Opinion
DOCKET NO. A-5361-13T4
12-29-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHAN W. CASTRO, a/k/a GERZON LEIVA, Defendant-Appellant.
Lora B. Glick argued the cause for appellant. James L. McConnell, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. McConnell, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Currier. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-04-0238. Lora B. Glick argued the cause for appellant. James L. McConnell, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. McConnell, on the brief). PER CURIAM
Defendant Johan Castro appeals the June 5, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On February 6, 2006, when Castro was stopped by a police officer in the course of driving a truck for his job, he presented a fraudulent driver's license. He was issued a summons charging him with the following offenses: driving while suspended, N.J.S.A. 39:3-40; driving with an expired driver's license, N.J.S.A. 39:3-10(a); operating a commercial vehicle without a commercial license, N.J.S.A. 39:10-18; being an unlicensed driver, N.J.S.A. 39:3-10(b), and other violations not pertinent to our review.
In April 2006, the Somerset County Grand Jury indicted Castro with third-degree knowingly exhibiting, displaying or uttering a false document which purports to be a driver's license, N.J.S.A. 2C:2-2.1(c) (count one). He applied for pre-trial intervention, pursuant to N.J.S.A. 2C:43-12(a) to (g) (PTI), which was denied by the prosecutor. Castro, thereafter, pled guilty to count one of the indictment and the municipal charge of being an unlicensed driver, with the remaining municipal charges being dismissed. He was sentenced to one year of probation, community service and the applicable fees. Castro did not appeal his conviction or sentence.
A PCR petition was filed on July 1, 2013. Castro asserted that his trial counsel was ineffective for providing misleading and incorrect information to him regarding the deportation consequences of his plea and for failing to appeal the denial of his entry into the PTI program. After hearing oral argument on Castro's petition, the trial judge denied relief in a comprehensive written decision on January 13, 2014. Although permitting the relaxation of Rule 3:22-12(a) in order to reach the substantive issues, the judge determined that Castro had failed to make the requisite showing to be entitled to an evidentiary hearing. He further found that Castro had failed to prove that he was denied the effective assistance of counsel. This appeal followed.
He also asserted excusable neglect for the untimely filing of his PCR petition, requesting the relaxation of the procedural bar under Rule 3:22-12. --------
Castro raises the following issues on appeal:
POINT I: BECAUSE DEFENDANT PRESENTED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL IN HIS PCR PETITION, THE COURT BELOW ERRED IN DENYING HIS REQUEST FOR AN EVIDENTIARY HEARING AND ITS RULING SHOULD BE REVERSED.
A. Defendant's Counsel Was Ineffective, in Violation of Defendant's Sixth Amendment Right to Counsel, for Failing to Appeal the Denial of His Entry into PTI.
B. Defendant's Counsel Was Ineffective, in Violation of Defendant's Sixth Amendment Right to Counsel, for Providing Misleading and Incorrect Information to Him Regarding the
Deportation Consequences of his Plea.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984 ). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "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 court reviewing a PCR petition based on ineffective assistance of counsel claims has the discretion to grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the requested relief. Preciose, supra, 129 N.J. at 462. The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
When determining whether to grant an evidentiary hearing, the PCR court must consider the facts in the light most favorable to the defendant to determine if a defendant has established a prima facie claim. Preciose, supra, 129 N.J. at 462-63. It follows that a "defendant must allege specific facts and evidence supporting his allegations," State v. Porter, 216 N.J. 343, 355 (2013), and "do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. PCR petitions must be "accompanied by an affidavit or certification by defendant, or by others, setting forth with particularity the facts that he wished to present." State v. Jones, 219 N.J. 298, 312 (2014).
We first address whether trial counsel's actions were deficient in failing to appeal the denial of entry into PTI. Castro argues that the PCR judge failed to evaluate and, thereafter, reject the factors given by the prosecutor as the basis for the denial of PTI. That, however, is not the PCR judge's task. The PCR judge must determine if counsel's performance fell below an objective standard of reasonableness in not appealing the denial into PTI. In his analysis, the judge properly noted the "severely limited" scope of review. State v. Negran, 178 N.J. 73, 82 (2003). We note that deciding whether to permit diversion to PTI "is a quintessentially prosecutorial function," State v. Wallace, 146 N.J. 576, 582 (1996), "[f]irst, because it is the fundamental responsibility of the prosecutor to decide whom to prosecute, and second, because it is a primary purpose of PTI to augment, not diminish, a prosecutor's options." State v. Nwobu, 139 N.J. 236, 246 (1995) (citation omitted). Accordingly, courts give prosecutors "extreme deference," ibid. (citation omitted), and "wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial." Negran, supra, 178 N.J. at 82. "In order to overturn a prosecutor's rejection, a defendant must 'clearly and convincingly establish that the prosecutor's decision constitutes a patent and gross abuse of discretion.'" State v. Watkins, 193 N.J. 507, 520 (2008) (citations omitted). "A patent and gross abuse of discretion is defined as a decision that 'has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'" Ibid. (citations omitted). Given the defendant's "heavy burden," ibid., "a prosecutor's decision to reject a PTI applicant 'will rarely be overturned.'" State v. Brooks, 175 N.J. 215, 225 (2002) (citations omitted).
In applying these standards, the PCR judge concluded:
Due to the enhanced deference accorded to the prosecutor, and the limited scope of judicial review, the Court is hard pressed to find that counsel was unreasonably deficient by not appealing the [rejection into] PTI. The legal standard needed to overcome in appealing a rejection from PTI is so high that counsel was well within the wider range of reasonable professional conduct when he decided not to file an appeal on behalf of the Defendant.We find no error in the judge's conclusion that defendant failed to satisfy the first prong of Strickland with regard to the denial of PTI. As the prosecutor had provided a statement of reasons for the denial pursuant to Rule 3:28, it was a high hurdle for defendant to overcome on an appeal.
We similarly find the PCR judge's analysis of Strickland to be well-reasoned as to Castro's argument regarding his guilty plea and its deportation consequences. Castro contends that he asked trial counsel whether pleading guilty would affect his ability to remain in the United States, to which counsel responded that there "may" be immigration consequences. He asserts that counsel repeatedly told him "everything will be okay." As the PCR judge noted, the state of the law at the time of Castro's guilty plea in 2006 required counsel only to refrain from providing false or affirmatively misleading advice about the deportation consequences of a guilty plea. State v. Nunez-Valdez, 200 N.J. 129 (2009); see also State v. Gaitan, 209 N.J. 339 (2012) (holding that the decision in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L.Ed. 2d 284 (2010) which provides that counsel has an affirmative obligation to inform a client when a plea carries a risk of deportation is to be applied prospectively only). The judge stated: "At the time of the Defendant's plea agreement, an absence of advice regarding deportation consequences of a plea agreement did not violate the law or constitute unreasonableness on the part of Defendant's counsel." The judge noted that when Castro was apprised at the time of his guilty plea of the possibility that he could be deported as a result of the plea, he responded affirmatively.
We find that the judge properly analyzed the two prong standard articulated in Strickland and his opinion was factually supported.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION