STATE OF NEW JERSEY v. JOSE LOURENCO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-5409-14T2

A-0843-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE LOURENCO,

Defendant-Appellant.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE A. LOURENCO,

Defendant-Appellant.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE LOURENCO,

Defendant-Appellant.

January 13, 2017

Submitted October 19, 2016 Decided

Before Judges Alvarez and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 97-08-0658 (A-4691-14); Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-08-1346 (A-5409-14); and Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-10-2501 (A-0843-15).

Neal M. Frank, attorney for appellant.

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (A-4691-14) (Samuel Marzarella, Chief Appellate Attorney, of counsel; O. Nicholas Monaco, Assistant Prosecutor, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (A-5409-14) (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (A-0843-15) (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jose A. Lourenco appeals the denial of three separate petitions for post-conviction relief (PCR) in three counties. He contends that his three attorneys' failure to explain the deportation consequences of his guilty pleas constitutes ineffective assistance of counsel. We consolidate the matters for decision. All are affirmed.

Defendant is a native of Brazil. He was a permanent legal resident when the charges were lodged against him, as reflected on all three pre-sentence reports.

The chronology of defendant's convictions and his deportation proceedings is important to an understanding of this decision. First, defendant was sentenced in Essex County on September 18, 1996, to three years' probation, mandatory fines, penalties, and assessments on his plea to third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5. Two years later, on October 2, 1998, defendant was sentenced in Ocean County to a four-year term of imprisonment, mandatory fines, penalties, and assessments on an unrelated plea to third-degree possession of controlled dangerous substances with intent to distribute. Finally, on April 4, 2005, defendant entered a guilty plea in Monmouth County to third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1).

On April 14, 2005, the United States Immigration and Customs Enforcement (ICE) advised defendant by way of written notice that proceedings for his removal from the country had been instituted, based on the Essex and Ocean County convictions. It is undisputed that defendant had notice of the immigration proceedings before his sentence in Monmouth County on August 26, 2005.

When sentenced in Monmouth County, defendant was placed on probation for a term of two years. At the sentence hearing, neither the ICE proceedings nor defendant's immigration status was mentioned.

Thereafter, on November 16, 2006, defendant obtained a deferral of removal pursuant to the Convention Against Torture (CAT), 8 C.F.R. 208.16. The government appealed, the deferral was overturned, and defendant was deported in 2009. His appeal followed and eventually resulted in the reinstatement of the immigration judge's CAT order. Accordingly, defendant was returned to this country on April 24, 2013.

The CAT "grant of deferral of removal" enables defendant to continue to live and work in this country, but with restrictions. He is not permitted to travel outside of the United States. Defendant must apply for work authorization annually; he may not become a permanent resident.

On all three plea forms, defendant responded to question 17 as follows

17. 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 Yes No

No on-the-record discussion occurred regarding defendant's residency status when the pleas were entered or when he was sentenced. No direct appeals were taken from any of the convictions.

Defendant signed a certification in support of his Essex County petition for PCR on October 14, 2014. We do not have a filed copy of the document, or the accompanying notice. Essentially the same certification was earlier filed with his petition in Ocean County on October 3, 2014, and earlier still in Monmouth County on March 15, 2014. In all the documents, defendant certified that despite knowing about his residency status, none of the attorneys who represented him advised him regarding the deportation consequences of conviction.

Defendant also stated that had he known he would be deported as a result of his guilty plea, he "would have insisted on proceeding to trial or some alternative disposition." Defendant claimed during the course of oral argument on his petition in Ocean County, during which he was permitted to testify, that in 2010 his immigration attorney said he should address his legal problems "one thing at a time." This is the only explanation in the record for defendant's delay in seeking PCR relief between the 2005 notice of removal and the 2014 PCR petitions.

ESSEX COUNTY 1996

According to the narrative of the incident found in the Essex County presentence report we have been provided, defendant's charges arose when police responding to a burglar alarm observed him and a co-defendant seated inside a pickup truck seemingly counting vials of heroin and cocaine. When searched, defendant was found in possession, in addition to the vials seized from the vehicle, of thirty-eight packs of heroin.

The Law Division judge who decided the Essex County PCR petition noted that at the time of defendant's conviction, the law did not require more than occurred there. Defendant was not given misleading or incorrect information. Since defendant did not indicate that his residency status was even an issue, it was not discussed in court. The judge opined: "writing 'not applicable' on [defendant's plea form] where it was shown [he] has a permanent residency" did not constitute ineffective assistance of counsel requiring an evidentiary hearing, "especially given the amount of time that has expired, between 1996 and now."

OCEAN COUNTY 1998

According to police reports included in the appendix defendant submitted on appeal, the source of information for this charge was a confidential informant who notified the authorities that defendant was about to sell ten bags of heroin to a particular individual at a certain time in a Wawa parking lot. Officers went to the location and arrested defendant in the midst of the transaction. After arrest, defendant told the officers that he had more drugs in the pockets of his coat, located at his girlfriend's house. Not only did he admit to selling drugs in the Wawa parking lot, he described driving to Newark to purchase them for resale. When chalk and a razor blade were discovered in his car, he described to police how he mixed the shaved chalk dust with the heroin to create more product, thereby increasing his profit.

The Ocean County Law Division judge denied defendant's PCR petition in a written decision. He concluded that relief was barred by Rule 3:22-12(a)(1) because the petition was filed more than five years after entry of the judgment of conviction, specifically, more than sixteen years afterwards. The judge noted that although defendant claimed he was unaware of any deportation consequences resulting from the entry of his plea, the letter he provided from his immigration attorney established that removal proceedings were initiated in 2005, some nine years before defendant filed the PCR petition. Citing to State v. Brewster, 429 N.J. Super. 387 (App. Div. 2013), the court held that defendant's failure to pursue PCR relief in the intervening time without any convincing explanation, meant he had not established excusable neglect.

Defendant attributed the nine-year lapse between the time he learned of the deportation consequences and the filing of his petition to his immigration attorney allegedly stating in 2010 that he should deal with one legal issue at a time. This, the judge found, did not meet the excusable neglect standard. Thus he concluded that the petition was procedurally barred.

With regard to the merits of the ineffective assistance of counsel claim, the judge found that, pursuant to the prevailing norm at the time the plea was entered, counsel at the time was considered ineffective only if he or she gave misleading or incorrect immigration advice. See State v. Gaitan, 209 N.J. 339, 372-73 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). The judge did not consider a "not applicable" response to question 17 to be equivalent to either incorrect or misleading advice.

Moreover, defendant had no viable defense to the Essex County charges. He was therefore already subject to mandatory deportation when the Ocean County charges were filed.

The judge also found, in light of the State's overwhelming proofs and defendant's extended-term sentence eligibility as a second-time distributor,1 that defendant's contention that he would have insisted on going to trial was simply incredible. He found: "[i]t would not have been rational for defendant to forego his favorable plea offer and insist on going to trial on the basis of his concern for his immigration status when, at the time of his plea, he was already facing mandated deportation."

MONMOUTH COUNTY 2005

According to the police reports, an anonymous citizen reported that defendant would be returning to his home in possession of heroin that he had just purchased in Newark. One of the officers who responded to the tip was familiar with defendant and his ongoing drug dependency, because he had earlier been called to defendant's home when defendant feared he had been mortally sickened by drugs he had consumed.

When confronted by the officers investigating the anonymous tip, defendant consented to a search of his car, after which a canine and handler were called. The dog alerted to certain areas of the vehicle. Officers found a vial of cocaine between the driver's seat and the center console, twelve decks of heroin in defendant's wallet, and sixteen glass vials in his lunch container.

The Monmouth County Law Division judge who denied defendant's PCR petition found that defendant's claims were time barred under Rule 3:22-12(a)(1). Defendant had been served with ICE's notice of removal after the entry of his plea but before his sentence and said nothing. Thus in the judge's opinion, it was reasonable to assume that defendant was well aware before being sentenced in 2005 that this offense, along with the two others, would result in his deportation. Since defendant offered no viable explanation for his delay, he did not establish anything approximating excusable neglect. Additionally, defendant did not establish a fundamental injustice as the judge put it, "[t]his is not the exceptional case that merits the relaxation of the time bar."

The judge further found that, as a separate issue from the time bar, defendant had not established ineffective assistance of counsel by a preponderance of the credible evidence. Referencing the standard of the time, he did not demonstrate that his attorney gave him "false, misleading, or inaccurate advice concerning the immigration consequences of a plea." Failure to provide advice was not equivalent to ineffective assistance at the time the plea was entered.

The Monmouth County judge agreed with defendant that the attorney's response to question 17 was potentially misleading, and might satisfy the first prong of Strickland2 that the representation fell outside the range of competent assistance. Nevertheless, given the facts of the case, the second prong of Strickland was not met. Defendant did not demonstrate that he would have gone to trial but for the advice, or that the outcome would have been different, in light of the State's overwhelming proofs and the potential of parole ineligible time if sentenced after conviction. Accordingly, defendant failed to establish a prima facie case and was not entitled to an evidentiary hearing.

Defendant raises the following points on each of his three appeals

OCEAN COUNTY

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED, AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT THE TIME HE ENTERED HIS GUILTY PLEA AND AT HIS SENTENCE PROCEEDING.

POINT II

THE PCR COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL AND DECISIONAL LAW GUARANTEES TO EFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE PCR COURT ABUSED ITS DISCRETION IN APPLYING THE RULE 3:22-12(a)(1) TIME BAR BECAUSE OF THE IMPORTANCE OF THE ISSUES RAISED BY THE DEFENDANT AND THE RESULTING FUNDAMENTAL INJUSTICE TO HIM.

POINT IV

THE DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA AS IT WAS NOT ENTERED WITH FULL KNOWLEDGE OF ALL THE CONSEQUENCES RESULTING THEREFROM.

