STATE OF NEW JERSEY v. JUAN ALFARO (2013)

Defendant Juan Alfaro appeals from an order of Law Division denying his petition for post-conviction relief (PCR).  We affirm.

Defendant is a native of Guatemala who came to the United States in 1989.   He is not a United States citizen.   On December 7, 2007, in exchange for the State's sentencing recommendation of an eight-year prison term with no period of parole ineligibility, defendant pled guilty to an indictment charging him with two counts of third-degree distribution of cocaine, N.J.S.A. 2C:35–5(a)(1) and N.J.S.A. 2C:35–5(b)(3);  one count of second-degree distribution of cocaine, N.J.S.A. 2C:35–5(a)(1) and N.J.S.A. 2C:35–5(b)(2);  and one count of second-degree conspiracy to distribute cocaine, N.J.S.A. 2C:5–2, N.J.S.A. 2C:35–5(a)(1) and N.J.S.A. 2C:35–5(b)(2).   At the plea hearing, defendant admitted that he conspired with a cohort to sell cocaine on three occasions, the latest of which on March 16, 2007, involved the sale of over one-half ounce of cocaine to a third party, with defendant receiving $800 for his part in the transaction.

The judge at the plea hearing did not question defendant about the possibility that he might be deported.   The risk of deportation, however, was addressed in a written plea form signed by defendant as part of the record of his guilty plea.   Question 17 on the plea form 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?”   Defendant answered “yes.”   In open court, defendant acknowledged that he had discussed the questions and answers on the plea form with his attorney and had enough time to do so, that the answers were accurate, and that he had no questions to ask the judge about the contents of the plea form.

On February 8, 2008, the judge sentenced defendant to an aggregate seven years flat, reducing the bargained-for eight-year term recommended by the State.   Defendant did not file a direct appeal.

Facing deportation by federal authorities,¹ defendant filed the instant PCR petition in June 2010, alleging ineffective assistance of counsel for failing to, among other things, advise him that he would be deported as a result of his guilty plea.   Defendant also sought to withdraw his guilty plea.   The PCR judge conducted an evidentiary hearing to address defendant's claim of ineffective assistance of counsel, at which defendant and his plea counsel testified.   Plea counsel, a certified criminal defense attorney who predominantly represents Spanish-speaking clients, testified that it has been his regular practice to advise foreign nationals such as defendant that they shall be deported, rather than may be deported, when they have committed crimes of this nature.   He specifically recalled rendering this advice at the jail with defendant before the plea was entered.   In his own testimony, defendant denied meeting with counsel at the jail and claimed that he had never been told by his attorney that deportation would be mandatory for this sort of offense.

At the close of evidence, the PCR judge denied defendant's petition, concluding:

This court finds that [plea counsel] met with [defendant] multiple times to discuss discovery and trial strategy, both in jail and before court appearances.   This court also finds [plea counsel] discussed the deportation consequences with [defendant].

[Plea counsel's] testimony was credible.  [Defendant] and [plea counsel], as trial strategy, made a strategic decision to have [defendant] plead guilty and reduce his sentence exposure in a negotiated plea agreement.  [Defendant] based his decision on multiple factors.   First, the State had overwhelming evidence, including drug purchases by an undercover officer.   Second, his co-defendant pled guilty.   Third, the State had a practice of increasing the plea offer if a defendant files any motions.   Finally, [defendant] had a previous experience in the Municipal court resulting in an unfavorable result.

[Plea counsel] discussed the deportation consequences with [defendant].   He went over the plea form, including Question # 17 where he specifically told [defendant] that he “shall be” deported.   Moreover, this court finds credible his assertion that [defendant] was interested in a favorable plea and would deal with the deportation consequences at a later date.

This court finds that [defendant's] testimony was not credible.

On appeal, defendant raises the following issues:

I.  THE FAILURE OF TRIAL COUNSEL TO ADIVSE DEFENDANT THAT AS A RESULT OF HIS PLEA AGREEMENT, HE WOULD BE DEPORTED DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

II. THE FAILURE OF TRIAL COUNSEL AND THE TRIAL COURT TO EXPLAIN THE IMMIGRATION CONSEQUENCES OF DEFENDANT'S GUILTY PLEA CAUSED DEFENDANT TO LACK KNOWLEDGE AND UNDERSTANDING OF THE PLEA AGREEMENT, RENDERING HIS PLEA DEFECTIVE, BECAUSE HE NEVER KNOWINGLY WAIVED HIS RIGHT TO A JURY TRIAL.

We deem these issues of insufficient merit to warrant extended discussion in this opinion, Rule 2:11–3(e)(2), and affirm substantially for the reasons stated by Judge Borkowski in her written decision of April 13, 2011.   We add only the following comments.

It is axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency, he would not have pled guilty and would have insisted on going to trial.   See Hill v. Lockhart, 474 U.S. 52, 56–59, 106 S.Ct. 366, 369–70, 88 L. Ed.2d 203, 208–10 (1985);  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984);  State v. DiFrisco, 137 N.J. 434, 456–57 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed.2d 873 (1996);  State v. Fritz, 105 N.J. 42, 58 (1987).   We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

At the time of defendant's 2007 guilty plea, it was not necessary to advise a defendant of the collateral consequences of that plea, including the possibility of deportation.  State v. Heitzman, 107 N.J. 603, 604 (1987);  State v. Wilkerson, 321 N.J.Super. 219, 224–26 (App.Div.), certif. denied, 162 N.J. 128 (1999);  State v. Garcia, 320 N.J.Super. 332, 336–37 (App.Div.1999);  State v. Chung, 210 N.J.Super. 427, 431 (App.Div.1986);  State v. Reid, 148 N.J.Super. 263, 266 (App.Div.), certif. denied, 75 N.J. 520 (1977).

In State v. Nunez–Valdez, 200 N.J. 129, 143 (2009), our State Supreme 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.”   The Court's focus was on “false or misleading information” from counsel as establishing the violation of the defendant's constitutional rights.  Id. at 138–40;  see also State v. Brewster, 429 N.J.Super. 387, 392 (App.Div.2013).

Later, in Padilla v. Kentucky, 559 U.S. 356, _, 130 S.Ct. 1473, 1483, 1486, 176 L. Ed.2d 284, 295–96, 299 (2010), the United States Supreme Court held that counsel's failure to give any advice whatsoever about deportation might also be deficient performance in violation of a defendant's constitutional rights.   The Court also added that counsel's constitutional duty is not limited to avoiding incorrect advice.   Counsel has an affirmative duty to inform a defendant when a guilty plea will result in deportation, at least where the relevant law pertaining to mandatory deportation is “succinct, clear, and explicit.”  Id. at _, 130 S.Ct. at 1483, 176 L. Ed.2d at 295.

In State v. Gaitan, 209 N.J. 339 (2012), cert. denied, _ U.S. 1454, 133 S.Ct. 1454, 185 L. Ed.2d 361 (2013), our Supreme Court decided that Padilla does not apply retroactively to convictions beyond direct appeal.   The Court stated:  “[W]ell prior to our holding in Nunez–Valdez, this Court had taken the position that a defendant's guilty plea is not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea.”  Id. at 361.   The Court then held that Padilla 's imposition of an affirmative duty to advise on deportation consequences is a “new” constitutional rule that does not apply to defendants who have exhausted their direct appeals.  Id. at 373.   But the Court also held that its own 2009 decision in Nunez–Valdez, in contrast to Padilla, was not a new rule of constitutional law.  Id. at 373–74.   Therefore, the Court's holding in Nunez–Valdez concerning claims of counsel's wrong advice about deportation consequences is applicable on collateral review to convictions that became final before that case was decided.  Id. at 375.

Subsequently, the United States Supreme Court in Chaidez v. United States, _ U.S. _, _, 133 S.Ct. 1103, 1105, 185 L. Ed.2d 149, 154 (2013), ruled that Padilla is not retroactively applicable to convictions beyond direct review.

Thus, even though Padilla 's “new” constitutional rule does not apply to defendant's 2008 conviction, his trial counsel, as found by the PCR judge,² correctly advised defendant of the mandatory deportation consequences of his guilty plea in accordance with Padilla 's newly announced directive.   Far from being ineffective, trial counsel here presciently anticipated the Padilla ruling and conformed his practice accordingly, providing defendant in this instance with the proper legal advice necessary to make a fully informed and voluntary plea decision.

Having failed to demonstrate any deficiency in attorney performance, defendant cannot demonstrate any resultant prejudice.   As a result, his PCR petition was properly denied.   Moreover, because defendant knew at the time he entered his guilty plea of the mandatory deportation consequence, he has also failed to show that his guilty plea was other than knowingly and voluntarily entered.   Accordingly, there is no basis in this record to allow withdrawal of that plea.

Affirmed.

FOOTNOTES

FN1. On May 8, 2008, an Immigration and Customs Enforcement (I.C.E.) detainer was placed on defendant and as of the time of the appellate briefs, he was in the custody of Homeland Security at the Essex County Jail, pending his deportation proceeding..  FN1. On May 8, 2008, an Immigration and Customs Enforcement (I.C.E.) detainer was placed on defendant and as of the time of the appellate briefs, he was in the custody of Homeland Security at the Essex County Jail, pending his deportation proceeding.

FN2. We, of course, defer to the credibility findings of the PCR judge, State v. Locurto, 157 N.J. 463, 471 (1999), and are further satisfied that the court's factual determinations are supported by substantial credible evidence in the record.  State v. Johnson, 42 N.J. 146, 161–62 (1964)..  FN2. We, of course, defer to the credibility findings of the PCR judge, State v. Locurto, 157 N.J. 463, 471 (1999), and are further satisfied that the court's factual determinations are supported by substantial credible evidence in the record.  State v. Johnson, 42 N.J. 146, 161–62 (1964).

PER CURIAM