Opinion
DOCKET NO. A-2206-11T2
01-17-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ELIAS JUAREZ-GONZALEZ, a/k/a ELIAS JUAREZ, Defendant-Appellant.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-01-0158. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Tracey McQuaide, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 01-01-0158.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Tracey McQuaide, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Defendant Elias Juarez-Gonzalez appeals from the May 31, 2011 denial of his first petition for post-conviction relief (PCR) without oral argument or a hearing. In light of State v. Parker, 212 N.J. 269 (2012), we remand for a statement of reasons why argument was denied.
We have been supplied with a four-page opinion denying relief. No order was submitted.
After being charged in Hudson County Indictment No. 01-01-0158 with second-degree sexual assault, N.J.S.A. 2C:14-2(c), defendant worked out a plea arrangement with the State whereby he entered a guilty plea to third-degree criminal restraint, N.J.S.A. 2C:13-2, and the State agreed to recommend a noncustodial sentence. Defendant utilized a Spanish interpreter when reviewing and signing his plea form, and during his plea hearing and sentencing. On the plea form then in use, defendant circled "yes" to pre-printed question number seventeen, "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?" On January 3, 2003, defendant was sentenced to three years' probation. He did not file an appeal.
In March 2006, when defendant returned to the United States from a trip, and applied for re-admission as a lawful permanent resident, he was placed in the custody of the United States Immigration and Customs Enforcement, Department of Homeland Security, because of his conviction. Defendant litigated his deportation through the federal courts, filing a final appeal in May 2010. On June 10, 2010, more than seven and one-half years after sentencing, defendant filed a pro se PCR petition, with a signed certification, alleging that his attorney had not told him that he would be deported as a result of his guilty plea and that, had he known he would be deported, he would not have pled guilty. Assigned counsel submitted defendant's unsigned certification to the PCR judge, which indicated that he was innocent of the charges and that his trial counsel had misinformed him of the likely immigration consequences of his guilty plea.
According to an affidavit submitted by defendant's immigration attorney, defendant was awarded permanent resident status on March 6, 1997.
According to appellate counsel, defendant has subsequently been deported to Mexico.
The document indicates that it is an affidavit, but it is not signed by a notary as required by Court Rules. R. 1:4-4.
Without affording oral argument, the PCR judge denied defendant's PCR petition in a written opinion. The judge indicated that the petition was procedurally defective because it was not verified by defendant and time-barred since it was filed more than five years after the judgment of conviction was entered on January 3, 2003. R. 3:22-12(a)(1). The judge indicated that the delay was not excusable because defendant knew the consequences of his guilty plea as soon as deportation proceedings were instituted against him in 2006. Additionally, on the merits, the judge determined that defendant would not have chosen to go to trial based on the deportation consequences because he received a favorable plea agreement.
Defendant raises the following issues on appeal:
POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE FAILING TO AFFORD A DEFENDANT WHO IS IN JEOPARDY OF BEING DEPORTED AN OPPORTUNITY TO PRESENT ORAL ARGUMENT, IN THE ABSENCE OF A CERTIFICATION BY PCR COUNSEL WAIVING ORAL ARGUMENT, VIOLATED THE DEFENDANT'S RIGHT TO POST-CONVICTION RELIEF.
POINT II: THE PCR COURT MISAPPLIED ITS DISCRETION IN DENYING POST-CONVICTION RELIEF BECAUSE OF THE [FIVE] YEAR PROCEDURAL BAR SINCE THE IMPACT THAT THE VIOLATION OF DEFENDANT'S FOURTEENETH AMENDMENT DUE PROCESS RIGHT TO BE INFORMED OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA HAD ON THE INTEGRITY OF THE CRIMINAL JUSTICE SYSTEM WAS SO SIGNIFICANT, IT WARRANTED RELAXATION OF R. 3:22-12 UNDER THE "INJUSTICE" CLAUSE OF R. 1:1-2.
POINT III: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTION VACATED BECAUSE TRIAL COUNSEL'S FAILURE TO ADVISE DEFENDANT OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA
DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
POINT IV: THE COURT'S RULING DENYING POST-CONVICTION [RELIEF] VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
After the appeal in this matter was filed, the New Jersey Supreme Court decided Parker, which held that a trial judge should provide a specific "statement of reasons that is tailored to the particular application" when denying oral argument. Parker, supra, 212 N.J. at 282. Generally, reasons must be placed on the record for any judicial decision. See Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2013); Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574, 589 (App. Div. 2005) (finding appellate review "hampered by the absence of findings and a more complete record" (citation omitted)). In State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001), we noted that although oral argument was not required in the PCR context "there should be a significant presumption in favor of oral argument[] [i]n light of what is at stake for a defendant[.]" Id. at 388.
Given the presumption in favor of oral argument and the general requirement that judges place the reasons for his or her decisions on the record, the requirement that a PCR judge specify his or her reasons for denying oral argument to a defendant who files a PCR petition for the first time is not a new rule of law. "[W]here a new rule is not at issue, a retroactivity inquiry is unnecessary." State v. Feal, 194 N.J. 293, 308 (2008) (citing State v. Colbert 190 N.J. 14, 22 (2007)).
We therefore remand this matter for thirty days to allow the judge to reconsider and allow oral argument, or provide us with a statement of reasons as to why oral argument was denied.
This statement should be sent directly to our chambers.
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Reversed and remanded. Jurisdiction is retained.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION