STATE OF NEW JERSEY v. YURI FRANCISCO SOTO

NOT FOR PUBLICATION WITHOUT THE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-4466-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

YURI FRANCISCO SOTO,

     Defendant-Appellant.
____________________________

                    Submitted October 19, 2020 – Decided December 17, 2020

                    Before Judges Hoffman and Suter.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 88-06-0937.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Steven M. Gilson, Designated Counsel, on
                    the brief).

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Lillian Kayed, Assistant Prosecutor, on the
                    brief).

PER CURIAM
      Defendant Yuri Soto appeals from the March 27, 2019 Law Division order

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

hearing. We vacate the order under review and remand for an evidentiary

hearing.

                                       I.

      On June 10, 1988, a Hudson County grand jury returned an indictment

charging defendant with fourth-degree distribution of a controlled dangerous

substance, less than one ounce of marijuana,  N.J.S.A. 2C:35-5a(l) and 2C:35-

5b(12) (count one); fourth-degree possession with intent to distribute a

controlled dangerous substance, less than twenty-five grams of marijuana,

within 1000 feet of a school,  N.J.S.A. 2C:35-5a(l) and 2C:35-7 (count two);

third-degree aggravated assault on a police officer,  N.J.S.A. 2C:12-lb(5) (count

three); and fourth-degree resisting arrest,  N.J.S.A. 2C:29-2 (count four).

      Defendant's plea counsel, Rolando Torres, negotiated a plea agreement

whereby defendant would receive a three-year term of probation, conditioned

upon him serving concurrent 180-day terms in the Hudson County Jail for two

of the four charges, with the court dismissing the other two charges. Mr. Torres

advised defendant to accept the agreement and assured him that if he "stayed out

of trouble," he need not worry about deportation for this conviction.


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      On November 3, 1988, defendant pled guilty to counts two and four of the

indictment. On March 2, 1989, the court sentenced defendant to a three-year

term of probation, conditioned upon him serving concurrent 180-day jail terms,

consistent with plea agreement. Defendant served his sentence and did not file

an appeal.

      In 2011, defendant traveled to El Salvador, his birth country, upon

learning of his father's death. Defendant had not been arrested since the 1988

incident. Upon his reentry to the United States, immigration authorities detained

defendant and informed him that he could face deportation due to his 1989

criminal conviction. After sixty days in detention, the immigration authorities

released defendant on bond.

      After his release, defendant obtained work authorization and worked

steadily. He has three grown children and one grandchild, all United States

citizens.

      In 2018, Gustavo Gutierrez, an attorney with the American Friends

Service Committee (AFSC), advised defendant to petition for PCR.

Accordingly, defendant filed a pro se petition for PCR on July 13, 2018.

Defendant claimed his plea counsel was ineffective for failing to properly advise




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him of the immigration consequences of his plea; as a result, his plea should be

vacated.

      On February 19, 2019, the PCR judge heard oral argument on defendant's

PCR petition. Without addressing the merits of defendant's claims, the PCR

judge denied relief, finding the petition time-barred, pursuant to Rule 3:22-

12(a)(1). The PCR judge also denied defendant's motion for reconsideration on

March 27, 2019.

      This appeal followed, with defendant raising the following argument:

            DEFENDANT'S PCR PETITION SHOULD NOT
            HAVE BEEN TIME-BARRED; THEREFORE, THIS
            MATTER MUST BE REMANDED FOR THE PCR
            COURT TO ADDRESS THE MERITS OF
            DEFENDANT'S CLAIMS.

                                       II.

      PCR "'is New Jersey's analogue to the federal writ of habeas corpus.'"

State v. Goodwin,  173 N.J. 583, 593 (2002) (quoting State v. Preciose,  129 N.J.
 451, 459 (1992)). Under Rule 3:22-2, defendants are permitted to collaterally

attack a conviction based upon a claim of ineffective assistance of counsel

within five years of the conviction. See R. 3:22-12(a)(1); see also Strickland v.

Washington,  466 U.S. 668, 687 (1984); State v. Fritz,  105 N.J. 42, 58 (1987).




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      To establish a claim of ineffective assistance of counsel, a defendant must

satisfy the two-part Strickland test: (1) "counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed the defendant by the
 Sixth Amendment[,]" and (2) "the deficient performance prejudiced the

defense." Strickland,  466 U.S.  at 687 (quoting U.S. Const. amend. VI); Fritz,

 105 N.J. at 58-59 (adopting the Strickland two-part test in New Jersey).

      Rule 3:22-10(b) provides that a defendant is entitled to an evidentiary

hearing on a PCR petition if he or she establishes a prima facie case in support

of PCR. To establish a prima facie case, a defendant must demonstrate a

"reasonable likelihood of succeeding under the test set forth in Strickland."

Preciose,  129 N.J. at 463. Moreover, the judge deciding a PCR claim should

conduct an evidentiary hearing when "material issues of disputed fact . . . cannot

be resolved by reference to the existing record," and "an evidentiary hearing is

necessary to resolve the claims for relief." State v. Porter,  216 N.J. 343, 354

(2013) (quoting R. 3:22-10(b)); see also Pressler & Verniero, Current N.J. Court

Rules, cmt. 2 on R. 3:22-10 (2021) (noting that a PCR evidentiary hearing is

required if there is a dispute of fact regarding matters which are not on the

record).




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      Rule 3:22-12(a)(1) precludes PCR petitions filed more than five years

after entry of a judgment of conviction unless the delay was "due to defendant's

excusable neglect and . . . there is a reasonable probability that if the defendant's

factual assertions were found the be true enforcement of the time bar would

result in a fundamental injustice." In addition, "[t]he time bar should be relaxed

only 'under exceptional circumstances' because '[as] time passes, justice

becomes more elusive and the necessity for preserving finality and certainty of

judgments increases.'" Goodwin,  173 N.J. at 594 (quoting State v. Afanador,

 151 N.J. 41, 52 (1997)).

      To establish "excusable neglect," a defendant must demonstrate "more

than simply . . . a plausible explanation for a failure to file a timely PCR

petition." State v. Norman,  405 N.J. Super. 149, 159 (App. Div. 2009). Factors

to be considered include "the extent and cause of the delay, the prejudice to the

State, and the importance of the [defendant's] claim in determining whether

there has been an 'injustice' sufficient to relax the time limits." Afanador,  151 N.J. at 52.

      The State emphasizes that defendant filed his PCR petition "decades after

his judgment of conviction was entered on March 22, 1989." Nevertheless,

defendant contends that his delay was excusable because he was affirmatively


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misled concerning the immigration consequences of his plea. While defendant

was detained in 2011, he was released on bond within two months and thereafter

received work authorization. He has worked steadily since his release and has

not been arrested since his 1989 conviction. Importantly, he did not understand

he received ineffective assistance of counsel that could be addressed by PCR

until Mr. Gutierrez advised him in 2018.

      Based on the record, we hold that defendant raised sufficient contentions

to warrant an evidentiary hearing.       While defendant's certification lacks

specificity, the current record raises sufficient questions to warrant at least a

limited evidentiary hearing. In a supporting certification, defendant explained

that he "first heard of . . . PCR" in early 2018, when Mr. Gutierrez started

representing him. He filed his petition soon thereafter, in July 2018.

      If defendant acted within a reasonable time after becoming aware of the

potential to address the misleading, inaccurate advice he received from plea

counsel, he may be able to establish excusable neglect. The record in this case

does not demonstrate that defendant was ever affirmatively told that his plea

could result in his removal, apart from the reference in the plea form on question

sixteen. The form at that time, however, included only one short question that

referenced citizenship.    Since then, the plea form has been significantly


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expanded. Just as importantly, there is nothing in the current record to reflect

that defendant himself actually focused on and answered question sixteen as

opposed to his plea counsel filling that form out with him.

