Opinion
DOCKET NO. A-1263-14T3
05-16-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EDWIN M. SERRANO, a/k/a JOHN RUIZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-08-1810 and Accusation No. 07-12-1760. Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Edwin M. Serrano appeals from the dismissal of his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm.
In order to resolve two indictments on drug charges in different counties, defendant entered a negotiated guilty plea in December 2007 to third-degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3), and possession with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7, in exchange for a recommended sentence of five years special probation in the Union County Drug Court.
The lawyer defendant retained to represent him could not be present for the plea, but he had arranged for substitute counsel to appear on defendant's behalf. On the plea forms for each indictment, defendant circled "N[ot]/A[pplicable]" to question seventeen which 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?" Judge Triarsi reviewed the plea forms with defendant and asked him specifically, under oath, whether he was "a citizen of this country." Defendant responded, "I am, yes, Sir."
That was not true. Defendant was not a citizen. He had been born in Columbia and came to the United States with his mother as a child. He had been educated here, completing high school, a trade school and some college. He spoke English with no hint of an accent.
Defendant was represented at sentencing by his regular counsel. That lawyer advised the judge that he had reviewed the pre-sentence report with defendant and noted no errors. The pre-sentence report reflected that defendant was born in Columbia and was a citizen of that country. Judge Triarsi noted defendant, who was then thirty-one years old had twelve arrests, a prior indictment for theft and one disorderly persons offense. The judge sentenced defendant in accordance with the plea agreement to two concurrent terms of five years' probation subject to the special conditions of drug court.
Defendant was arrested by officers of the Immigration and Customs Enforcement Agency in 2012 based on those convictions and, following removal proceedings, was deported to Columbia in 2014.
In his amended PCR petition of May 2014, defendant alleged that his retained counsel was ineffective for failing to appear at defendant's plea hearing, for advising him to misrepresent his legal status to the court in connection with his plea and for affirmatively misadvising him that deportation was not applicable to his guilty plea. Defendant averred he did not learn that his legal permanent resident status could be terminated as a result of his guilty plea until October 2012, and that had he understood the actual consequences of his plea, he would not have pleaded guilty.
Judge Triarsi presided over an evidentiary hearing on the petition at which defendant's retained counsel and stand-in counsel both testified. Defendant participated in the hearing by telephone from Columbia and testified in his own behalf.
Defendant claimed he told both lawyers that he was a not a citizen but a permanent resident, and that both men told him it did not matter whether he was a U.S. citizen, that the plea offer was the best he was going to get and that he should take it. Defendant also testified he was concerned about jail time, and that neither lawyer told him how much time he could be facing if he went to trial. Defendant claimed the judge's statement at the plea hearing that defendant could be facing ten years in prison if convicted was "eye opening." Finally, defendant claimed his retained counsel advised him to say he was a United States citizen at the plea hearing, knowing that was not true.
On cross-examination, defendant agreed with the allegations of his petition that his retained counsel never advised him of the consequences of his guilty plea or its effect on his immigration status. He also agreed that he filled out an application for drug court stating that he was a U.S. citizen. When asked on re-direct what he meant by the statement in his petition that his counsel never advised him of the consequences of his plea, defendant replied: "Well, it was never discussed as far as my immigration status, that I would be deported, how it would affect my family, the jail time that I was facing it was — it was never mentioned."
Defendant's retained counsel and substitute counsel both testified that defendant had never volunteered his immigration status and that neither asked him whether he was a citizen. Substitute counsel testified defendant spoke English fluently, that he thought defendant told him he grew up in Elizabeth and that he never thought to ask him about his citizenship. Retained counsel testified he had represented defendant on one prior occasion in municipal court before this matter. He claimed defendant never told him he was not a U.S. citizen and had never given him any reason to believe he was not a citizen. Counsel testified that although he did immigration work at the time, he never asked defendant whether he was a citizen. In response to questions from the court, counsel testified he did not tell defendant to complete the plea form to indicate he was a U.S. citizen or advise defendant to tell the court he was.
After hearing the testimony, the judge issued an opinion from the bench denying defendant's petition. Analyzing the claims under the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), the judge rejected defendant's claim that either lawyer had been ineffective in any respect. He found neither lawyer misrepresented defendant's immigration status "because they had no knowledge that he had an immigration issue to begin with because he never told them he was not a citizen of this country." The judge found defendant's testimony that his lawyer counseled him to lie about his immigration status wholly incredible as the plea "would go through anyway." The judge concluded "the defendant is in the position he's in[,] where he's in Columbia based upon his own lie." He continued:
He lied to me at the time of the pleas when he told me he was a citizen under oath. He lied to . . . me and to the court staff when he applied for . . . the drug court in his application in the case [saying] he's a citizen. He further lied when he was in jail — I mean his bail issue when he was interviewed by our staff and told them again he was a U.S. citizen. These lies placed him where he is now, that is to say as a convicted felon who didn't tell me he was [not] a citizen and who has now been deported.
Defendant appeals raising the following issues.
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND DEFENDANT'S GUILTY
PLEAS VACATED BECAUSE TRIAL COUNSEL'S ADMISSION THAT THEY DID NOT ASK DEFENDANT IF HE WAS A CITIZEN OF THE UNITED STATES WAS INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
THE PCR COURT'S RULINGS VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
We reject these arguments as without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Defendant's plea was entered in 2007, before the United States Supreme Court's holding in Padilla v. Kentucky, "that when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear." 559 U.S. 356, 369, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 296 (2010). The holding in Padilla is not applied retroactively. Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1107, 185 L. Ed. 2d 149, 155 (2013); accord State v. Gaitan, 209 N.J. 339, 373-74 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
Accordingly, this case is squarely controlled by State v. Nuñez-Valdéz, 200 N.J. 129, 139-40 (2009) (holding misinformation to a defendant as to the deportation consequences of a guilty plea could be sufficient to prove a prima facie case of ineffective assistance of counsel). At the time this plea was entered, defendant's counsel's obligation was only to refrain from giving misinformation about the consequences of the plea. See Gaitan, supra, 209 N.J. at 373-75. They were not required to make inquiry as to defendant's immigration status and advise him accordingly. Id. at 375. Because Judge Triarsi found after weighing the testimony that defendant's lawyers did not provide him with false or misleading advice about the immigration consequences of his plea, which findings are entitled to our deference, see State v. Elders, 192 N.J. 224, 244 (2007), the petition was properly dismissed.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION