hearing to test the truth and accuracy of defendant's contentions, we must view the facts most favorably to defendant as stated in his PCR petition. State v. Preciose, 129 N.J. 451, 462-63 (1992). We must assume the truth of defendant's allegation that his attorney advised him he would not be deported. Up to this point in time, that advice has not been shown to be incorrect. Nevertheless, we will assume for purposes of the issues on appeal that defendant is subject to mandatory deportation because of his 1998 narcotics conviction and may yet be deported.

Defendants' petition was filed more than thirteen years after his conviction. Rule 3:22-12(a)(1) sets a five-year time limitation for the filing of a PCR petition, unless the petition itself shows excusable neglect for the late filing and also fundamental injustice if defendant's claims are not considered on their merits. We do not agree with defendant that the five-year limitation period does not apply in the circumstances of this case.

Defendant cites State v. Maldon, 422 N.J. Super. 475, 482 (App. Div. 2011), and State v. Bringhurst, 401 N.J. Super. 421, 432-33 (App. Div. 2008), to support his argument that he had no reason to seek PCR relief until he recently learned of the alleged faulty advice of his plea attorney. In State v. Brewster, 429 N.J. Super. 387 (App. Div. 2013), however, we stated:

Defendant cannot assert excusable neglect simply because he received inaccurate deportation advice from his defense counsel. . . . If excusable neglect for late filing of a petition is equated with incorrect or incomplete advice, long-convicted defendants might routinely claim they did not learn about the deficiencies in counsel's advice on a variety of topics until after the five-year limitation period had run.

[Id. at 400 (citing State v. Goodwin, 173 N.J. 583, 595 (2002)).]

Defendant was informed by means of question 17 on the plea form that his conviction might result in his deportation. Even if his plea attorney gave him incorrect advice, he was put on notice by the court that deportation might be a consequence of his guilty plea. He had five years from the time of his conviction to discover any fault in his attorney's advice. He did not do so until thirteen years later.

The New Jersey Supreme Court has required a showing of "compelling, extenuating circumstances" or, alternatively, "exceptional circumstances," to relax the five-year time limitation for a PCR petition. See State v. Milne, 178 N.J. 486, 492 (2004); Goodwin, supra, 173 N.J. at 594; State v. Murray, 162 N.J. 240, 246 (2000); State v. Mitchell, 126 N.J. 565, 580 (1992). Where the deficient representation of counsel affected "a determination of guilt or otherwise wrought a miscarriage of justice," a procedural rule otherwise barring post-conviction relief may be overlooked to avoid a fundamental injustice. See State v. Nash, 212 N.J. 518, 546 (2013) (quoting Mitchell, supra, 126 N.J. at 587). To succeed on a claim of fundamental injustice, the petitioner must show that the error "played a role in the determination of guilt. Ibid.

In this case, defendant cannot claim he was innocent of the charges. His knowledge of the risk of deportation did not affect the truth-finding function of the court when it accepted his guilty plea. There is no compelling reason to ease the time limitation in the absence of a showing of excusable neglect for filing the PCR petition long after the events that led to defendant's conviction. The PCR court did not err in concluding that defendant's PCR petition was untimely filed.

Nor did the PCR court err in concluding that defendant would not have rejected the plea offer even if he had been informed he was subject to mandatory deportation. Defendant cites cases stating that it would not be irrational for a defendant to reject a plea offer that would result in his deportation even if he did not have much chance of avoiding conviction and a long prison sentence by going to trial. See United States v. Orocio, 645 F.3d 630, 645 (3d Cir. 2011); People v. Picca, 947 N.Y.S.2d 120, 130-31 (App. Div. 2012). While that may be true in many cases, defendant must come forward with some form or suggestion of a defense to the charges in order to show that a decision to stand trial would be a rational choice when the defendant has been offered a non-custodial sentence on a charge that otherwise carries a significant and mandatory prison sentence. If defendant has no defense whatsoever to the charge, he is only delaying the inevitability of deportation while he serves a long prison sentence.

In this case, defendant did not suggest he had any defense to the charges, or any rational prospect of avoiding conviction. He had sold cocaine to undercover officers three times, and a large quantity of cocaine had been seized from his person. The search of his residence pursuant to a warrant had produced additional incriminating evidence. The record does not suggest any ground for suppressing the highly incriminating evidence against him. Moreover, there was no possibility of a better plea offer had he rejected the non-custodial offer the prosecutor's office made in exchange for his cooperation.

Defendant's choice was not between more or less time in prison followed by deportation; the choice was no prison sentence or a substantial prison sentence, both followed by potential deportation. What is more, deportation was not then, and has not until this time, loomed as an inevitable result of his guilty plea. Defendant's bald assertion that he would have rejected the plea offer and stood trial simply has no credibility in his PCR petition.

We conclude that the PCR court did not err in denying the PCR petition.

A

1 Neither the copy of the indictment nor any other document provided in our record indicates the degrees of the offenses charged.