Opinion
DOCKET NO. A-3643-13T4
04-27-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELSA M. MATA-BATISTA, Defendant-Appellant.
Bastarrika, Soto, Gonzalez & Somohano, attorneys for appellant (Jerard Gonzalez, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Nugent. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 12-06-884, 12-06-885, 12-06-886, 12-06-958 and 12-06-960. Bastarrika, Soto, Gonzalez & Somohano, attorneys for appellant (Jerard Gonzalez, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Elsa M. Mata-Batista, along with three co-defendants not parties to this appeal, were charged with numerous offenses set forth in five indictments. Defendant was the driver and lookout for the group, which burglarized residential homes over a period of approximately three weeks. Defendant entered into a negotiated plea agreement encompassing all charges in all indictments, which, had she been convicted following trial, could have led to a fifty-year term of imprisonment. Defendant plead guilty to: (1) Indictment No. 12-06-884 - fourth-degree receiving stolen property, N.J.S.A. 2C:20-7; (2) Indictment No. 12-06-885 - third-degree conspiracy, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2(a), and third-degree burglary, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:18-2(a); (3) Indictment No. 12-06-886 - third-degree conspiracy, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2(a), and third-degree burglary, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:18-2(a); (4) Indictment No. 12-06-958 - third-degree conspiracy, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2(a), and two counts of third-degree burglary, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:18-2(a); and (5) Indictment No. 12-06-960 - third-degree conspiracy, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2(a), and two counts of third-degree burglary, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:18-2(a). Defendant also agreed to pay restitution.
The agreement also provided the State would recommend a term of imprisonment not to exceed three years and all other charges would be dismissed.
On appeal, defendant raises a single issue, arguing:
DEFENDANT'S CONVICTION AND SENTENCE MUST BE VACATED AS SHE WAS MATERIALLY MISINFORMED AS TO THE IMMIGRATION CONSEQUENCES OF HER PLEA AGREEMENT.
Following review of the record and applicable law, we affirm.A. Defendant was misinformed on the record as to the immigration consequences of her plea.
B. Trial counsel's failure to correct the material misunderstanding regarding the potential immigration consequences to Defendant permeating the plea and sentencing hearings constituted ineffective assistance of counsel.
The issue of defendant's non-resident status was first raised at a status conference held prior to her plea hearing. The judge informed defendant of the maximum possible sentence attached to the charges and noted, were she sentenced to a three-year term, she would become eligible for parole in nine months. Responding to the judge, defendant stated she was from Santiago, Dominican Republic. The judge advised: "[Y]ou're going to be deported. I'm not an immigration guy, I don't do immigration, but if you're convicted of . . . five burglaries or one it's possibly . . . a[n] aggravated felony." The judge further noted defendant needed to decide whether she wanted to spend nine months in jail and then return to Santiago, or face a sentence of ten years or more and then return to Santiago. The judge emphasized, "if you accept the responsibility, I'd be telling you flat out that's a deportable offense," also noting "[i]t's a federal mandate."
Eleven days later, defendant entered her guilty pleas. The executed plea form included a series of six questions directed to the deportation consequences of a guilty plea. Defendant completed the plea agreement, identifying herself as a non-citizen and affirming she understood the immigration consequences that could result from conviction. Defendant also stated she understood she had the right to seek legal advice regarding the immigration consequence. Further, she said she had not sought such individualized advice and chose not to do so.
Defendant utilized the August 1, 2011 revision of the plea form. See Administrative Directive #05-11 "Criminal Plea Form — Question Regarding the Immigration Consequences of a Guilty Plea" (August 1, 2011), https://www.judiciary.state.nj.us/directive/2011/dir_05-11.pdf. --------
In considering the plea agreement executed by defendant, the judge reviewed the questions set forth in the plea agreement with defendant:
THE COURT: Are you a United States citizen?
[DEFENDANT]: No.
THE COURT: All right, so this is very important to you. Do you understand if you're not a citizen this guilty plea may result in you being removed from the United
States or it might stop you, it might affect your ability to be able to enter or reenter the United States, you know that, right?
[DEFENDANT]: Yes.
THE COURT: And if you wanted to, you could get yourself individual advice from an immigration lawyer about this guilty plea and how it affects your immigration status, you know that, right?
[DEFENDANT]: Yes.
THE COURT: Do you want an opportunity to do that or no?
[DEFENDANT]: No.
THE COURT: And do you still wish to plead guilty even though you might have an immigration consequence later on?
[DEFENDANT]: Yes.
