STATE OF NEW JERSEY v. LAZARO TROYA

NOT FOR PUBLICATION WITHOUT THE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-Appellant,

v.

LAZARO TROYA,

Defendant-Respondent.

________________________________

November 13, 2014

Before Judges Koblitz and Haas.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 93-05-1169.

ThomasN. Zuppa,Jr., SpecialDeputy AttorneyGeneral/Acting Assistant Prosecutor, argued the cause for appellant (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Mr. Zuppa, on the brief).

Thomas L. Ferro argued the cause for respondent.

PER CURIAM

The State of New Jersey appeals from a March 19, 2014 Law Division order granting defendant Lazaro Troya's petition for post-conviction relief (PCR). Following an evidentiary hearing, the judge concluded that defendant's trial counsel misinformed defendant of the deportation consequences of his guilty plea and set aside defendant's 1994 conviction for third-degree burglary, N.J.S.A. 2C:18-2. We affirm.

I.

Defendant was born in Cuba and came to the United States in 1967, when he was three years old. He has lived in the United States since that time. However, he is not a United States citizen.

In March 1993, defendant was arrested with two other individuals and charged with breaking a store window and then stealing items. Pursuant to a negotiated plea, defendant pled guilty to the burglary charge. The State agreed to recommend that defendant be sentenced to a three-year term in prison, with no period of parole ineligibility, and to dismiss a third-degree theft by unlawful taking charge, N.J.S.A. 2C:20-3. During his plea colloquy, defendant stated he understood the nature of the charges and the terms of the plea agreement. He also testified he reviewed the plea form with his attorney and was satisfied with his attorney's services. Question Number Seventeen of the plea form asked defendant, "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?" The "YES" response was circled on the form. Defendant also provided a factual basis for his guilty plea. On January 6, 1994, a judge sentenced defendant in accordance with the negotiated plea.

After his release from prison, defendant moved to Florida. In 2006, defendant went to Bermuda on his honeymoon. Upon returning to the United States, he was stopped and questioned by immigration officials and, on June 23, 2006, removal proceedings were initiated against him. In a pleading filed in November 2008 by the United States Department of Homeland Security, the Department argued that defendant's 1994 burglary conviction in this matter made defendant "an Aggravated Felon" subject to deportation.1 According to a certification submitted by defendant in support of his PCR petition, defendant appeared "at a federal hearing" on May 23, 2013, and "it was determined that unless [he] could have [his] 1994 conviction overturned, [he] would be deported." Accordingly, on July 3, 2013, defendant filed his petition for PCR.

After reviewing the petition and hearing the oral argument of counsel, Judge Sheila Venable determined that an evidentiary hearing was needed. At the hearing, defendant testified he advised his attorney that he was not a United States citizen and he asked the attorney how a conviction would affect his immigration status. According to defendant, "that was the only question that really interested me because [the plea form] said if I wasn't a U.S. citizen that I was going to be deported." In response to defendant's question, the attorney told defendant that he "was Cuban, that -- that I -- I wasn't -- not worry about it, that I wasn't going to be deported." Defendant testified that, if he "had thought that [he] may get deported even later on[, he would not] have entered the guilty plea" and, instead, "would have gone to trial and taken [his] chances."

Defendant's attorney testified at the hearing and confirmed defendant's account. The attorney stated he discussed the question of deportation with defendant and

informed him that, in fact, since he was of Cuban extraction that he would not be deported, which I believed was the correct advice at the time. The United States has no relationship, no diplomatic relationship at all with Cuba. And, in fact, there was no possibility at that point in time of him being deported.

The attorney testified defendant said "he was nervous over this stipulation . . . and led me to believe that . . . if there was a possibility of him being deported that he would not enter into the [plea] agreement." The attorney stated that his advice that defendant would not be deported "was essential to [defendant] agreeing to the plea bargain[.]"

After hearing oral argument, Judge Venable issued a thorough written opinion granting defendant's petition for PCR. The judge found that defendant met both prongs of the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).2 As to the first prong, the judge stated that defendant's attorney's representation "fell below an objective standard of reasonableness" because he "materially misadvise[d defendant] regarding the immigration consequences of his guilty plea." The judge stated that defendant's attorney incorrectly told defendant "'he would not be deported'" if he pled guilty, rather than telling him that, because he was not a United States citizen, deportation was possible if the United States restored diplomatic relations with Cuba.

The judge also found that defendant met the second Strickland prong by demonstrating a reasonable probability that, but for this incorrect advice on the immigration consequences of his plea, defendant would not have pled guilty. Defendant's attorney confirmed defendant's assertion that he was very concerned he might be deported if he were convicted of burglary and that, if there was a possibility of deportation, he would prefer to take his chances at a trial rather than pleading guilty.

The judge found that defendant's decision to reject the plea if there was a possibility of deportation was "rational" under the circumstances of this case. Defendant's maximum exposure on the charges was five years in prison. Although the State agreed to recommend that defendant receive a three-year term in return for his guilty plea, the judge stated

[T]he difference in these sentences is not significant, especially when parole eligibility dates are taken into account. Rejecting the plea deal would also have been rational because, at the time, [defendant] believed the case to be defensible due to the presence of his two co-defendants, which may have clouded the responsibility and guilt issues as to each defendant. This belief, coupled with the insignificant difference between sentences, would have made turning down the plea offer a rational decision.

The judge rejected the State's contention that, even if defendant's conviction in this case were vacated, he would still face deportation on the basis of his two subsequent convictions. The judge noted that the Department of Homeland Security's pleading specifically highlighted the 1994 burglary conviction, which was the only one that "labeled" defendant as "an "Aggravated Felon" for purposes of determining his deportation status. The judge explained

[W]hile [defendant] may have other convictions that [a]ffect his immigration status, this court is concerned with whether [defendant] received effective assistance of counsel in the case at bar. This court does not have jurisdiction over cases that arose in Florida. If these cases are affecting [defendant's] immigration status, he should file for post-conviction relief in the appropriate court.

This appeal followed.

On appeal, the State raises the following contention

THE PCR COURT ERRED IN GRANTING DEFENDANT'S PETITION FOR PCR.

A. DEFENDANT FAILED TO ESTABLISH THAT PLEA COUNSEL'S PERFORMANCE WAS DEFICIENT.

B. DEFENDANT FAILED TO DEMONSTRATE ANY PREJUDICE RESULTING FROM THE INSTANT CONVICTION.

Based on our review of the record and applicable law, we are satisfied the evidence in favor of the defendant's petition overwhelmingly supports the judge's decision to grant him post-conviction relief. Accordingly, we affirm substantially for the reasons set forth in Judge Venable's thorough written opinion. We add the following comments.

We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland, supra, and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must show that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

On the question of a defendant's immigration status, the United States Supreme Court has held that the failure of an attorney to advise a client that his criminal conviction may lead to his deportation is sufficient to satisfy the first prong under Strickland. Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010). The question of whether the duty imposed on attorneys in Padilla should be applied retroactively was answered by our Supreme Court in State v. Gaitan, 209 N.J. 339 (2012). In Gaitan, the Court concluded that Padilla represented "a new constitutional rule of law that, for Sixth Amendment purposes, is not entitled to retroactive application on collateral review." Id. at 371. However, the Court has also recognized that, even prior to Padilla, criminal defense attorneys provided ineffective assistance if they gave misleading advice to their clients about deportation consequences. State v. Nu ez-Vald z, 200 N.J. 129, 140-42 (2009).

In Nu ez-Vald z, the Court addressed a claim of ineffective assistance of counsel predicated on counsel's alleged erroneous advice to a client concerning the immigration consequences of pleading guilty to a crime. Nu ez-Vald z, supra, 200 N.J. at 139-40. The defendant in Nu ez-Vald z pled guilty to what proved to be a deportable offense after he had (1) answered "yes" to the question in the plea form that read "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?," and (2) claimed that his attorney assured him that he would not be deported by pleading guilty. Id. at 141.

As the PCR court did here, the trial court in Nu ez-Vald z conducted an evidentiary hearing in which it found that "immigration consequences were very important to [the defendant] and that [his attorneys] told him that his immigration status would not be affected by a decision to plead guilty." Ibid. The Court then explained the implications of these findings on the defendant's constitutional right to effective assistance of counsel

In short, the trial court accepted defendant's testimony that he would not have pled guilty if he had known he would be deported, and found that defendant did not give a knowing, voluntary or intelligent plea. Based on the trial court's findings, which are amply supported by the record, defendant satisfied the prejudice prong of the ineffective-assistance-of-counsel analysis by showing that he would not have pled guilty but for the inaccurate information from counsel concerning the deportation consequences of his plea. Accordingly, we reverse the judgment of the Appellate Division and reinstate the trial court's order that directed withdrawal of defendant's plea and reinstatement of the matter for trial.

[Id. at 143 (footnote omitted).]

Thus, Nu ez-Vald z established that a defendant's constitutional right to effective assistance of counsel encompasses the right to receive, under the appropriate circumstances, correct legal advice on the immigration consequences of pleading guilty to a crime. A defendant can satisfy the first prong under Strickland if he or she can show that defense counsel gave erroneous advice in this area of the law. Thereafter, a defendant can satisfy the "prejudice" prong under Strickland if the trial court finds, from the evidence adduced at an evidentiary hearing, that the defendant would not have pled guilty if he or she had received the correct legal advice as to the immigration consequences of his or her plea.

Our standard of review requires us to affirm the findings of the trial court as long as they are supported by sufficient credible evidence in the record. See id. at 141. We are also bound to defer to the findings of the trial judge "'which are substantially influenced by his opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)).

With these principles as our guide, we are satisfied that the PCR court's finding, that defendant's attorney misadvised him on the deportation ramifications of his guilty plea, is fully supported by sufficient credible evidence in the record. On appeal, the State argues that defendant's attorney merely advised defendant that it "was unlikely" he would be deported and that deportation "was possible due to his status as a non-citizen[.]" However, the record clearly demonstrates that defendant's attorney unequivocally told him "he would not be deported" if he pled guilty. In addition, defendant understood his attorney's advice to mean he did not need to "worry about" deportation because it was not going to occur. However, the attorney's advice was plainly incorrect because, as set forth in the Department of Homeland Security's November 2008 pleading in the immigration review proceeding, defendant's conviction made him an "Aggravated Felon" and, therefore, subjected him to possible future deportation. Therefore, we conclude that the first Strickland prong was met.

With regard to the "prejudice" prong of Strickland, defendant and his attorney testified that defendant would not have pled guilty if there was any possibility he could be deported. Thus, the record also amply supports the judge's conclusion that, but for the incorrect advice provided by defendant's attorney, the outcome of this case would have been different. If there was any chance of deportation, defendant stated he would have taken the case to trial. As the judge found, the possible higher sentence defendant would have received if convicted after a trial was not significantly different than what he accepted as part of the plea. Thus, we discern no basis for disturbing the judge's conclusion that defendant would have had a rational basis for rejecting the plea.

Finally, we reject the State's assertion that, because defendant has two other convictions, he was not prejudiced by his 1994 burglary conviction in terms of the deportation proceedings. Contrary to the State's contention, the pleading filed by the Department of Homeland Security highlighted the 1994 conviction as a major factor in its decision to institute the deportation proceeding.

Affirmed.

1 According to the Department's pleading, defendant was also convicted of burglary in 2001, and for possession of cocaine in 1996. The Department asserted that these two convictions also made defendant eligible for deportation. Defendant testified at the PCR hearing that the deportation proceedings are ongoing. However, he is not subject to any detainer as a result of those proceedings.

2 The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012).