STATE OF NEW JERSEY v. OMAR VARGAS-AVELLAN

NOT FOR PUBLICATION WITHOUT THE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.

OMAR VARGAS-AVELLAN, a/k/a

WALTER J. COLON,

Defendant-Appellant.

__________________________________________

July 8, 2014

Before Judges St. John and Leone.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-05-0379.

Barbara Scheryl Schwartz argued the cause for appellant.

James L. McDonnell, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. McConnell, of counsel and on the brief).

PER CURIAM
 

Seeking to avoid deportation some eight years after he was convicted of exhibiting simulated documents and impersonation, defendant Omar Vargas-Avellan appeals from a December 5, 2012 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. He claims he was deprived of effective assistance of counsel when he pleaded guilty in 2006. In 2011, as support for his petition, he argued that his attorney failed to advise him that a guilty plea would affect his immigration status. However, in 2012, he changed his contention, certifying that his attorney advised him that he would not be deported by pleading guilty to the charges. We remand for an evidentiary hearing.

I.

Defendant is not a United States citizen. He was born and raised in Costa Rica and came to the United States in 1995 at the age of thirty-two. He had no criminal record before his 2006 arrest for exhibiting a false document, N.J.S.A. 2C:21-2.1(c), and impersonation, N.J.S.A. 2C:21-17(a)(4). Pursuant to an accusation, with the advice of counsel, defendant pleaded guilty to both charges. At his plea hearing on May 15, 2006, defendant admitted that, at the Motor Vehicle Division, he exhibited a fictitious New Jersey driver's license with the name of Walter Colon Rodriquez and, as part of his plea colloquy, he did not dispute that in fact there is a Walter Colon Rodriquez. Defendant admitted he purchased "the personal information of Mr. Rodriquez, the Social Security number, the date of birth. . . ."

The judge at the plea hearing, after ascertaining that defendant was not a citizen, questioned defendant about the possibility that he might be deported. The risk of deportation was also 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 read the questions and answers on the plea form and that the answers were accurate. However, nothing in the record reveals whether defendant's counsel offered defendant any advice concerning the deportation consequences of defendant's guilty plea.

On July 14, 2006, the judge sentenced defendant to one year of probation and twenty-five hours of community service, together with appropriate fines and penalties. Defendant did not file a direct appeal. He served the sentence.

Defendant filed his PCR petition on June 22, 2011. The court denied the PCR petition, without an evidentiary hearing, by order dated December 5, 2012, accompanied by a written opinion dated December 3, 2012. In his opinion, the judge acknowledged that it was defendant's assertion that he was given erroneous advice concerning the deportation consequences of his plea. The judge stated that, "[h]owever, Petitioner's certification merely states that plea counsel did not advise him of the potential for exportation from his guilty plea." That statement accurately reflects defendant's 2011 certification. However, in his 2012 certification, he states that his counsel "told me not to worry about pleading guilty to the charges and that I could not be deported by pleading guilty in that the charges were misdemeanors and would not affect my immigration or result in my deportation."

Subsequently, by order dated January 14, 2013, the judge denied defendant's motion for reconsideration and for a stay pending appeal.

On appeal, defendant raises the following issues for our consideration:

POINT I

A POST-CONVICTION CLAIM CONCERNING MISLEADING ADVICE ABOUT THE DEPORTATION CONSEQUENCES OF A PLEA IS SUFFICIENT TO SHOW THAT THE "STANDARD OF PERFORMANCE EXPECTED OF COUNSEL MAY HAVE BEEN BREACHED" REQUIRING AN EVIDENTIARY HEARING.

POINT II

DEFENDANT HAS NO KNOWLEDGE THAT THE ALLEGED FALSE PAPERS HE HAD REGARDING THE VIOLATION OF N.J.S.A. 2C:21-17a(4) WAS FROM A "REAL PERSON" AND THEREFORE AN ELEMENT OF PROOF REGARDING THIS OFFENSE COULD NOT BE MET BY THE STATE OF NEW JERSEY.

II.

The general standards by which a defendant must prove ineffective assistance of counsel 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).

We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421. The trial court's credibility determinations, to which we normally defer, are not implicated. See ibid.

We first address defendant's allegation that his guilty plea did not establish a violation of N.J.S.A. 2C:21-17(a)(4) because he had no knowledge that the false papers he had were from a "real person." We conclude this claim is procedurally barred as well as meritless, because it could "reasonably have been raised" on direct appeal. R. 3:22-4(a)(1). "[PCR] is not a substitute for [a] direct appeal." State v. Echols, 199 N.J. 344, 357 (2009) (citation omitted); R. 3:22-3. Defendant chose not to file a direct appeal.

We now address defendant's remaining contention that he was entitled to an evidentiary hearing. In State v. Nu ez-Vald z, 200 N.J. 129, 143 (2009), the Court held "a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from 'inaccurate information from counsel concerning the deportation consequences of his plea.'" State v. Brewster, 429 N.J. Super. 387, 392 (2013) (quoting Nu ez-Vald z, supra, 200 N.J. at 143). The United States Supreme Court clarified counsel's duty, which is not limited to avoiding "false or misleading information" as identified in Nu ez-Vald z, supra, 200 N.J. at 138, but encompasses an affirmative duty to inform a defendant entering a guilty plea, regarding the relevant mandatory deportation law if it is "succinct, clear, and explicit[.]" Padilla v. Kentucky, 559 U.S. 356, 368, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 295 (2010). The Court made clear counsel's "failure to advise a noncitizen client that a guilty plea will lead to mandatory deportation deprives the client of the effective assistance of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J. Super. 329, 331 (App. Div. 2012) (citing Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296).

In Chaidez v. United States, U.S. , 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), the Court held Padilla imposed a new obligation and announced a new rule of law. Accordingly, its holding would be applied prospectively and under Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075, 103 L. Ed. 2d 334, 356 (1989), "defendants whose convictions became final prior to Padilla, therefore cannot benefit from its holding." Chaidez, supra, U.S. at , 133 S. Ct. at 1113, 185 L. Ed. 2d at 162.

The State argues defendant's conviction, which predates Padilla, cannot be set aside because "defendant did not receive any affirmative misadvice from his original attorney at the time he entered his guilty pleas." State v. Santos, 210 N.J. 129, 143 (2012) ("Petitions challenging the entry of guilty pleas prior to Padilla on ineffective assistance of counsel grounds must be assessed under the law as it existed under []Nu ez-Vald z[] which instead focuses on whether counsel provided affirmative misadvice regarding the immigration consequences of a guilty plea.") (citing State v. Gaitan, 209 N.J. 339, 373-74(2012)). The State also asserts that defendant's reliance on his 2012 certification "is misplaced." The State argues that, since his 2011 certification stated only that his attorney failed to inform him that his guilty pleas would affect his immigration status, his 2012 certification asserting misadvice is not credible.

Rule 3:22-10(b) provides, in pertinent part, that

[a] defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR], a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.

"It is well-settled that, to the extent that a petition for [PCR] involves material issues of disputed facts that cannot be resolved by reference to the trial record, an evidentiary hearing must be held." State v. Porter, 216 N.J. 343, 347 (2013). In deciding whether a defendant "is entitled to an evidentiary hearing in connection with his petition for [PCR,] the facts should be 'view[ed] in the light most favorable to a defendant.'" State v. Parker, 212 N.J. 269, 282 (2012) (second alteration in original) (quoting State v. Preciose, 129 N.J. 451, 463 (1992)). Indeed, "[t]he development and resolution of ineffective assistance of counsel claims frequently call for an evidentiary hearing 'because the facts often lie outside the trial record and because the attorney's testimony may be required.'" Porter, supra, 216 N.J. at 354 (quoting Preciose, supra, 129 N.J. at 462).

Here, defendant's 2012 certification alleged that counsel told him that pleading guilty to misdemeanors would not affect his immigration status and could not cause his deportation. The State does not contest that such advice would be false and misleading. Instead, the State argues that defendant's 2012 certification is "not credible" because it is inconsistent with the plea colloquy, the plea form, and defendant's 2011 certification. However, credibility normally must be determined at an evidentiary hearing. Since facts should be viewed in the light most favorable to the defendant, we are constrained to remand the matter to the trial court. Applying these well-settled standards, we conclude that an evidentiary hearing is warranted to resolve defendant's contentions that his trial counsel rendered ineffective assistance by giving him misadvice concerning the immigration consequences of his guilty pleas.

Accordingly, we vacate the order denying defendant's petition for post-conviction relief and remand the case to the trial court for an evidentiary hearing in conformity with this opinion.