STATE OF NEW JERSEY v. LEONARDO FLETCHER

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

LEONARDO FLETCHER,

Defendant-Appellant.

___________________________________________________

October 28, 2014

Submitted October 21, 2014 Decided

Before Judges Fisher and Accurso.

On appeal from the Superior Court of New Jersey,Law Division,Essex County,Indictment No. 03-03-1161.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex CountyProsecutor, attorneyfor respondent(Barbara A.Rosenkrans, SpecialDeputy AttorneyGeneral/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On August 1, 2003, defendant pleaded guilty to third-degree endangering the welfare of a child pursuant to a plea agreement, which included the State's recommendation of a probationary sentence. At the plea hearing, defendant acknowledged his understanding that the "maximum penalty for the crime" to which he pleaded guilty consisted of a prison sentence; he was not advised he would be deported as a result. In response to questioning, defendant admitted he was responsible for taking care of the victim and "slap[ped] her on her buttock" a "[c]ouple times." He also expressed that he was aware his actions "might have endangered or degraded the morals" of the victim.

On November 1, 2003, pursuant to the plea agreement, defendant was sentenced to a three-year probationary term, and the indictment's other counts, which included two first-degree offenses, a second-degree offense, and four other third-degree offenses, were dismissed. He did not appeal and apparently completed the probationary term without incident.

Nearly eight years after his conviction, defendant was detained by federal Immigration and Customs Enforcement (ICE) officials because his 2003 offense arguably constituted "sexual abuse of a minor," 8 U.S.C.A. 1101(a)(43)(A), and, potentially, an "aggravated felony" subjecting him to removal from this country, 8 U.S.C.A. 1227(a)(2)(A)(iii).1

Following his arrest and detention by ICE in Connecticut, defendant filed a post-conviction relief (PCR) petition seeking withdrawal of his guilty plea based on a claim of ineffective assistance of counsel.2 Defendant's PCR petition was supported by the certification of his trial attorney, who acknowledged he only advised defendant that his guilty plea meant only that "he may be deported."

Even though defendant completed the probationary term, the State opposed the PCR petition, which was denied, and now opposes the following arguments asserted by defendant in this appeal

I. THE DEFENDANT PROVIDED A FACTUAL BASIS FOR A FINDING OF EXCUSABLE NEGLECT AND IN THE INTERESTS OF JUSTICE SHOULD BE PERMITTED TO PROCEED WITH HIS SUBSTANTIVE POST-CONVICTION RELIEF CLAIMS.

II. THE DEFENDANT IS ENTITLED TO WITHDRAW FROM THE PLEA AGREEMENT.

A. THE DEFENDANT WAS DENIED EFFEC-TIVE ASSISTANCE OF COUNSEL AT THE PLEA PROCEEDING.

B. THE DEFENDANT IS ENTITLED TO WITHDRAW FROM THE PLEA AGREEMENT BECAUSE THE DEFENDANT DID NOT ENTER INTO THE AGREEMENT WITH FULL KNOWLEDGE OF THE MATERIAL AND PENAL CONSEQUENCES.

III. THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIAL HEARING.

Although defendant argues his PCR petition was not time-barred, and the State argues to the contrary, we observe that the PCR judge did not apply any procedural bar in denying relief but instead ruled on the merits. In any event, we reject the application of a procedural bar in this case because the PCR petition was triggered by events occurring more than five years after entry of judgment. Defendant expeditiously sought relief once detained by ICE officials. The interests of justice command that the PCR petition be considered on its merits. See, e.g., R. 3:22-12(a)(1).

In any event, the decisions of the Supreme Court of the United States and our own Supreme Court3 demonstrate that defendant's arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). Indeed, defendant's guilty plea and the advice rendered at the time that he "may be deported" as a consequence are not distinguishable from State v. Telford, 420 N.J. Super. 465, 471-79 (App. Div. 2011), certif. denied, 209 N.J. 595 (2012), where we recognized that many cases present too convoluted a framework for a criminal defense attorney to provide a client with clear and definite advice about the deportation consequences of a guilty plea. Accordingly, we conclude, for the reasons more fully expressed in Telford where, like here, the defendant pleaded guilty to third-degree endangering after receiving similar advice that even if the professional norm expressed in Padilla had existed in 2003, the deportation consequence of defendant's guilty plea was far from clear and, therefore, counsel's cursory advice that defendant "may be deported" was not inaccurate or misleading. The advice in question met the minimal level of competence established by precedents binding on this court.

Affirmed.

1We neither express nor intimate any opinion about whether the factual basis given by defendant in pleading guilty meets the definitions cited above. We assume this is a matter to be adjudicated in a federal proceeding.

2Defendant remains incarcerated. According to the PCR judge's written decision, defendant is currently housed in the Elizabeth Detention Center.

3Although the Court held in Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010), that the Sixth Amendment requires, in most cases, that criminal defense attorneys advise their noncitizen clients of the deportation consequences of a guilty plea, the Court later held this determination was only to be applied to guilty pleas entered after the day Padilla was decided. Chaidez v. United States, __ U.S. __, __, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013). Since at least State v. Nu ez-Vald z, 200 N.J. 129, 140-42 (2009), this State's Supreme Court has recognized that only misleading advice given by defense counsel to a noncitizen may constitute ineffective assistance. And, once Padilla was decided, the Court held that Padilla should not be applied retroactively as the Supreme Court of the United States later held in Chaidez thereby precluding ineffectiveness claims absent misleading advice regarding guilty pleas that preceded March 31, 2010. See State v. Gaitan, 209 N.J. 339, 372 (2012), cert. denied, __ U.S. __, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Interestingly, two states have taken a different approach and provided greater rights to noncitizens convicted in their courts prior to the day Padilla was decided. The Supreme Judicial Court of Massachusetts has determined that state constitutional principles require the retroactive application of Padilla, see Commonwealth v. Sylvain, 995 N.E.2d 760, 762 (Mass. 2013), and the Supreme Court of New Mexico has held that attorneys there had been required to give deportation advice long before Padilla was decided, see Ramirez v. State, 333 P.3d 240, 246-47 (N.M. 2014). Because our Supreme Court in Gaitan ruled on the retroactivity question by applying both federal and state constitutional principles, there is no merit in defendant's arguments to the extent he may seek relief based on state constitutional principles.