STATE OF NEW JERSEY v. DAVID PIERRE

NOT FOR PUBLICATION WITHOUT THE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.

DAVID PIERRE,

Defendant-Appellant.

___________________________________________________

May 20, 2014

Submitted May 13, 2014 Decided

Before Judges Fisher and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 95-07-0995 and 91-06-0499.

Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant is a noncitizen who first came to this country in the 1980's. In 1991, he was indicted, pleaded guilty to drug offenses, and sentenced to a three-year prison term. Upon his release in 1993, defendant was deported to Antigua, the place of his birth but soon thereafter was permitted to return to New Jersey to take charge of his children. In 1996, defendant was again indicted, pleaded guilty to a drug offense, and sentenced to a five-year prison term. Defendant was released from prison in 1999 and remained in New Jersey until 2010, when he was arrested by federal authorities and incarcerated in a Pennsylvania prison, where he presently awaits deportation.

In 2010, defendant filed a post-conviction relief (PCR) petition, arguing he was not properly advised of the immigration consequences of his guilty pleas in 1991 and 1996. After conducting an evidentiary hearing, which included the testimony of defendant and the attorney who represented him in 1991, the PCR judge found defendant was not counseled and, also, not entitled to legal advice regarding the deportation consequences of his guilty pleas. The PCR judge denied relief.

Defendant appeals, arguing:

I. DEFENDANT DID NOT ENTER ANY OF THE GUILTY PLEAS KNOWINGLY, VOLUNTARILY, AND INTELLI-GENTLY BECAUSE HE WAS NOT ADVISED THAT THEY WERE CERTAIN TO LEAD TO HIS DEPORTATION.

II. DEFENSE COUNSEL WERE INEFFECTIVE FOR GIVING DEFENDANT MISLEADING AND INACCURATE ADVICE ABOUT THE DE[]PORTATION CONSEQUENCES OF THE PLEAS.

III. DEFENSE COUNSEL WERE INEFFECTIVE FOR FAILING TO INVESTIGATE WHETHER PIERRE WAS A U.S. CITIZEN.

IV. WHERE DEFENDANT FILED HIS APPLICATION FOR POST-CONVICTION RELIEF WITHIN MONTHS OF LEARNING THAT HE FACED DEPORTATION, HE HAS PROVIDED GOOD REASON FOR FILING BEYOND THE FIVE-YEAR TIME [LIMIT].

These arguments have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following brief comments.

It is more than fair to conclude that, as a matter of law, defendant's removal from this country following his first prison term provided all the information defendant would ever need to understand that should he again be in the same position deportation would follow. But we need not decide the appeal on that ground because the legal framework for considering defendant's claim of ineffective assistance of counsel requires affirmance of the denial of his PCR petition.

That is, the PCR judge found that defendant's attorneys in 1991 and 1996 gave no advice regarding the deportation consequences of defendant's guilty pleas. In 2010, the Supreme Court of the United States declared that, in most cases, attorneys must give affirmative immigration advice to their clients in criminal matters. Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010). Following a period of uncertainty as to what this holding meant for defendants who had pleaded guilty prior to Padilla but later sought post-conviction relief, the Supreme Court decided Chaidez v. United States, 568 U.S. __, __, 133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149, 162 (2013), concluding that Padilla's holding applied only to guilty pleas entered after March 31, 2010, the day Padilla was decided.

Consequently, an ineffectiveness claim regarding a guilty plea in a New Jersey court turns on whether the noncitizen relies on the Padilla holding or on the rule announced in State v. Nunez-Valdez, 200 N.J. 129, 142-43 (2009), which recognized, prior to Padilla, that a criminal defense attorney may be constitutionally ineffective when giving incorrect immigration advice. Stated another way, a criminal defense attorney's failure to give immigration advice prior to the day Padilla was decided is inconsequential; with regard to pre-Padilla pleas, our courts are only obligated to determine if deportation advice was volunteered whether that advice was accurate. Here, defendant does not claim he was misadvised, only that he was not advised. Because he entered his guilty pleas prior to March 31, 2010, we are compelled to conclude that defendant's ineffective-assistance claim is without legal merit. See Chaidez, supra, 568 U.S. at __, 133 S. Ct. at 1113, 185 L. Ed. 2d at 162; State v. Gaitan, 209 N.J. 339, 373 (2012).

Affirmed.