STATE OF NEW JERSEY v. ADALGIZA GUERRERO

NOT FOR PUBLICATION WITHOUT THE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.

ADALGIZA GUERRERO,

Defendant-Appellant.

_____________________________________

April 30, 2014

Submitted January 8, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No.

2-11.

Law Firm of Galantucci & Patuto, attorneys for appellant (Richard G. Potter, of counsel and on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Michelle E. Ditzhazy, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Adalgiza Guerrero has been a lawful permanent resident of the United States for twenty-eight years. In December 2010, she pled guilty to the disorderly persons offense of shoplifting, N.J.S.A. 2C:20-11b, in the Secaucus Municipal Court. As this was defendant's fourth such conviction, she was sentenced to ninety days in the Hudson County Jail and ordered to pay a $1000 fine, a $50 VCCB assessment, a $75 SNSF penalty, and $33 in court costs. Defendant appealed to the Law Division alleging ineffective assistance of counsel in connection with her guilty plea. Because defendant entered her plea after Padilla v. Kentucky, 559 U.S. 356, 369, 130 S. Ct. 1473, 1483-84, 176 L. Ed. 2d 284, 296 (2010), thereby obligating her counsel to advise her of its immigration consequences, the Law Division remanded the matter to the municipal court for a hearing on her ineffective assistance claim.

At the hearing, counsel acknowledged that he was aware defendant was not a United States citizen. He testified that he did not advise defendant regarding the immigration consequences of her plea, most likely because he knew she had three prior convictions for shoplifting. In this matter, defendant pled guilty to taking two Nintendo games out of their packaging at a Best Buy store and putting them into her handbag. She was apprehended by store personnel after bypassing the cash registers and leaving the store. The entire incident, including her apprehension, was captured on video by the store's security cameras. Counsel acknowledged that he had reviewed the video and that defendant is readily identifiable as the woman taking the merchandise and exiting the store. He testified that in light of the evidence and defendant's prior record, the plea bargain was a favorable one.

Defendant testified that she did not know that she could be deported as a result of her plea. She said she was not aware that she faced a maximum term of one hundred and eighty days if convicted. She acknowledged having pled guilty to shoplifting on three prior occasions but claimed she could not recall whether she discussed her immigration status with prior counsel on those occasions or the effect of those pleas on her status. She claimed that her poor understanding of English and her medication made it difficult for her to remember those conversations. She testified, however, that she had four children and three grandchildren here and would have never pled guilty to this offense had she been aware it could result in her being deported.

Having heard the evidence, the municipal court judge denied relief. Although finding that defendant was not advised of the deportation consequences of her plea, the judge determined that defendant failed to establish that the conviction was one involving moral turpitude, subjecting her to deportation under

8 U.S.C.A. 1227(a)(2)(A)(i). Moreover, the judge reasoned that if shoplifting is a crime of moral turpitude under

8 U.S.C.A. 1227(a)(2)(A)(i), as defendant contended, then she has been subject to deportation since her second conviction for shoplifting pursuant to 8 U.S.C.A. 1227(a)(2)(A)(ii). Because this fourth conviction would not change that status, the judge found defendant could not establish prejudice.

Defendant appealed to the Law Division. Analyzing defendant's claims under the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), the judge found defendant had satisfied the first prong that counsel's representation fell below an objective standard of reasonableness. The judge, however, found defendant could not establish prejudice under the second prong. He reasoned that "[i]t would be irrational for a person without a valid defense and facing a much greater sentence than that negotiated in a plea bargain to reject the offer in the face of a conviction." The judge concluded that "[i]n light of the overwhelming evidence against [defendant], it cannot rationally be concluded that had she been aware of the consequence of accepting a plea agreement she would have chosen to go on to trial." See Padilla, supra, 559 U.S. at 372, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297. Accordingly, the judge agreed with the municipal court judge that defendant had failed to demonstrate a prima facie case for relief. See State v. Preciose, 129 N.J. 451, 462-64 (1992).

On appeal, defendant contends that she satisfied both prongs of Strickland, and that the Law Division judge misapprehended the prejudice she suffered when her counsel failed to advise her of the deportation consequences of her plea. Specifically, defendant contends that she received ninety days in the county jail as a result of her plea, and could not have received more than a maximum of one hundred and eighty days had she been convicted at trial. See N.J.S.A. 2C:43-8. She contends that no rational person considering the difference between ninety and one hundred and eighty days in the county jail, when weighed against deportation from her home of twenty-eight years and separation from her children and grandchildren, would have opted for the shorter jail sentence thereby risking deportation. See State v. Maldon, 422 N.J. Super. 475, 485-86 (App. Div. 2011) (discussing considerations feeding into a defendant's showing that, had he been properly advised, it would have been rational for him to decline the plea offer and insist on going to trial and that he probably would have done so).

It is axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, she is obliged to show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency, she "would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); see also Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

We agree with defendant and the Law Division Judge that counsel's failure to advise defendant of the deportation consequences of her plea after Padilla, satisfies the first prong of Strickland. See Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483-84, 176 L. Ed. 2d at 296. The State concedes the point. But we are not convinced by defendant's argument that had she been properly advised, it would have been rational for her to decline the plea offer and insist on going to trial and that she likely would have done so. Id. at 372, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297.

Whether it would have been rational for defendant to have accepted the plea on being properly advised comes down to the issue identified by the municipal court judge, that is, whether defendant was already deportable based on her prior convictions. If she were already subject to deportation by virtue of her prior record, then this plea would not have altered that calculus and rejecting the plea would be risking an additional ninety days in jail for no possible benefit, a decidedly irrational result.

Defendant fails to identify the statute that she contends renders her subject to deportation.1 The omission is glaring given that she appealed from the municipal court alleging the judge erred in her analysis of federal immigration law. The State argues that the applicable statute is the one relied on by the municipal judge, 8 U.S.C.A. 1227(a)(2)(A)(ii), which provides

(ii) Multiple criminal convictions. Any alien who at any time after admission is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.

If this is, indeed, the statute that renders defendant subject to deportation, and defendant has identified no other, then the State is obviously correct that defendant's plea did not subject her to deportation because she was already deportable before she even entered her plea.

We agree with the Law Division judge that defendant has failed to carry her burden of showing that had she been properly advised, it would have been rational for her to decline the plea offer and insist on going to trial, as she has failed to show how even an acquittal (unlikely as it would be) would change her deportation status. Accordingly, we do not disturb the concurrent findings of the municipal court and the Law Division that defendant has failed to establish facts demonstrating prejudice under the second prong of Strickland. State v. Locurto, 157 N.J. 463, 474 (1999).

Affirmed.

1 The issue of whether the disorderly persons offense of shoplifting under New Jersey law renders an alien subject to deportation appears unsettled under federal law. See Castillo v. Attorney Gen. U.S., 729 F.3d 296, 298 (3d Cir. 2013).