STATE OF NEW JERSEY v. DAVID SILVA

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NOT FOR PUBLICATION WITHOUT THE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.

DAVID SILVA,

Defendant-Appellant.

__________________________________________________

Submitted May28, 2014 Decided June10, 2014

 

Before Judges Fisher and Espinosa.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-02-0197.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, 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

On June 26, 2010, defendant a citizen of Ecuador pleaded guilty to one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and was sentenced a few months later to a five-year prison term subject to an eighty-five percent period of parole ineligibility. Defendant appealed, but withdrew that appeal, and later filed a timely post-conviction relief (PCR) petition, arguing he was not properly advised of the deportation consequences of his guilty plea.

The PCR petition was denied, and defendant appeals, arguing:

I. THE PCR COURT SHOULD HAVE GRANTED THE DEFENDANT AN EVIDENTIA[R]Y HEARING ON HIS MOTION FOR POST-CONVICTION RELIEF BASED UPON AFFIRMATIVE MISADVICE REGARDING THE IMMIGRATION CONSEQUENCES OF A CONVICTION FOR SECOND-DEGREE SEXUAL ASSAULT.

 

II. DEFENDANT MADE A PRIMA FACIE CASE OF DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL WHERE TRIAL COUNSEL PRESSURED HIM TO PLEAD GUILTY DUE TO HIS STATUS AS AN ILLEGAL ALIEN AND WAS THEREFORE ENTITLED TO AN EVIDENTIARY HEARING.

 

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

Because defendant entered his guilty plea a few months after the Supreme Court decided Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1475, 176 L. Ed. 2d 284, 299 (2010), he was entitled to the benefit of its holding that, with the exception of unusually difficult cases, an attorney must advise a criminal defendant "whether his plea carrie[s] the risk of deportation." Defendant was, of course, also entitled to the benefit of the principle, which pre-existed Padilla, that a defendant is denied the effective assistance of counsel when given incorrect advice regarding the immigration consequences of a guilty plea. See State v. Nunez-Valdez, 200 N.J. 129, 142-43 (2009).

Here, defendant asserted in his PCR petition that his trial attorney: "assured me that it was not definite that I would be deported" as a result of pleading guilty; "pressured me into taking the plea and never discussed taking the case to trial and asserting my innocence"; and "only visited me at the jail twice, and even on those times I had trouble communicating with her." He concluded that "[i]f I had understood that I would definitely be deported, and there would be no way to fight deportation, I would not have taken the plea and would have instead gone to trial."

In denying relief, the PCR judge referred to the plea form executed by defendant in which he acknowledged, as a noncitizen, his awareness of the potential for deportation. More importantly, the PCR judge relied on what transpired at the plea hearing and how defendant's testimony at that time eliminated any doubt that may have existed on the question of deportation:

[DEFENSE COUNSEL]: Your Honor[,] the last time we were here Mr. Silva accepted the State's offer and he was ready to plea[d] but he was a little bit unsure about the immigration issue. I explained to him that by pleading guilty he will be deportable. And since this is an aggravated felony[1]

 

THE COURT: I don't agree with your attorney [about defendant being] deportable.

 

[DEFENSE COUNSEL]: You disagree?

 

THE COURT: He will be deported.

 

[DEFENSE COUNSEL]: Okay.

 

THE COURT: It's an agg it's an aggravated felony, right?

 

[DEFENSE COUNSEL]: Right.

 

THE COURT: He's going.

 

[Emphasis added.]

 

Defense counsel then suggested a ground upon which defendant might "have a very slim chance" of remaining in this country. The judge stated that this circumstance "doesn't matter," and concluded this discussion by stating the deportation question would be cleared up once defendant was placed under oath.

After defendant was sworn in, the judge asked him the following questions and received the following answers:

Q. And my understanding is that you are not a United States [c]itizen?

 

A. No.

 

Q. And the last time we were here we were putting this plea through when you indicated you wanted to speak to an immigration attorney. Is that correct?

 

A. Yes.

 

[DEFENSE COUNSEL]: Your Honor, may [I] interrupt[?] I did speak to the family. They did contact an immigration attorney, pro bono some kind of pro bono agency. The attorney did not follow up. I called, could not get through, and the attorney did not come here to the jail. So he did put forth an effort, but he sort of just gave up on that.

 

THE COURT: Okay.

 

[DEFENSE COUNSEL]: Thank you.

 

BY THE COURT:

 

Q. Do you need any more time to speak to an immigration lawyer, or are you ready to put your plea through today?

 

A. I'm ready to plea[d] guilty today.

 

Q. Okay. Now, you you understand that as we spoke before that you will be at the conclusion of your incarceration you will be deported because this is an aggravated felony. Do you understand that?

 

A. Yes.

 

Q. Are you pleading guilty because you are getting a a more favorable sentence and

 

A. Yes.

 

Q. and because of that favorable sentence you you are pleading guilty knowing that you will be deported. Is that correct?

 

A. Yes.

 

[Emphasis added.]

 

As for the assertion in his PCR petition that he was "pressured" into pleading guilty, defendant gave the following testimony at the plea hearing:

Q. Now, is anybody forcing you, threatening you, or coercing you to enter a plea of guilty?

 

A. No.

 

And, as for the allegation in the PCR petition that counsel did not meet with him a sufficient number of times or was not understood by defendant when they met, defendant acknowledged under oath at the plea hearing that his lawyer was "able to answer[] any questions [he] had about this plea," and he was "satisfied with the services of [his] lawyer."

Because defendant's testimony at the time of the plea hearing belies every material allegation contained in his PCR petition, and because defendant made no attempt to explain away these discrepancies in the PCR petition, the PCR judge correctly refused to conduct an evidentiary hearing and properly denied relief.

Affirmed.

1This was in reference to 8 U.S.C.A. 1227(a)(2)(A)(iii) (which calls for deportation of "[a]ny alien who is convicted of an aggravated felony . . ."), and 8 U.S.C.A. 1101(a)(43)(A) (which defines "aggravated felony" to include, among other things, "rape, or sexual abuse of a minor"). The victim here was thirteen years old.