ESSEX COUNTY

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED, AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT THE TIME HE ENTERED HIS GUILTY PLEA AND AT HIS SENTENCE PROCEEDING.

POINT II

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT III

THE RULE 3:22-12(a)(1) TIME BAR WAS NOT APPLICABLE DUE TO THE IMPORTANCE OF THE ISSUES RAISED BY THE DEFENDANT AND THE RESULTING FUNDAMENTAL INJUSTICE TO HIM.

POINT IV

THE DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA AS IT WAS NOT ENTERED WITH FULL KNOWLEDGE OF ALL THE CONSEQUENCES RESULTING THEREFROM.

MONMOUTH COUNTY

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED, AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT THE TIME HE ENTERED HIS GUILTY PLEA AND AT HIS SENTENCE PROCEEDING.

POINT II

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION IN APPLYING THE RULE 3:22-12(a)(1) TIME BAR BECAUSE OF THE IMPORTANCE OF THE ISSUES RAISED BY THE DEFENDANT AND THE RESULTING FUNDAMENTAL INJUSTICE TO HIM.

POINT IV

THE DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA AS IT WAS NOT ENTERED WITH FULL KNOWLEDGE OF ALL THE CONSEQUENCES RESULTING THEREFROM.

We discuss only the time bar to defendant's petitions, which renders defendant's other claims moot.

Rule 3:22-12(a)(1) states that a PCR petition shall not be filed more than five years after conviction "unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." The petition itself must allege the facts defendant relies upon as supporting the excusable neglect claim. State v. Mitchell, 126 N.J. 565, 576-77 (1992); State v. Brewster, supra, 429 N.J. Super. at 396.

Turning to the rule's first requirement, nothing in the record establishes excusable neglect. Even if we give defendant the benefit of the doubt, and calculate the delay from 2005, the year he was noticed by ICE, he does not legally justify his failure to seek relief since that time. Defendant in 2010 was allegedly told to address one legal issue at a time by his immigration attorney an unconvincing and incredible assertion, no more than a bare allegation. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) certif. denied, 162 N.J. 199 (1999). Even were we to credit such a bare allegation, see Cummings, defendant offers no meaningful explanation for the failure to file between 2005 and 2010. Ignorance of the law does not establish excusable neglect. Id. at 165.

Moreover, even if we were to find excusable neglect, for the sake of argument, defendant has simply not demonstrated that enforcement of the time bar would result in a fundamental injustice. A showing of such exceptional circumstances will set aside the time bar. Brewster, supra, 429 N.J. Super. at 400-01. But the circumstances surrounding each of defendant's charges make it improbable that he would have rejected the plea offers and gone to trial. All three were possessory offenses the State could have easily prosecuted with overwhelming proof. If defendant had been convicted after trial, the likely outcome of all three offenses, defendant would have then faced the prospect of an extended term of imprisonment followed by deportation. "If a claim of ineffective assistance of counsel follows a guilty plea, the defendant must prove counsel's constitutionally deficient representation and also 'a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Id. at 392 (citations omitted).

In the Essex County matter, police officers responding to a call about a burglary saw defendant and his co-defendant in a pickup truck counting vials of heroin and cocaine. When arrested based on these observations, defendant had an additional thirty-eight packs of heroin on his person.

In the Ocean County matter, after police received an anonymous tip, they intercepted defendant while he was selling drugs. He confessed, and showed police where he had hidden additional drugs.

In the Monmouth County matter, police received a tip, and acting on the information discovered defendant in the midst of a drug transaction in possession of heroin. Defendant consented to the search of his car, which resulted in the officers locating additional vials of drugs in defendant's lunchbox, not to mention the discovery of additional heroin in his wallet.

There is no likelihood defendant would have rejected the plea bargains he was offered on these offenses. Accordingly, defendant has not demonstrated the exceptional circumstances that warrant setting aside the time bar. No fundamental injustice resulted from defendant's acceptance of favorable plea bargains resulting in minimal time for the offenses.

Even if we were to conclude, which we do not, that in this case failure to give advice is misadvice, defendant still has not met the second prong of Strickland. The likelihood of conviction after a trial was high in each county, and stiffer sentences a certainty.

Defendant has neither demonstrated excusable neglect or a fundamental injustice that would enable him to sidestep the five-year time bar. These PCR petitions were properly dismissed or denied as untimely filed.

Affirmed.

1 N.J.S.A. 2C:43-6(f) imposes mandatory minimum sentences for second-time drug distributors. The extended term defendant would have received for this third-degree offense, had he been convicted at trial, would have been five to ten years imprisonment subject to parole ineligibility of one-third to one-half of the base term or a minimum of three years.

2 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To reverse a conviction because of ineffective assistance of counsel, a defendant must demonstrate two components. First, that his counsel's performance was deficient and second, that the deficient performance prejudiced his defense. Id. at 687.