STATE OF NEW JERSEY v. JULIO A. ROSARIO

NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2257-17T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

JULIO A. ROSARIO, a/k/a
JULIO SANTOS,

     Defendant-Appellant.
_________________________

                    Submitted January 15, 2019 – Decided January 31, 2019

                    Before Judges Fisher and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 11-09-1603.

                    Parsekian & Solomon, PC, attorneys for appellant
                    (Melvin R. Solomon, on the brief).

                    Dennis Calo, Acting Bergen County Prosecutor,
                    attorney for respondent (Ian C. Kennedy, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief; John J. Scaliti, Legal
                    Assistant, on the brief).

PER CURIAM
      Defendant Julio A. Rosario appeals from a December 8, 2017 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. For the following reasons, we reverse and remand for an evidentiary

hearing.

                                        I.

      On June 11, 2011, defendant brandished a kitchen knife while attempting

to rob three customers of a pizzeria of their cellular phones. A grand jury

indicted him for first-degree robbery,  N.J.S.A. 2C:15-l; third-degree possession

of a weapon for an unlawful purpose,  N.J.S.A. 2C:39-4(d); and fourth-degree

unlawful possession of a weapon,  N.J.S.A. 2C:39-5(d).

      Defendant is not a citizen of the United States. He is a native and citizen

of the Dominican Republic. Defendant was admitted to the United States in

1983 as a legal permanent resident. He is now fifty-three years old. This was

his first criminal offense.

      Defendant is not fluent in English; an interpreter was used during his court

appearances. Defendant asserts he has diminished mental capacity and suffers

from severe mental illness. He dropped out of school after the eighth grade.

      Defendant was found incompetent to stand trial in July 2012. An April

2013 reevaluation found him competent to stand trial. The reevaluation report


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states defendant was diagnosed with Schizoaffective Disorder, depressed type

and was treated with antipsychotic and antidepressant medications. 1

      On July 7, 2014, defendant entered into a negotiated plea agreement,

pleading guilty to an amended charge of second-degree robbery,  N.J.S.A. 2C:15-

l, in exchange for a recommendation he be sentenced as a third-degree offender

to a three-year prison term under the No Early Release Act,  N.J.S.A. 2C:43-7.2,

and dismissal of the remaining charges.

      On September 12, 2014, defendant was sentenced in accordance with the

negotiated plea agreement. He did not file a direct appeal of his conviction or

sentence. Because he had accrued 1045 days credit for time served, defendant

was eligible for immediate release. Defendant was subsequently detained by

Immigration and Customs Enforcement (ICE) because he is subject to

mandatory deportation as a result of his robbery conviction, which constituted

an aggravated felony under federal immigration law because he was sentenced

to a term of imprisonment greater than one year. 8 U.S.C. §§ 1101(a)(43)(G),

1227(a)(2)(A)(iii).



1
   The report explains "[i]ndividuals with Schizoaffective Disorder have an
impaired sense of reality. Symptoms may include: fixed, false beliefs
(delusions), impaired sensory perceptions (hallucinations), bizarre affect,
disorganized speech, disordered thought processes, and bizarre behavior."
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      In July 2017, defendant moved to vacate his guilty plea or to modify his

sentence from a three-year term to 364 days, claiming his guilty plea was not

made knowingly, voluntarily, or intelligently because trial counsel did not

explain the effect of pleading guilty to an aggravated felony or the probability

of automatic deportation. In his supporting affidavit, defendant states: "At no

time either before I entered the plea or at the time of the plea were the

immigration consequences of the plea explained to me or was I told to speak to

an attorney familiar with immigration law or given an opportunity to do so." He

further states he was not aware of the "sharp difference in the immigration

consequences of . . . accepting a three-year sentence or agreeing to a sentence

of 364 days." He claims he did not understand a three-year sentence exposed

him "to almost certain removal while a sentence of less than one year . . . would

have no immigration consequences."

      Defendant also addressed his responses to questions on the plea form:

                   My response to these questions must be evaluated
            in light of my limited education and my mental
            capacity. It was never explained to me that the length
            of my sentence rather than the crime would affect my
            immigration status. In fact on the Plea Form which is
            attached as Exhibit D, several of the questions relating
            to the immigration consequences of the plea are not
            answered or overwritten. For example there is no reply
            to the question "Do you understand that if you are not
            a citizen of the United States, this guilty plea may result

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            in your removal from the United States and/or stop you
            from being able to legally enter or re-enter the United
            States." As to the question 17[e] as to whether or not I
            would like to speak to immigration attorney about the
            consequences of the plea there is no response as the
            circled "No" is crossed out.

      Defendant contends he never received advice from an attorney familiar

with the nuances of immigration law and the different sentencing alternatives

available. He also emphasizes that the plea hearing judge did not tell him that

he should speak to an immigration attorney before accepting the plea or that his

deportation was virtually assured while a lesser sentence would have no

immigration consequences.

      Following oral argument, the PCR court issued a written opinion denying

defendant's petition. This appeal followed.

      Defendant argues:

            POINT I
            THE TRIAL COURT ERRED IN DENYING
            DEFENDANT'S     PETITION   FOR     POST
            CONVICTION RELIEF WITHOUT AFFORDING
            HIM AN EVIDENTIARY HEARING AS HE WAS
            ENTITLED TO WITHDRAW HIS GUILTY PLEA ON
            THE BASIS OF RECEIVING INEFFECTIVE
            COUNSEL REGARDING THE IMMIGRATION
            CONSEQUENCES ARISING FROM HIS PLEA
            AGREEMENT.




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            POINT II
            IN ADDITION TO VACATING THE GUILTY PLEA,
            IN THE ALTERNATIVE, THE SENTENCE SHOULD
            BE MODIFIED TO THREE HUNDRED SIXTY
            FOUR (364) DAYS AS THE TRIAL COURT ERRED
            BY NOT RULING ON THE MOTION TO RE
            SENTENCE.

                                       II.

      Under the Sixth Amendment of the United States Constitution, a criminal

defendant is guaranteed the effective assistance of legal counsel in his defense.

Strickland v. Washington,  466 U.S. 668, 687 (1984). To establish a deprivation

of that right, a convicted defendant must satisfy the two-part test enunciated in

Strickland by demonstrating that: (1) counsel's performance was deficient, and

(2) the deficient performance actually prejudiced the accused's defense. Id. at

687; accord State v. Fritz,  105 N.J. 42, 58 (1987) (adopting the Strickland two-

part test in New Jersey).

      When a guilty plea is involved, a defendant must satisfy two criteria to set

aside the plea based on ineffective assistance of counsel. State v. Nunez-Valdez,

 200 N.J. 129, 139 (2009). The defendant must demonstrate 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


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insisted on going to trial.'"   Ibid. (alteration in original) (quoting State v.

DiFrisco,  137 N.J. 434, 457 (1994)).

      The "defendant satisfie[s] the prejudice prong of the ineffective-

assistance-of-counsel analysis by showing that he would not have pled guilty

but for inaccurate information from counsel concerning the deportation

consequences of his plea." Nunez-Valdez,  200 N.J. at 143. Counsel's duty is

not limited to avoiding false or misleading information. The prejudice prong is

also satisfied if counsel fails to inform a defendant entering a guilty plea of the

relevant law pertaining to mandatory deportation. Padilla v. Kentucky,  559 U.S. 356, 369 (2010).2

      If "the law is not succinct and straightforward," then counsel "need do no

more than advise a noncitizen client that pending criminal charges may carry a

risk of adverse immigration consequences." Ibid. "However, where the 'terms

of the relevant immigration statute are succinct, clear and explicit in defining

the removal consequence,' then an attorney is obliged to be 'equally clear.'"

State v. Blake,  444 N.J. Super. 285, 295 (App. Div. 2016) (quoting Padilla,  559 U.S. at 368-69). Consequently, "an attorney's failure to advise a noncitizen


2
   The PCR court erred by not applying the standard adopted in Padilla even
though the plea hearing occurred several years after the decision in Padilla was
issued.
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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,  559 U.S.

at 369); see also State v. Gaitan,  209 N.J. 339, 380, (2012) (noting criminal

defense counsel must "point out to a noncitizen client that he or she is pleading

to a mandatorily removable offense"). Counsel must also instruct clients to seek

immigration counseling. Gaitan,  209 N.J. at 381.

      Here, defendant pleaded guilty to second-degree robbery and was

sentenced to a three-year prison term. The immigration consequences of this

aggravated felony conviction mandate removal.           Because the deportation

consequences are truly clear, defendant's attorney was obliged to provide advice

that was equally clear. Other than defendant's affidavit, the record before us

does not indicate what, if any, advice counsel gave defendant regarding the

mandatory deportation consequences of his plea, or whether counsel instructed

defendant to seek immigration counseling.

      Although we recognize the colloquy between the court and defendant at

the plea hearing briefly addressed the immigration consequences of his plea, the

colloquy was not a sufficient substitute for appropriate advice from defendant's




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counsel, especially given his mental health issues, alleged diminished mental

capacity, limited education, and need for an interpreter.

      Thus, an evidentiary hearing is necessary to determine: (1) the advice

given by defense counsel, or the lack thereof, regarding the immigration

consequences of the plea; (2) whether any potential misadvice was clarified by

the exchange with the court during the plea colloquy, such that defendant

understood the immigration consequences of his plea; and (3) whether counsel

instructed defendant to seek immigration counseling. Accordingly, we reverse

and remand for an evidentiary hearing.

      Following the evidentiary hearing, the Law Division judge shall make

findings and conclusions regarding each of these issues and determine if counsel

was ineffective.

      In light of our ruling, we do not reach Point II regarding the denial of

defendant's application to modify his sentence to 364 days.

      Reversed and remanded for an evidentiary hearing. We do not retain

jurisdiction.




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