Opinion
DOCKET NO. A-0827-12T3
09-22-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE LUIS MARTINEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Linda Mehling, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 96-01-0222. Joseph E. Krakora, Public Defender, attorney for appellant (Linda Mehling, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by OSTRER, J.A.D.
Defendant appeals from the trial court's order denying as time-barred his petition for post-conviction relief (PCR) from his 1996 conviction in Camden County for second-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1). Defendant is a citizen of the Dominican Republic. He argues he entered his plea because his attorney ineffectively failed to inform him of the immigration consequences of conviction. We affirm.
Defendant pleaded guilty on June 4, 1996, after the trial court denied his motion to suppress the fruits of a warrantless search and seizure. On August 2, 1996, defendant personally appeared for sentencing. In accord with the plea agreement, the court sentenced defendant to a seven-year flat term, but released him on bail pending appeal of the suppression decision. We affirmed the trial court's order. State v. Martinez, No. A-0317-96 (App. Div. May 21, 1998).
However, after the appeal was decided, defendant did not surrender to serve his sentence. He left the United States sometime in late 1997, aware that federal immigration officials had sought his removal. He was briefly incarcerated in 1997 by immigration officials until his wife posted a $5000 immigration bond to assure his appearance at immigration proceedings.
However, the federal removal proceedings were not directly related to defendant's New Jersey conviction. Defendant did not disclose his Camden County conviction to immigration officials. He informed a federal immigration agent that he never had a trial; and, the agent was unable to obtain the disposition of his New Jersey charges. Rather, immigration officials sought Martinez's removal because they learned that Martinez had overstayed his 1994 visa. They became aware of Martinez's continued presence after Pennsylvania authorities notified them of his arrest there in 1997 on theft charges. After defendant failed to appear at his 1998 immigration trial, the immigration judge ordered his removal in absentia on November 6, 1998.
Defendant illegally reentered the United States in October 2004. Immigration officials arrested him soon thereafter. After defendant pleaded guilty to federal charges of passport fraud, he was removed to the Dominican Republic on April 6, 2005.
Defendant subsequently illegally reentered the United States again in 2009. He was arrested by the United States Marshal in January 2010 on the Camden County warrant and incarcerated there. Soon thereafter, immigration officials sought to reinstate the prior order of removal. Defendant was also indicted on criminal violations of federal immigration law, 8 U.S.C.A. §§ 1326(a) and (b)(2), for reentering the country despite prior orders of removal. He apparently entered a plea to the federal indictment. However, only an unexecuted plea agreement is included in the record.
Defendant filed his pro se petition for PCR on September 2, 2010 — over fourteen years after entry of his judgment of conviction. Defendant alleged six instances of ineffective assistance of counsel:
a. fail to conduct an evidentiary hearing.
b. fail to suppress the evidence under Sands/Bronson/bruton.
c. fail to defend me in an appropriate and substantial argument.
d. fail to file motions in my behalf as to defense under the constitutional issues, either State, Federal.
e. fail to seek a more le[]nient sentence as requested by defendant.
f. fail to ask the State for a modification of sentence due to an extreme hardship due to being sought under for deportation by the U.S. Department of Homeland Security-ICE.
g. Therefore, I am requesting to either re-open my plea agreement for possible re-sentence or debate for the insufficient defense counsel assistance.
In asking the court to consider his petition, defendant misstated that he was not present for sentencing in August 1996. He claimed he was told by an unidentified person or people that he was "finished with [his] sentence" and he had "no knowledge that I would have to serve this sentence."
I would like to file this post-conviction relief due to my late event of being
sentenced on August 2nd, 1996, and not being at the presence of the sentencing judge at the time. I was removed from the United States to my country of origin that is the place where I was born, Dominican Republic, and later I came back to the United States of America, and was arrested and thereby now presently sentenced to the act and event that happened back in the year of 1996. I had no knowledge that I would have to serve this sentence when I was removed from the United States at the time. They told me I was finished with my sentence or never told me so.
After counsel was appointed, defendant filed a supplemental certification in which he alleged that his trial counsel failed to inform him of the immigration consequences of his plea; specifically, that his conviction would subject him to removal. Defendant claimed that counsel did not discuss the plea form, and defendant only signed and initialed it where counsel instructed. Question 17 of the plea form — inquiring whether defendant was aware of potential immigration consequences — was marked "no." Defendant's immigration status was not discussed on the record at his plea or sentencing hearings.
In apparent contradiction of his pro se petition, in which he asserted he believed his Camden County charges were resolved, defendant asserted in his supplemental certification that his intention in reentering the United States in 2004 was to resolve "the outstanding criminal charges in Camden County." Defendant argued that he would not have entered a plea had he known of the immigration consequences of his plea. "I had nothing to lose by facing a trial because the immigration consequences of my guilty plea were exactly the same as if a jury found me guilty."
Judge Michael J. Kassel denied defendant's petition without an evidentiary hearing on May 18, 2012. Defendant did not appear as he was in federal custody in New York. Judge Kassel found that defendant had failed to show excusable neglect for his failure to file his petition within five years of entry of the judgment of conviction. See R. 3:22-12(a)(1). Judge Kassel posited that even if defendant had been unaware of the immigration consequences of his plea when he left the country in 1997, he certainly became aware by the time he was removed in April 2005. Yet, defendant failed to file a petition within five years of that date. Judge Kassel also was unpersuaded by defendant's claim that he would have gone to trial had he known the immigration consequences of his conviction, noting that the plea enabled defendant to avoid the risks of a longer term and a period of parole ineligibility.
On appeal, defendant presents the following points for our consideration:
POINT I
THE TRIAL COURT'S REFUSAL TO GRANT AN EVIDENTIARY HEARING, EVEN THOUGH PETITIONER MADE A PRIMA FACIE SHOWING THAT HIS ATTORNEY ERRONEOUSLY TOLD HIM THAT HE WOULD NOT BE
SUBJECT TO DEPORTATION, REQUIRES A REVERSAL AND REMAND.
POINT II
THE DENIAL OF THE PETITION SHOULD BE REVERSED FOR THE REASONS SET FORTH IN PETITIONER'S PRO SE PETITION.
We affirm substantially for the reasons set forth by Judge Kassel. A defendant shall file a first petition for PCR within five years of entry of the judgment of conviction unless he or she "alleges facts showing that the delay . . . was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1).
Defendant failed to demonstrate excusable neglect. His claim that he was unaware that his charges were still pending is baseless. He was present at sentencing. He fled the country despite both Camden County and federal immigration bails. He conceded in his supplemental certification that he was aware his Camden charges remained pending when he returned in 2004.
Moreover, there is no showing that even if defendant's allegations were true, he would suffer a "fundamental injustice." Our Supreme Court has held that a "fundamental[] injustice" is one that involves "some showing that an error or violation played a role in the determination of guilt." State v. Nash, 212 N.J. 518, 547 (2013) (internal quotation marks and citation omitted). Defendant's claim pertaining to immigration consequences does not implicate his guilt on the charges. See State v. Brewster, 429 N.J. Super. 387, 401 (App. Div. 2013) (finding a defendant's PCR petition was time-barred and did not implicate a "fundamental injustice" because "[h]is knowledge of the risk of deportation did not affect the truth-finding function of the court").
Finally, we observe that even had defendant timely filed his petition, his principal claim of ineffective assistance lacks merit. Defendant's claim is subject to the two-prong standard under Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).
Defendant asserted that his trial counsel failed to inform him of the immigration consequences of his plea, but did not allege that he was affirmatively misinformed that the plea would have no consequences. Under the law that existed at the time, trial counsel's alleged failure to inform would not have satisfied the first Strickland prong. Prior to the United States Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), defense counsel was required to avoid affirmatively misinforming his client about the immigration consequences of his plea; he was also required not to compound the error by providing inaccurate and misleading information. State v. Gaitan, 209 N.J. 339, 373 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Therefore, trial counsel's alleged failure to broach the subject was not ineffective assistance.
We recognize that there is a conceivable basis for a claim of affirmative misinformation, as defendant responded "no" to plea form question 17. The question 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?" Defendant also stated at his plea hearing that he understood and answered each question truthfully after reviewing the English-language plea form with counsel, with the assistance of defendant's friend, who served as an interpreter.
However, defendant asserted in support of his petition that counsel "did not discuss the plea form with me" and "did not go over the form with me" and simply instructed defendant where to sign on the pre-completed form. Defendant cannot have it both ways. In his petition, he alleged a lack of advice, not affirmative misadvice. Moreover, defendant's claim of ignorance about the potential impact of his conviction is belied by his apparent misrepresentation to a federal immigration agent in 1997 regarding the status of his Camden charges.
Defendant's remaining points lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION