STATE OF NEW JERSEY v. JULIO LUNA

NOT FOR PUBLICATION WITHOUT THE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.

JULIO LUNA,

Defendant-Appellant.

_________________________________

January 22, 2014

Submitted January 7, 2014 Decided

Before Judges Fisher and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-02-0160.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Julio Luna appeals from an order of the Law Division denying his petition for post-conviction relief. We affirm.

On October 8, 2009, defendant, a permanent resident, pled guilty to two counts of third-degree passing bad checks, N.J.S.A. 2C:21-5. Defendant was sentenced to a five year period of probation and ordered to pay $27,000 in restitution. Defendant did not file a direct appeal from the conviction or sentence. Thereafter, the United States Department of Immigration and Customs Enforcement advised defendant of its intention to remove him, as the offense to which he pled guilty qualifies him as a "deportable alien" subject to mandatory removal from the United States. See 8 U.S.C.A. 1227(a)(2)(A)(ii).

On August 8, 2011, defendant filed a verified petition for post-conviction relief alleging ineffective assistance of counsel. Specifically, defendant claimed plea counsel failed to advise he would be removed from the United States if he pled guilty. Defendant contends that had he been properly counseled, he would not have entered a plea but would have proceeded to trial. He now seeks to have the guilty plea set aside.

To establish a case of ineffective assistance of counsel, a defendant must show that, first, the attorney made errors so serious that the attorney was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Second, the defendant must show that counsel's errors were so serious that defendant was deprived of a fair trial. Id. A defendant seeking to set aside a guilty plea based on ineffective assistance of counsel must show his attorney's performance was not "'within the range of competence demanded of attorneys in criminal cases' and 'there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty but would have insisted on going to trial.'" State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009)(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).

During oral argument before the PCR judge, defendant conceded that, even though he is a permanent resident, before he pled guilty he circled "yes" to the question on the plea form which asks if a defendant is a United States citizen. He contends, however, that the Pre-sentence Report (PSR) correctly states he is a permanent resident, and had his plea counsel carefully read the PSR, he would have noticed the discrepancy and should have ascertained defendant's true citizenship status and advised him of the removal consequences of pleading guilty. Defendant makes the same argument on appeal.

On January 27, 2012, the PCR judge denied defendant's petition, finding he did not make out a prima facie case of ineffective assistance of counsel under the first prong of the Strickland test. The court found that, in addition to stating on the plea form he was a United States citizen, he also represented, in the presence of counsel, he was an American citizen when questioned by the court about his immigration status at the plea hearing. The court further observed that defendant did not represent in any documents filed in support of his petition that he told plea counsel his true immigration status.

On appeal, defendant asserts the PCR judge's conclusions were erroneous, claiming his attorney's failure to ascertain his true citizenship status and advise of the immigration consequences of a guilty plea were contrary to the standards set forth in Nu ez-Vald z and Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).

Nu ez-Vald z held that a defendant meets the first prong of the Strickland test if the attorney renders false or affirmatively misleading advice about the deportation consequences of a guilty plea. 200 N.J. at 140-42. At the time Nu ez-Vald z was decided, an attorney was not required to give any advice about the deportation consequences of pleading guilty; however, if any advice was rendered and it was erroneous or misleading, the first prong of the Strickland test was met.

Within a year Nu ez-Vald z was decided, the United States Supreme Court went further and held in Padilla that the Sixth Amendment obligation to render effective assistance requires criminal defense attorneys to inform clients of the possible immigration consequences of entering a guilty plea. Padilla, supra, 559 U.S. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295. That is, an attorney must now affirmatively provide accurate advice of the deportation consequences of a guilty plea.1 Significantly, our Supreme Court in State v. Gaitan, 209 N.J. 339, 373 (2012), held that, as Padilla established a new rule of law, the holding in Padilla applied prospectively only. Thereafter, the United States Supreme Court reached the same conclusion, finding Padilla did not apply retroactively. Chaidez v. United States, 568 U.S. , , 133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149, 162 (2013).

Here, while defendant alleges his attorney failed to adhere to the standard enunciated in Nu ez-Vald z, defendant did not provide any evidence his attorney rendered false or affirmatively misleading advice about the deportation consequences of pleading guilty. Rather, defendant asserted he did not receive any advice at all on this issue, even after his attorney read or should have read the PSR. But even if the attorney failed to render any advice about the risk of removal if defendant pled guilty, Padilla is unavailing to defendant, as he pled guilty before Padilla was decided.

The remaining arguments raised by defendant lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

1 Padilla held that when the deportation consequences of a guilty plea are "unclear or uncertain," an attorney "need do no more than inform a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296.