STATE OF NEW JERSEY v. BIGENSTON FLOREAL

NOT FOR PUBLICATION WITHOUT THE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.

BIGENSTON FLOREAL,

Defendant-Appellant.

____________________________

September 28, 2015

Submitted June 23, 2015 Decided

Before Judges Alvarez and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-12-1144.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor,attorney forrespondent (Stephanie Davis Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Bigenston Floreal appeals from the March 19, 2014 Law Division order, which denied his petition for post-conviction relief (PCR) grounded on the ineffective assistance of counsel. We affirm.

We derive the following facts from the record. Defendant immigrated to the United States in May 1994. He was a lawful permanent resident, but not a United States citizen. In 2006, he pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7, in exchange for the State's agreement to recommended a maximum three-year term of imprisonment.

At the plea hearing on December 7, 2006, defendant acknowledged, under oath, that he initialed and signed the plea forms, where he answered "Yes" to the question asking whether he understood that if he was not a United States citizen or national he may be deported by virtue of his guilty plea, and "Yes" to the question asking if he was satisfied with the advice of his attorney. In addition, defendant testified that he understood all of the questions on the plea forms, reviewed the questions with his attorney, gave honest answers to all questions, and was satisfied with his attorney's advice. Defendant then gave a factual basis for his plea. On March 12, 2007, the court sentenced defendant to a non-custodial three-year probationary term. Defendant did not appeal.

As a result of his guilty plea, in June 2013, defendant became involved in deportation proceedings. On July 1, 2013, he filed a PCR petition, seeking to vacate his guilty plea, arguing defense counsel never advised him of the deportation consequences.

The PCR judge denied the petition, concluding that defendant made no prima facie showing that defense counsel affirmatively misadvised him about the deportation consequences of his plea, as required by State v. Nu ez-Vald z, 200 N.J. 129 (2009). Rather, the judge found that defendant was well-aware of the deportation consequences at the time he pled guilty, as evidenced by his sworn testimony that he understood and truthfully answered the questions on the plea forms, which discussed the immigration consequences, signed the plea forms, reviewed the plea forms with his attorney, and was satisfied with his attorney's advice.

On appeal defendant raises the following contentions

POINT I THE ORDER DENYING [PCR] SHOULD BE REVERSED BECAUSE, REGARDLESS OF WHETHER TRIAL COUNSEL WAS INEFFECTIVE UNDER THE STRICKLAND TEST, TRIAL COUNSEL'S CONFLICT OF INTEREST WITH DEFENDANT RESULTED IN CONSTITUTIONALLY[-] DEFECTIVE REPRESENTATION. [NOT RAISED BELOW].

POINT II THE ORDER DENYING [PCR] SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIATY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER [RULE] 3:22 [PCR] STANDARDS.

POINT III THE PCR COURT'S RULINGS VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

We first address defendant's contentions in Points II and III. Our Supreme Court has established the standard of review in PCR cases as follows

Our standard of review is necessarily deferential to a PCR court's factual findings based on its review of live witness testimony. In such circumstances we will uphold the PCR court's findings that are supported by sufficient credible evidence in the record. An appellate court's reading of a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness he [or she] has observed firsthand. Last, we need not defer to a PCR court's interpretation of the law; a legal conclusion is reviewed de novo.

[State v. Nash, 212 N.J. 518, 540-41 (2013) (citations omitted).]

As the Court explained,

to 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.

[Nu ez-Vald z, supra, 200 N.J. at 139 (2009) (second alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (internal quotation marks omitted).]

See also State v. Parker, 212 N.J. 269, 279-80 (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 v. Kentucky, 559 U.S. 356, 367, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). 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, defendant pled guilty four years before Padilla. Therefore, his "guilty plea is 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.

A limited exception to this rule arises when defense counsel provided affirmatively misleading advice about the immigration consequences of a guilty plea. See Nu ez-Vald z, supra, 200 N.J. at 139-43 (where defense counsel informed the defendant there would be no immigration consequences arising from his plea); see also Santos, supra, 210 N.J. at 143. That exception is inapplicable here because defense counsel did not misinform defendant there would be no immigration consequences arising from his plea; rather, counsel gave no advice at all because deportation was not mandatory at the time of defendant's plea. In any event, the record confirms that defendant was well aware of the deportation consequences at the plea hearing and chose to plead guilty nonetheless. Accordingly, defendant cannot establish that defense counsel rendered ineffective assistance by failing to inform him of the mandatory deportation consequences of his plea, and no evidentiary hearing was warranted. See Gaitan, supra, 209 N.J. at 374.

Defendant contends for the first time on appeal in Point I that regardless of whether defense counsel rendered ineffective assistance under the Strickland1 standard, counsel's resolution of the case via a pre-grand jury plea to a crime that mandated deportation constituted a per se conflict of interest that rendering counsel's representation defective under the Sixth Amendment.2 Generally, we decline to review issues raised for the first time on appeal where, such as here, they do not go to the jurisdiction of the court or concern a matter of great public interest. State v. Robinson, 200 N.J. 1, 20 (2009). Nevertheless, we have considered defendant's 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).

Affirmed.

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

2 U.S. Const. amend. VI.