STATE OF NEW JERSEY v. SERGIO A. 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NOT FOR PUBLICATION WITHOUT THE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.

SERGIO A. GOMEZ,

Defendant-Appellant.

__________________________________

August 31, 2016

Submitted May 4, 2016 Decided

Before Judges Ostrer and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-12-1532.

JeffreyB. Steinfeld,attorney for appellant.

AndrewC. Carey,Middlesex County Prosecutor, attorney for respondent (Jason M. Boudwin, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Sergio Gomez, a citizen of the Dominican Republic, appeals from the trial court's November 6, 2014, denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant collaterally challenges his 2003 conviction, after a guilty plea, of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), and terroristic threats, N.J.S.A. 2C:12-3(b). He also challenges his 2013 violation of probation (VOP), arising from the same conviction, to which he pleaded guilty. Defendant contends his attorneys in 2003 and 2013 provided ineffective assistance of counsel by failing to advise him of the immigration consequences of his pleas.

We agree with the trial court that defendant's petition regarding his 2003 conviction is time-barred pursuant to Rule 3:22-12. As for his 2013 VOP, even if his counsel's performance had been deficient, defendant failed to demonstrate prejudice, as he was ultimately terminated from probation without improvement. Therefore, we affirm.

I.

The 2003 convictions arose from a 2002 incident between defendant and his estranged girlfriend. At the October 22, 2003, plea hearing, defendant explained that his girlfriend bit his hand after he "tried to caress her hair." He "tried to shake it off" and then reflexively hit her to get his hand "out of her mouth." He also "might have said something to try to get her" off of him. Although he could not remember what he said, he stated that his intent was to scare her, and that she was in fact scared. When asked if he told her, "I'm going to kill you now," he first said he could not recall his exact words, then stated he "might have" said that phrase, and then stated he did not "dispute" saying that phrase.

In response to the court's question, defendant stated he was a United States citizen. Defendant acknowledged his signature on the last page of the plea form and stated that he reviewed the form in detail with his attorney. In response to Question 17 of the plea form, which asked, "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?", "N/A" was circled. A uniform defendant intake (UDI) form prepared in February 2003 reported that defendant had lived his whole life in New Jersey.1

The judge accepted defendant's plea and simultaneously sentenced him to an aggregate term of five years' probation, conditioned on time served of 316 days. Other conditions included a substance abuse evaluation and drug treatment. Defendant had four prior drug-related convictions, including one that resulted in a one-year prison term. The court found aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3), (6), (9), which outweighed mitigating factor ten, N.J.S.A. 2C:44-1(b)(10).

Defendant was resentenced in November 2004 and December 2008 after twice violating probation. His term of probation was extended one year in 2004, and three years in 2008.2 Defendant was charged with a third VOP for failing to report to probation on various dates between 2009 and 2012, and failing to complete a drug treatment program. The statement of charges is not included in the record. A UDI form dated December 6, 2012, reported that defendant was born in Perth Amboy.

On February 4, 2013, defendant, represented by a new lawyer, waived his right to a hearing and pleaded guilty to VOP. At the informal proceeding, defendant presented excuses for his failure to complete treatment and to report, but admitted his violations and expressed remorse. The trial court then resentenced defendant to a flat term of five years in State prison, noting that he had 365 days of jail credit.

Defendant appealed from the court's resentence, and in September 2015 we remanded for reconsideration of the sentence in accordance with the standards set forth in N.J.S.A. 2C:45-3(b), State v. Molina, 114 N.J. 181 (1989) and State v. Baylass, 114 N.J. 169 (1989).3 On December 14, 2015, the trial court vacated the five-year sentence and terminated probation without improvement.

However, before defendant's appeal from the 2013 resentence was heard, the federal government initiated deportation proceedings against him. That prompted him to file a pro se verified PCR petition on November 11, 2013. His petition alleged that he received ineffective assistance of counsel in connection with his 2003 guilty plea, as he "was not told" by his plea counsel about the immigration consequences of his plea. Defendant asserted that, had he been "giv[en] the right info," he would have proceeded to trial.

On April 17, 2014, defendant, through counsel, submitted a second petition, this time alleging ineffective assistance of counsel in connection with his 2003 and 2013 guilty pleas. He stated he was born in the Dominican Republic in 1973 and entered the United States "in Lawful Permanent Resident (Green Card) status" in 1983. Regarding his 2003 plea, defendant asserted that his plea counsel never asked him about his citizenship status, and did not review any part of the plea form with him, including Question 17. Defendant asserted that the "N/A" box next to Question 17 had been checked without his knowledge. He also asserted that when the judge asked if he was a U.S. citizen, he "didn't understand the question," and thought that he "might be a citizen" by virtue of how long he had lived in the United States. Defendant alleged his plea counsel did not mention any immigration consequences of the plea.

