STATE OF NEW JERSEY v. CANDELARIO DOMINGUEZ (2013)

Defendant Candelario Dominguez appeals from the May 12, 2011 Law Division order denying him post-conviction relief (PCR) based on a claim of ineffective assistance of counsel.   We affirm.

On November 14, 2008, defendant entered a guilty plea to a single-count accusation charging him with third-degree distribution of cocaine within 1000 feet of school property, N.J.S.A. 2C:35–7.   On January 16, 2009, he was sentenced in accordance with the agreement to a three-year state prison term concurrent to a sentence he was then serving.

During the plea colloquy, defendant claimed that while drunk he “gave ․ away” cocaine within 1000 feet of school property to an undercover agent.   He added that he was “just doing a favor” for the undercover agent.   When asked if he was a citizen of the United States, defendant said, “[n]o.”   He acknowledged that as a result of the entry of the guilty plea, that he could be deported:

Q Are you a citizen of the United States?

A No.

Q You should understand by pleading guilty to this charge in this court federal authorities can, if they want to, take – may take action against you in the federal court.

A Yes.

Q That is not my choice, that's up to the federal immigration people.   If they decide to take action then [sic] can take any action they want in the court and you would have to answer their actions.   They could try to deport you if that is what they want based on your plea of guilty here.   Do you understand that?

A Yes.

Q That's not up to me, it's up to the federal people as to what kind of action, if any, they take.   Do you understand that?

A Yes.

Q Do you have any further questions you'd like to ask me before I accept your plea?

A No, it's okay.

The form defendant signed as part of the process resulting in the entry of his guilty plea contained the following:

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?

Defendant responded as follows:

[YES ] [NO] [N/A]

On December 16, 2010, defendant received a deportation and removal notice from the United States Department of Immigration and Customs Enforcement.   Defendant did not file a direct appeal of his conviction.   He filed a petition for PCR on January 10, 2011.   The PCR judge rendered his decision denying defendant's application the same day oral argument was conducted, May 12, 2011.

Having found that defendant was made aware of the possibility of deportation, the PCR judge discussed the seminal cases on the subject, Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L. Ed.2d 284 (2010), State v. Gaitan, 209 N.J. 339 (2012), cert. denied, _ U.S. 1454, 133 S.Ct. 1454, 185 L. Ed.2d 361 (2013), and State v. Nuñez–Valdéz, 200 N.J. 129 (2009).   He concluded that defendant was aware of the potential of deportation which was “correct advice.”   The judge noted that State v. Gaitan held that Padilla 's holding was not to be applied retroactively, although at the time his analysis relied upon the Appellate Division decision in that matter issued one year prior to the Supreme Court decision.   See State v. Gaitan, 419 N.J.Super.   365 (App.Div.2011).   The PCR judge also noted that the State's plea offer was quite favorable to defendant given the State's substantial proofs.   Defendant, who was extended-term eligible, could have received ten years in prison subject to a period of parole ineligibility of up to one-half that term.

The judge observed that although defendant contended his counsel was ineffective because he failed to investigate the defenses of intoxication and entrapment, nothing in the police reports indicated defendant was intoxicated.   Defendant sold crack cocaine to an undercover officer on two separate occasions, and on neither occasion was he observed to have any difficulty in walking or gaining access to the locked building where he kept his drug supply.   Defendant's claim required him to have been intoxicated on two occasions conflicting with not only the information in the police reports but defendant's own statement during his presentence report when he said he drinks one can of beer on the weekends and not at all during the weekdays.   Moreover, defendant did not mention any alleged intoxication in his pro se certification in support of his PCR petition.

As far as the defense of entrapment, the court recounted that the undercover officers initiated the first sale by merely saying “what's up” to defendant.   To complete the second sale, defendant called a fellow drug distributor to obtain the drugs, and walked to a separate location to retrieve them.   He did not behave like a person who was being inappropriately encouraged to sell drugs on either occasion.

Defendant states as points of error on appeal:

POINT I

THE ORDER DENYING POST–CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S GUILTY PLEA VACATED BECAUSE THE FAILURE TO INFORM DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS PLEA, IN CONJUNCTION WITH THE CHANGE IN IMMIGRATION LAW ON THE FEDERAL LEVEL, VIOLATED DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS BECAUSE OF ITS EX POST FACTO EFFECTS.

POINT II

THE ORDER DENYING POST–CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S GUILTY PLEA VACATED BECAUSE TRIAL COUNSEL'S FAILURE TO ADVISE DEFENDANT OF THE DEPORTATION CONSEQUENCES OF HIS PLEA DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE COURT MISAPPLIED ITS DISCRETION IN DENYING POST–CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.

POINT IV

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST–CONVICTION RELIEF.

(A)

TRIAL COUNSEL'S FAILURE TO CONDUCT AN ADEQUATE INVESTIGATION, AND TRIAL COUNSEL'S FAILURE TO PROPERLY ADVISE DEFENDANT OF THE DEFENSES OF INTOXICATION AND ENTRAPMENT, CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL

A defendant must establish two elements to prove ineffective assistance of counsel:  first, that counsel's performance was deficient.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984).   An attorney's performance is deficient when he or she makes “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”  Ibid. Second, a defendant must demonstrate that counsel's deficiency so prejudiced the defense that there is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  Id. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.   A reasonable probability is one that undermines confidence in the outcome.  Ibid. New Jersey has adopted the Strickland test.   See State v. Fritz, 105 N.J. 42, 58 (1987).

There is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]”  Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L. Ed.2d at 694.   To rebut this presumption, a defendant must prove counsel's actions did not amount to “ ‘sound trial strategy.’ ”  Id. at 689, 104 S.Ct. at 2065, 80 L. Ed.2d at 695 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).  “[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel.”  State v. Cummings, 321 N.J.Super. 154, 170 (App.Div.), certif. denied, 162 N.J. 199 (1999).

“[W]hen counsel provides false or affirmatively misleading advice about the deportation consequences of a guilty plea, and the defendant demonstrates that he would not have pled guilty if he had been provided with accurate information, an ineffective assistance of counsel claim has been established.”  Gaitan, supra, 209 N.J. at 351 (citing Nuñez–Valdéz, supra, 200 N.J. at 131).

On November 14, 2008, when defendant entered his guilty plea, trial counsel was not required to inform defendant that he faced a virtual certainty of deportation as a result of the conviction.   See Chaidez v. United States, _ U.S. _, 133 S.Ct. 1103, 1113, 185 L. Ed.2d 149, 162 (2013);  Gaitan, supra, 209 N.J. at 380.   Trial counsel was only required to avoid affirmatively misinforming a defendant regarding immigration consequences resulting from a plea.  Chaidez, supra, _ U.S. at _, 133 S.Ct. at 1113, 185 L. Ed.2d at 162 (holding that obligation to provide advice on the immigration consequences of a plea established in Padilla, supra, 559 U.S. at _, 130 S.Ct. at 1487, 176 L. Ed.2d at 299, was a new rule that did not apply retroactively);  Gaitan, supra, 209 N.J. at 373.

Defendant attempts to make an end-run around Gaitan by asserting his due process rights were violated because the deportation consequences were not explained to him and the impact immigration law had on his status was equivalent to an ex post facto law.   That argument, however, sidesteps the real issue under Strickland and its progeny.   The question is whether trial counsel, in 2008, was ineffective by virtue of his failure to advise his client that deportation was a virtual certainty as opposed to merely a possibility.   And to that, the answer is in the negative.   Defense counsel, the judge, and the plea form put defendant on notice that his guilty plea resulted in the possibility of deportation — all that was required at the time.   Counsel's advice therefore fell within the parameters of competent assistance.   Furthermore, given that the two drug sales in question were to an undercover agent, even if we were to agree that counsel was remiss, defendant cannot convincingly demonstrate that there was a reasonable probability that the outcome of the proceeding would have been different had he been advised that the possibility of deportation was an absolute certainty.   Thus defendant cannot meet the Strickland standard under either his first or second point.

Defendant's argument that his counsel was deficient because he did not investigate the defenses of intoxication and entrapment is so lacking in merit as to not warrant discussion in a written opinion.   R. 2:11–3(e)(2).   In light of the fact defendant has not established a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required.   R. 3:22–10(b);  State v. Preciose, 129 N.J. 451, 462 (1992).

Affirmed.

PER CURIAM