      Our Supreme Court has addressed the standard of performance an attorney

owes a client whose conviction may affect his or her immigration status. State

v. Gaitan,  209 N.J. 339, 373-74 (2012). In 2009, the Court held that a defendant

can show ineffective assistance of counsel by proving that his guilty plea

resulted from "inaccurate information from counsel concerning the deportation

consequences of his plea." State v. Nuñez-Valdéz,  200 N.J. 129, 143 (2009). In

2010, the United States Supreme Court held that counsel's duties include not

only avoiding "false or misleading information," but also the affirmative duty to

inform a defendant entering a guilty plea with respect to the relevant mandatory

deportation law if it is "succinct, clear, and explicit." Padilla v. Kentucky,  559 U.S. 356, 368 (2010).

      The Padilla Court held that counsel's "failure to advise a noncitizen 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). However, because Padilla "announced a new rule" and is therefore "not


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entitled to retroactive effect," for convictions entered before the decision in

Padilla, "Nuñez-Valdéz still governs the standard of attorney performance in

New Jersey in ineffective assistance of counsel claims on collateral review."

State v. Santos,  210 N.J. 129, 143 (2012) (citing Gaitan,  209 N.J. 339, 373-74

(2012)). Thus, our focus on this review is whether counsel provided affirmative

misadvise regarding the immigration consequences of a guilty plea. Ibid.

      Applying these principles, we are persuaded that defendant established a

prima facie case that plea counsel provided ineffective assistance by

misinforming him about potential deportation. Defendant certified that counsel

affirmatively advised him that "as long as [he] 'stayed out of trouble,' [he] would

not have to worry about being deported for this conviction." We are satisfied

defendant established a prima facie case that counsel "provided misleading or

false information about immigration consequences." Nuñez-Valdéz,  200 N.J. at
 142. Defendant's response to question sixteen of the plea form, indicating that

he understood that he "may be deported" because of his guilty plea, is consistent

with a fair reading of defendant's certification that he believed, due to counsel's

misadvise, he would not be deported if he "stayed out of trouble." Furthermore,

the record does not reflect that counsel or the court ever affirmatively told

defendant about potential deportation consequences apart from question sixteen.


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      Moreover, there is sufficient evidence in the record to establish a prima

facie case of prejudice, that is, but for the alleged ineffective assistance of

counsel, defendant "would not have pled guilty and would have insisted on going

to trial." State v. DiFrisco,  137 N.J. 434, 457 (1995). Specifically, defendant

certified that "[i]f [he] had known that this conviction would make [him]

deportable, [he] would not have accepted the plea agreement, but would have

taken [his] chances at trial." Defendant certified that he did not attempt to sell

any marijuana nor did he fight the police officers.          Thus, the potential

consequences of conviction after trial were not so severe as to render

implausible defendant's claim that he would have rejected the plea offer. Nuñez-

Valdéz,  200 N.J. at 142-43.

      We are not suggesting that a PCR court should engage in or entertain

speculations that are not supported by the record before it.         Nor are we

condoning a PCR petition supported by a vague certification. Nevertheless, we

remain mindful that the PCR petition represents defendant's last opportunity to

address a potential "fundamental-injustice claim[.]" See State v. Nash,  212 N.J.
 518, 540, 547 (2013).

      We also reject the State's reliance on this court's holding in State v.

Brewster,  429 N.J. Super. 387 (App. Div. 2013). In Brewster, the defendant,


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seeking to avoid removal, filed a PCR petition twelve years after his conviction.

Id. at 390. At the time of his plea, the defendant was aware of the possible

immigration consequences of a conviction and answered "yes" to question

seventeen on the plea form. Id. 391. Three years before he filed his PCR

petition, defendant consulted an immigration attorney, who advised that the

conviction "could be a problem." Id. at 399-400. Under those facts, we declined

the invitation to relax the time-bar imposed by Rule 3:22-12.

      Defendant's case is distinguishable from the facts in Brewster. Unlike the

defendant in Brewster, the record does not reflect that defendant was expressly

informed about the potential immigration consequences of his guilty plea during

his plea colloquy. Moreover, because there has been no evidentiary hearing, the

State has not presented any evidence of possible prejudice caused by the passage

of time. In short, the current record warrants an evidentiary hearing to develop

these issues. By ordering a plenary hearing, we are not expressing any view as

to the outcome of the proceeding.

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

jurisdiction.




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