Sentencing was held almost three months later. After weighing applicable aggravating and mitigating factors, the judge imposed an aggregate three-year prison term.
Although she never moved to vacate her guilty plea, on appeal, defendant seeks to set aside her conviction, arguing she was misinformed. She suggests the judge's use of the words "may" and "might" when referring to the potential immigration consequences were equivocal and did not definitively inform her of the deportation consequences of her plea. Moreover, she maintains a sentence of less than one year would not have been an aggravated felony triggering deportation. Defendant urges her conviction be reversed because counsel was ineffective when explaining the issue of deportation.
A deprivation of the constitutional right to effective assistance of counsel occurs when "counsel [is] not functioning as the counsel guaranteed by the Sixth Amendment," and counsel's inadequate deficient performance causes the defendant prejudice. State v. Gaitan, 209 N.J. 339, 349-50 (2012) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
In reviewing a defendant's claim to be relieved of the consequences of a guilty plea, the first prong of the Strickland ineffective assistance of counsel test may be met where a defendant shows counsel's representation fell short of the prevailing standards expected of criminal defense attorneys. Padilla v. Kentucky, 559 U.S. 356, 366-67, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). Counsel's performance is not deficient if "a defendant considering whether or not to plead guilty to an offense receives correct information concerning all of the relevant material consequences that flow from such a plea." State v. Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012). The second prong requires a defendant to establish a reasonable probability that he or she would not have pled guilty but for counsel's errors. Gaitan, supra, 209 N.J. at 351.
In State v. Nuñez-Valdéz, 200 N.J. 129 (2009), the Supreme Court held a guilty plea could be vacated if a defendant shows the plea resulted from "inaccurate information from counsel concerning the deportation consequences of his plea." Id. at 143; State v. Brewster, 429 N.J. Super. 387, 392 (App. Div. 2013). The United States Supreme Court has clarified that counsel's duty is not limited to avoiding false or misleading information as our Court identified, but also includes an affirmative duty to inform a defendant entering a guilty plea of the relevant law pertaining to mandatory deportation. Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296. 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 (2012) (citing Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296). Accordingly, a defendant considering whether to plead guilty to an offense must "receive[] correct information concerning all of the relevant material consequences that flow from such a plea." Agathis, supra, 424 N.J. Super. at 22.
Contrary to defendant's assertions, the record does not support a claim of affirmative misadvice. The plea judge alerted the defendant to the issue at the management conference. He related his view that the offenses would trigger deportation and other immigration consequences. He bluntly explained she would be deported and were she sentenced to three years, she would spend nine months in jail and then be returned to Santiago. The matter was adjourned for a little more than a week to allow her to discuss all concerns with plea counsel, seek advice from specialized immigration counsel, and decide whether to proceed to trial.
During the plea hearing, the judge again considered the immigration issue when he reviewed defendant's response to question seventeen on the plea form. The judge told defendant her plea could have specific deportation consequences, mentioning deportation from and possible prohibited re-entry to the United States. He also informed her of the right to consult with counsel experienced in immigration issues triggered by criminal convictions. Defendant understood her rights and declined to seek professional assistance. She also stated she spoke to counsel regarding the issue and was satisfied with counsel's advice.
In reviewing this record we find no support for defendant's assertions she was misled or confused regarding the immigration consequences of entering a plea of guilty. She presented no comments by her attorney suggesting she was assured she would not be deported. Defendant was warned on multiple occasions a guilty plea would affect her immigration status. Further, she was told deportation would be triggered and the judge extended ample time to consider her options. Defendant was provided the opportunity to speak with plea counsel, raised no questions during the hearings, and actively chose not to consult with immigration counsel. Counsel is not under "a duty to advise a client that removal is a certainty, even if the client's offense makes him [or her] clearly 'deportable' under federal law for committing [an] . . . offense." State v. Blake, No. A-5695-13 (App. Div. Feb. 26, 2016) (slip op. at 20). The record contains no assertion counsel minimized the risk of removal or otherwise misled defendant. The lack of specific comments by plea counsel on the record does not prove, as defendant suggests, immigration consequences were not discussed. The judge's colloquy with defendant followed question 17 of the plea form, which gives the defendant clear information regarding deportation upon conviction of an aggravated felony and the opportunity to seek individualized advice.
We conclude the record supports the conclusion defendant was properly informed of the immigration consequences attached to a conviction following a guilty plea. The record does not support defendant's contention counsel's performance was deficient. See Blake, supra, (slip op. at 18). Because Strickland's first prong cannot be met, there is no basis to set aside defendant's convictions.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION