STATE OF NEW JERSEY v. SANDRO LOUIS

NOT FOR PUBLICATION WITHOUT THE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.

SANDRO LOUIS,

Defendant-Appellant.

____________________________

December 7, 2015

Submitted November 9, 2015 Decided

Before Judges Simonelli and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 07-02-0385, 07-05-1006, 09-02-0424 and 09-12-2865.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

James P. McClain, Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Sandro Louis appeals from the March 14, 2014 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

We derive the following facts from the record. On May 7, 2007, defendant pled guilty under Atlantic County Indictment No. 07-02-0385 to third-degree possession of a controlled dangerous substance (CDS) with intent to distribute. At the plea hearing, defendant testified that he understood, signed and reviewed the plea forms with his attorney. Defendant had answered "Yes" to question 17 on the plea form, which asked if he understood that if he was not a United States citizen or national, he may be deported by virtue of his guilty plea.

On June 20, 2007, defendant pled guilty under Atlantic County Indictment No. 07-05-1006 to third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1). At the plea hearing, he testified that he understood, signed and reviewed the plea forms with his attorney. Defendant again answered "Yes" to question 17. On August 10, 2007, defendant was sentenced on Indictment Nos. 07-02-0385 and 07-05-1006 to a three-year probationary term with 180 days in the county jail.

On July 20, 2009, defendant pled guilty under Atlantic County Indictment No. 09-02-0424 to third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). At the plea hearing, defendant testified that he read, understood and signed the plea forms, reviewed the plea forms with his attorney, and had no questions regarding the plea forms. Defendant had answered "No" to question 17a, which asked if he was a citizen of the United States. Defendant also answered "Yes" to question 17b, which asked if he understood that if he was not a United States citizen or national, he may be deported by virtue of his guilty plea.

On January 29, 2010, defendant pled guilty under Atlantic County Indictment No. 09-12-2865 to an amended charge of fourth-degree hindering apprehension, N.J.S.A. 2C:29-3. At the plea hearing, he testified, under oath, that he read, understood and signed the plea forms and reviewed the plea forms with his attorney. Defendant had answered "No" to question 17a, which asked if he was a citizen of the United States, and answered "Yes" to question 17b, which asked if he understood that if he was not a United States citizen or national, he may be deported by virtue of his guilty plea.

On January 29, 2010, the court sentenced defendant on Indictment Nos. 09-02-0424 and 09-12-2865 to an aggregate four-year term of imprisonment. Before the sentenced was imposed, the following colloquy occurred

THE COURT: All right. Do you understand by entering [a guilty plea to fourth-degree hindering apprehension] and the other ones that you have that may have a very serious impact upon your immigration status and that the United States very likely will seek to have you removed? Do you understand that?

[DEFENDANT]: Yes, sir.

On February 4, 2013, defendant filed a PCR petition under Indictment Nos. 09-02-0424 and 09-12-2865, arguing that trial counsel rendered ineffective assistance by failing to advise him of the mandatory deportation consequences of his guilty pleas.

In a March 28, 2014 written opinion, the PCR judge denied the petition without an evidentiary hearing. The judge first found that the July 20, 2009 plea transcript belied defendant's claim that he was not advised of the deportation consequence of his plea. The judge next found that defendant pled guilty before Padilla v. Kentucky, 559 U.S. 356, 367, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010), and there was no evidence that counsel misinformed him about the deportation consequences of his plea. The judge determined that the January 29, 2010 sentencing transcript "clearly demonstrate[d]" that the court specifically advised defendant of the likelihood of his deportation, "thus correcting any possible alleged error made by counsel." The judge concluded that defendant failed to make a prima facie showing of ineffective assistance of counsel to warrant an evidentiary hearing.

On appeal, defendant raises the following contentions

POINT ONE

THIS MATTER MUST BE REMANDED BECAUSE THE PCR COURT DENIED RELIEF WITHOUT STATING FINDINGS OF FACT OR CONCLUSIONS OF LAW. (Not raised below).

POINT TWO

[DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR MISINFORMING HIM ABOUT THE MANDATORY DEPORTATION CONSEQUENCES OF HIS PLEA.

We have considered defendant's first contention in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We address defendant's second contention.

Our Supreme Court has held that

[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.

[State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (alterations in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).]

See also State v. Parker, 212 N.J. 269, 279 (2012).

The Supreme Court of the United States has held that defense attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea. Padilla, supra, 559 U.S. at 367, 130 S. Ct. at 1482, 176 L. Ed. 2d at 294. However, the Court held that Padilla does not apply retroactively. Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013). Our Supreme Court held that Padilla is a new rule to be applied prospectively only. State v. Gaitan, 209 N.J. 339, 371-72 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); see also State v. Santos, 210 N.J. 129, 143 (2012).

Here, all of defendant's guilty pleas were entered before Padilla. Therefore, his pleas were "not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Gaitan, supra, 209 N.J. at 361. Even if defendant's pleas were vulnerable, the record confirms he was well-aware of the potential deportation consequences of his pleas.

A limited exception arises when defense counsel provided affirmatively misleading advice about the immigration consequences of a guilty plea, specifically, where defense counsel informed the defendant there would be no immigration consequences arising from his plea. See Nu ez-Vald z, supra, 200 N.J. at 139-43; Santos, supra, 210 N.J. at 143. The exception is inapplicable here because counsel did not misinform defendant about the mandatory deportation consequences of his guilty pleas. Rather, counsel gave defendant no advice at all because deportation was not mandatory at the time of the guilty pleas. Accordingly, defendant cannot establish that counsel rendered ineffective assistance by failing to inform him of the mandatory deportation consequences of his pleas. See Gaitan, supra, 209 N.J. at 374.

Affirmed.