Regarding his 2013 plea to VOP, defendant asserted that his VOP counsel never advised him that admitting to the violation would make his "offense an aggravated felony" and result in "immediate and automatic deportation." Although the record does not include any documents related to the immigration proceeding, we presume defendant was referring not to the violation itself, but the five-year resentence. See 8 U.S.C.A. 1227(a)(2)(A)(iii) (a non-citizen is deportable if he is convicted of an "aggravated felony"); 8 U.S.C.A. 1101(43)(F) (defining "aggravated felony" to include "a crime of violence . . . for which the term of imprisonment [is] at least one year").

His petition asserted that had he been properly advised, he would not have entered the open plea to the VOP. He stated, "I would have insisted on a hearing, and had my public defender fight much harder for me and make specific arguments as to why the Court had to sentence me to less than one year in jail." Defendant did not profess his innocence in either petition.

Judge Bradley J. Ferencz denied defendant's PCR petition on November 6, 2014 without an evidentiary hearing. In a thorough written opinion, the judge found that the petition with regard to the 2003 conviction was time-barred pursuant to Rule 3:22-12, as the petition was filed more than five years after the conviction and defendant had not established "excusable neglect."

The judge also addressed the merits of the ineffective assistance claim, finding that defendant had not satisfied the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must show (1) his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different). The judge found that defendant's misrepresentation of his immigration status defeated his claim that his attorneys in 2003 and 2013 should have reviewed the immigration consequences of his plea. The judge cited defendant's representations about his citizenship at his plea hearing and on the UDI forms. The judge also held defendant failed to establish prejudice, explaining that, while he intended to plead guilty again if PCR were granted, there was no legal basis to impose a lesser sentence solely because of his immigration status.

The judge also denied defendant's motion to vacate his 2003 guilty plea due to an inadequate factual basis. The judge found defendant had attested to sufficient specific facts to support the aggravated assault and terroristic threats offenses.4 The judge also emphasized that defendant had "admitted his guilt" to both offenses and did not "express a contemporaneous claim of innocence."

Finally, Judge Ferencz denied defendant's motion to withdraw his 2003 guilty plea, applying the four-factor test set forth in State v. Slater, 198 N.J. 145 (2009).5 Regarding the first factor, whether defendant "asserted a colorable claim of innocence," id. at 157, the judge noted that defendant "maintains his guilt" and "does not assert his innocence at all." The judge emphasized that defendant's current position was he did not seek a trial, but instead sought a more favorable plea agreement. Regarding the second factor, the nature and strength of the reasons for withdrawal, id. at 157-58, the judge found defendant had not "demonstrated any fair and just reasons for withdrawal." The judge explained that defendant "is entirely at fault" for his plea counsel's failure to give advice regarding the risk of deportation, as defendant did not tell the truth about his citizenship status.

With respect to the third Slater factor, the existence of a plea bargain, id. at 158, the judge noted that defendant pled guilty pursuant to a negotiated plea bargain, but the court did not attach much weight to this factor. Regarding the fourth factor, the judge found that withdrawal would not result in unfair prejudice to the State or unfair advantage to defendant, as he only sought to plead guilty again in return for a more favorable sentence. See ibid.

Defendant presents the following points on appeal for our review

POINT ONE

The Court Below Erred When it ruled that it would not Consider Appellant's Application for Post-Conviction Relief Out of Time Pursuant to R. 3:22-12, given that the Facts Demonstrate that the Delay in Filing was Due to the Defendant's Excusable Neglect and there is a Reasonable Probability that if the Appellant's Factual Assertions were Found to be True Enforcement of the Time Bar would result in a Fundamental Injustice.

POINT TWO

The Court below also Erred in Not Finding Appellant's Counsel to be Ineffective; both Original Counsel and his Public Defender who represented Appellant at the VOP Hearing in 2013, since at neither time was Appellant properly advised of the effect of his Criminal Conviction on his Immigration Status.

POINT THREE

In the Alternative, the Court Below Erred in Concluding that there was no reason to vacate Defendant's Guilty Pleas; they must be vacated due to a lack of Factual Basis.

POINT FOUR

The Court below erred in Not Granting Petitioner's Motion to Withdraw his Guilty Plea.

II.

As no evidentiary hearing was conducted, we review de novo "both the factual findings and legal conclusions of the PCR court." State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005).

We begin with defendant's petition for PCR in connection with his 2003 conviction. "Rule 3:22-12(a)(1) sets a five-year time limitation for the filing of a PCR petition, unless the petition itself shows excusable neglect for the late filing and fundamental injustice if defendant's claims are not considered on their merits." State v. Brewster, 429 N.J. Super. 387, 398 (App. Div. 2013). Defendant contends his counsel's failure to inquire into his citizenship status and his own unfamiliarity with the American legal system satisfy both requirements.

We disagree. We rejected a similar argument in Brewster, in which we held that allegedly deficient advice does not equate with excusable neglect, for if it did, "long-convicted defendants might routinely claim they did not learn about the deficiencies in counsel's advice on a variety of topics until after the five-year limitation period had run." Id. at 400. Defendant's ignorance-of-the-law claim has similar implications. In any event, a prisoner's "assertion that he lacks sophistication in the law" does not establish excusable neglect. State v. Murray, 162 N.J. 240, 246 (2000).

Nor does a claimed ignorance in the law satisfy the requirement of "fundamental injustice," which involves "some showing that an error or violation played a role in the determination of guilt." State v. Nash, 212 N.J. 518, 547 (2013) (internal quotation marks and citation omitted). Defendant has not attempted to make such a showing, as he emphasizes he is not seeking to go to trial, but rather seeks "a reduction in his sentence to no more than 364 days in the County Jail."

Even assuming the challenge to the 2003 conviction was not time-barred, we agree with Judge Ferencz that defendant failed to present a prima facie case of ineffective assistance. Defendant argues that his plea counsel's failure to adequately advise him of the risk of deportation was ineffective assistance of counsel. Defendant challenges the adequacy of the plea form, which referred only to the possibility of deportation, and contends that the "N/A" response to question 17 was erroneous, since defendant was not a citizen.

However, as Judge Ferencz concluded, the error was of defendant's doing, since he asserted he was a citizen. Padilla v. Kentucky, 559 U.S. 356, 366, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010), prospectively established the obligation of defense attorneys to inform clients of the immigration consequences of a plea. See Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1107, 185 L. Ed. 2d 149, 155 (2013). But defendant's counsel in 2003 had no duty to challenge his client's own assertion that he was a United States citizen.

A closer issue is presented with respect to the scope of his 2013 counsel's professional duty. The most recent ABA standards, promulgated in 2015, state that defense counsel "should determine a client's citizenship and immigration status[.]" ABA Criminal Justice Standards for the Defense Function 4-5.5(a) (4th ed. 2015). This is not always an easy determination to make. See Padilla, supra, 559 U.S. at 379-80, 130 S. Ct. at 1489, 176 L. Ed. 2d at 302 (Alito, J., concurring) ("[I]t may be hard, in some cases, for defense counsel even to determine whether a client is an alien"); Cesar Cuauhtemoc Garcia Hernandez, Criminal Defense After Padilla v. Kentucky, 26 Geo. Immigr. L. J. 475, 515-16 (2012) (arguing that a defense attorney should independently determine whether a client is a U.S. citizen).

We need not resolve this issue, as defendant did not establish prejudice resulting from his VOP counsel's failure to question his prior assertions of citizenship. Although the VOP court initially resentenced defendant to a term of five years, that sentence was vacated upon remand, and defendant was terminated from probation. We cannot imagine a more favorable disposition, even had VOP counsel inquired of defendant's citizenship prior to the VOP hearing.6 Furthermore, 364 days in the county jail the disposition defendant contends he would have sought had his VOP counsel been effective was no longer an option. By the time of defendant's VOP hearing, he had spent a total of 365 days in custody. If that rendered him guilty of an aggravated felony, his VOP counsel's performance was inconsequential.

III.

We also reject defendant's argument that his 2003 conviction must be vacated because it lacked a sufficient factual basis. Our court rules generally "require a judge to elicit a factual basis for a guilty plea." State v. Mitchell, 126 N.J. 565, 577 (1992) (citing R. 3:9-2). "A factual basis for a plea must include either an admission or the acknowledgement of facts that meet the essential elements of the crime." State v. Tate, 220 N.J. 393, 406 (2015) (internal quotation marks and citations omitted).

