STATE OF NEW JERSEY v. JEREMIAH GUERRA-GOMEZ

NOT FOR PUBLICATION WITHOUT THE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.

JEREMIAH GUERRA-GOMEZ,

a/k/a JEREMIAS GOMEZ,

Defendant-Appellant.

_______________________________

November 30, 2015

Before Judges Alvarez and Haas.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-04-0724.

Ruth E. Hunter, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Hunter, on the brief).

Ryan J. Gaffney, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Mr. Gaffney, on the brief).

PER CURIAM

Defendant Jeremiah Guerra-Gomez appeals from a April 24, 2014 Law Division order denying his petition for post-conviction relief (PCR). Following review of the record and the applicable law, we affirm.

A Hudson County grand jury returned a one-count indictment charging defendant with robbery, N.J.S.A. 2C:15-1.1 On July 20, 2006, defendant pled guilty to an amended third-degree charge of theft from person, N.J.S.A. 2C:20-2(b). On September 22, 2006, the trial judge sentenced defendant in accordance with the negotiated plea to one year of probation with credit for time served.2

On July 10, 2013, almost seven years later, defendant filed a pro se PCR petition contending he was entitled to have his plea vacated because of ineffective assistance of counsel. In a certification accompanying his petition, defendant stated that he is a "native and citizen of El Salvador" and entered the United States in 2003. Defendant asserted that, on June 27, 2013, the United States Immigration and Customs Enforcement Unit (ICE) took defendant into custody on an immigration detainer. He claimed that his attorney failed to advise him "of the grave immigration consequences he would face as a result of pleading guilty." Instead, he stated that his attorney told him he would "not necessarily face any immigration consequences" if he did "not do prison time[.]"

Defendant's PCR counsel subsequently submitted an additional certification from defendant. In this certification, defendant stated that he had been a lawful permanent resident of the United States for over ten years, but he provided no documentation concerning this claim. Before defendant pled guilty, he asserted his attorney told him, "'I am not an immigration lawyer, but as far as I know you have nothing to worry about concerning immigration . . . as long as you don't serve any prison time . . . .'"

The plea form defendant signed in 2006 contained the following language: "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?" In response, defendant circled the word "yes."

During the plea colloquy, the judge asked defendant whether he was a United States citizen, and defendant replied, "[n]o." The judge then asked defendant, "Do you understand that by pleading guilty you may be deported but it's not this [c]ourt that does that, it would be through immigration? It doesn't mean that it will happen, but there is a possibility it could." Defendant replied, "[y]es." The judge also asked defendant, "Other than what has been placed on the record[,] has anyone promised you anything?" Defendant replied, "[n]o."

Defendant contended that the time bar found in Rule 3:22 should be ignored in his case because to do otherwise would result in a manifest injustice. He also argued that his lack of knowledge regarding the prospect of deportation, which lasted until he was picked up by ICE, established excusable neglect.

In her oral decision denying defendant relief, the Law Division judge3 found that defendant's alleged ignorance of the time bar until he was detained by ICE did not constitute excusable neglect justifying his late filing. After reviewing the Strickland4 standard, the court observed that when defendant entered his plea, he acknowledged signing and initialing the plea form and discussing the terms of the agreement with his attorney. Furthermore, nothing in the record established that he entered into the plea agreement because of his attorney's representations.

On appeal, defendant raises the following contentions

POINT I

THE TRIAL COURT ERRED IN DENYING AN EVIDENTIARY HEARING.

POINT II

THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT'S PCR PETITION WAS TIME-BARRED.

We review de novo the PCR court's conclusions of law. State v. Nash, 212 N.J. 518, 540-41 (2013). We address only defendant's claim that the court erred by dismissing his petition because it was time-barred. That analysis makes it unnecessary for us to reach his other point of error.

The familiar Strickland standard defines the showing a defendant must make in order to prevail on PCR: that substandard professional assistance was rendered by his or her trial counsel, and that the outcome of the proceedings was prejudiced as a result. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The Strickland standard was adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

A defendant may meet the first prong of the Strickland ineffective assistance of counsel test in the context of a guilty plea where he or she can show that counsel's representation fell short of the prevailing standards expected of criminal defense attorneys. Padilla v. Kentucky, 559 U.S. 356, 366-67, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). Counsel's performance is not deficient so long as "a defendant considering whether or not to plead guilty to an offense receives correct information concerning all of the relevant material consequences that flow from such a plea." State v. Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012). The second prong requires a defendant to establish a reasonable probability that he or she would not have pled guilty but for counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).

It is undisputed that "a defendant can show ineffective assistance of counsel by proving that his [or her] guilty plea resulted from 'inaccurate information from counsel concerning the deportation consequences of his [or her] plea.'" State v. Brewster, 429 N.J. Super. 387, 392 (App. Div. 2013) (quoting State v. Nu ez-Vald z, 200 N.J. 129, 143 (2009)). Counsel's duty includes an affirmative responsibility to inform a defendant entering a guilty plea of the relevant law pertaining to mandatory deportation. Padilla, supra, 559 U.S. at 368-69, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295. Our Supreme Court has made clear that counsel's "failure to advise a non-citizen 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), however, the United States Supreme Court concluded that Padilla, by imposing a new obligation and a new rule of law, would be applied prospectively only. Id. at ___, 133 S. Ct. at 1113, 185 L. Ed. 2d at 162. Accordingly, "defendants whose convictions became final prior to Padilla . . . cannot benefit from its holding." Ibid.

Guilty pleas entered prior to Padilla are reviewed to determine whether counsel provided affirmatively false information regarding the plea's immigration consequences. State v. Santos, 210 N.J. 129, 143-44 (2012). "Only if defendant's attorney affirmatively gave incorrect advice about the deportation consequences of his [or her] guilty plea might he [or she] be entitled to set aside his [or her] conviction in accordance with the holding of Nu ez-Vald z." Brewster, supra, 429 N.J. Super. at 394-95. Defendant entered his plea prior to Padilla.

We conclude that this record does not support any claim that defendant's attorney affirmatively misled him. Defendant admitted under oath that he reviewed his plea form with his attorney, and it stated that deportation was a possible consequence to the entry of a guilty plea. Nothing said during the plea colloquy refuted the statement made in the plea form. Consequently, the PCR judge's analysis was proper. We have only defendant's bare allegation that his attorney provided him information contrary to what was stated on the plea form and defendant's sworn testimony during the plea colloquy, which contradicts his current allegation. That is not enough to establish that counsel's advice deviated from the prevailing professional norms.

In assessing excusable neglect, we "consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). More than "a plausible explanation for [the defendant's] failure to file a timely PCR petition" is required. Ibid. That defendant had not earlier faced deportation is not a sufficient explanation for the failure to file a timely PCR petition. Ignorance of the process does not establish excusable neglect. State v. Murray, 162 N.J. 240, 246 (2000).

Clearly, Rule 1:1-2(a) permits courts in "exceptional circumstances" to relax the five-year time bar, but only if a defendant can demonstrate an injustice by a preponderance of the credible evidence. State v. Mitchell, 126 N.J. 565, 579 (1992). To relax the five-year time limitation, our Supreme Court has required a showing of "compelling, extenuating circumstances," State v. Milne, 178 N.J. 486, 492 (2004) (quoting Afanador, supra, 151 N.J. at 52); or alternatively, "exceptional circumstances," Murray, supra, 162 N.J. at 246. The five-year time bar may be set aside only to avoid a fundamental injustice where the deficient representation of counsel affected "a determination of guilt or otherwise wrought a miscarriage of justice." Nash, supra, 212 N.J. at 546 (quoting Mitchell, supra, 126 N.J. at 587). Defendant has not demonstrated a miscarriage of justice which would warrant setting aside the five-year time bar.

Because we find that the trial judge correctly applied relevant precedents, we find no error in her refusal to grant the petition.

Affirmed.

1 The indictment did not specify whether this was a first- or a second-degree offense.

2 The judge granted defendant 223 days of jail credit from February 12, 2006 to September 22, 2006.

3 The PCR judge was the same judge who accepted defendant's guilty plea and sentenced him.

4 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).