Challenges to the sufficiency of the factual basis may be brought on direct appeal, on a motion to withdraw a plea under Slater, or in a PCR petition. State v. Urbina, 221 N.J. 509, 527-28 (2015). A motion to withdraw a plea and a petition for PCR are distinct procedural mechanisms for securing relief from a conviction. State v. O'Donnell, 435 N.J. Super.351, 368-73 (App. Div. 2014). We review de novo a decision on a motion to vacate a plea for an inadequate factual basis. Tate, supra, 220 N.J.at 403-04. However, we review for an abuse of discretion a decision on a motion to withdraw a plea that is supported by a sufficient factual basis. Id.at 404.

A court may, at any time, permit a post-conviction motion to withdraw a plea to correct a manifest injustice. R. 3:21-1; O'Donnell, supra, 435 N.J. Super. at 368. A PCR petition is governed by a five-year time limit, R. 3:22-12(a); and generally may not be grounded on issues that could have been raised on direct appeal, R. 3:22-4(a)(1). A motion may be filed at any time to correct a sentence "not authorized by law including the Code of Criminal Justice." R. 3:21-10(b). A PCR petition may seek the same relief, "if raised together with other grounds" cognizable under Rule 3:22-2, including a substantial denial of constitutional rights. R. 3:22-2(c).

"[U]nder some extraordinary circumstances, a court's improper acceptance of a guilty plea may constitute an illegal sentence . . . ." State v. Mitchell, 126 N.J. 565, 577 (1992). A sentence is illegal in that sense if it involves a denial of constitutional rights. Ibid. If the plea is knowingly and voluntarily entered, "a court's failure to elicit a factual basis for the plea is not necessarily of constitutional dimension and thus does not render illegal a sentence imposed without such a basis." Ibid.

The court must consider whether there is evidence that the plea was not voluntary, which includes a contemporaneous claim of innocence. "A factual basis is constitutionally required only when there are indicia, such as a contemporaneous claim of innocence, that the defendant does not understand enough about the nature of the law as it applies to the facts of the case to make a truly voluntary decision on his own." Ibid. (internal quotation marks and citations omitted).

Defendant's challenge to the factual basis of his 2003 plea is time-barred under Rule 3:22-12. Consistent with the principles set forth in Mitchell, defendant's sentence following the plea was not an "illegal sentence" that may be challenged at any time. Although defendant highlights factual omissions in his 2003 allocution, these omissions do not undermine the voluntary and knowing nature of the plea. Indeed, defendant does not assert his plea was not voluntary or knowing, nor does he profess his innocence. In his appellate brief, defendant states that he "is not seeking to withdraw his plea and go to trial. He seeks only to withdraw his plea, re-plead with two sufficient factual bases, and obtain a sentence of even one day less than one year in jail."7

Turning to defendant's motion to withdraw his plea, we recognize that the four-factor Slater test is applicable only if a defendant has presented a sufficient factual basis for the plea. Tate, supra, 220 N.J. at 404-05. Inasmuch as defendant seeks only to re-plead, we discern no manifest injustice that warrants consideration of his motion so many years after his original plea. We find no error in Judge Ferencz's application of the Slater factors, and affirm on that point substantially for the reasons set forth in his opinion.

Affirmed.

1 Defendant signed the attestation to the financial statement portion of the UDI, but did not expressly confirm the accuracy of the residence portion of the form. The presentence report, which was prepared after defendant's sentence, also asserted that defendant was a United States citizen born in Perth Amboy.

2 The record does not clearly reflect whether defendant was subject to probationary supervision for more than five years before the 2012 statement of charges was served. See N.J.S.A. 2C:45-2(a). According to a December 2008 VOP summary, defendant absconded from probation after failing to appear at a November 30, 2005 VOP hearing. A warrant was issued, which was not executed until November 2008, when defendant was arrested on an unrelated charge. His December 2008 resentencing followed.

3 During oral argument, we inquired as to whether the VOP was untimely, if defendant had completed five years of probation, the maximum permissible term. However, defendant did not seek relief on that ground.

4 As defendant pleaded guilty to attempt to cause significant bodily injury, N.J.S.A. 2C:12-1(b)(7), proof of actual injury was not required.

5 There is no motion or brief in the record evidencing defendant's requests to vacate and withdraw his 2003 plea.

6 The only conceivably better outcome would have been dismissal of the VOP if it were served after defendant had been on probation for over five years, and defendant had objected on that ground. See N.J.S.A. 2C:45-3(a); see also notes 2 and 3 supra. However, defendant does not present that argument.

7 We recognize that an assertion of self-defense may be equivalent to an assertion that a defendant did not commit the crime charged. Urbina, supra, 221 N.J. at 528. However, since defendant seeks to re-plead and present a sufficient factual basis for the two charges, his allocution does not indicate that his plea was not voluntary.