Opinion
DOCKET NO. A-5952-12T4
08-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JUDITH MENDOZA, n/k/a JUDITH LISA, Defendant-Appellant.
Howard W. Bailey, attorney for appellant. John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson and Sabatino. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-06-1330. Howard W. Bailey, attorney for appellant. John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
After an evidentiary hearing, the trial court denied defendant Judith Mendoza's petition for post-conviction relief ("PCR"). In her petition, defendant attempted to have the court set aside her 2003 guilty plea and conviction of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. She contended that she had been given improper advice by her plea counsel and was otherwise deprived of the effective assistance of an attorney. The PCR court, having considered defendant's testimony and the surrounding circumstances, found that defendant's claims were not credible. We affirm.
Defendant is presently known as Judith Lisa.
Defendant, who was a legal permanent resident of the United States, is from Peru. She is the mother of three minor-aged children who live in New Jersey. One of those children, S.M., lives separately from defendant with his father and was the victim in this case.
In 2002, a Bergen County grand jury issued a one-count indictment against defendant, charging her with second-degree child endangerment under N.J.S.A. 2C:24-4a. Defendant retained the services of a private attorney to represent her in the case. As the result of negotiations, a plea agreement was struck, in which the State agreed to allow defendant to plead guilty to a downgraded third-degree child endangerment offense. Defendant and the State also agreed to a recommended five-year probationary term, conditioned on her serving 270 days in the Bergen County jail. Notably, Question 17 of the plea form 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 answered, "Yes."
During the plea hearing on January 21, 2003, defendant appeared with her attorney and specifically acknowledged that her plea was voluntary, that no one had made her any promises other than what was contained in the plea agreement, and that she was satisfied with her attorney's services. She further acknowledged that she faced a greater exposure to prison if she elected to go to trial and was found guilty.
Defendant's foreign national status was specifically covered by the court's questions during the plea colloquy. She admitted that she was not a citizen of the United States. She also specifically acknowledged her understanding that her guilty plea, as the court phrased it, "could upset [her] residence status" and that, in fact, it "could mandate that [she] be deported to [her] country of origin." Defendant advised the court under oath that she had gone over that risk of deportation with her attorney and that, despite being aware of it, she still wished to enter into her guilty plea.
Thereafter, the court imposed sentence consistent with the plea agreement and entered a judgment of conviction on February 26, 2003. The sentence included the agreed-upon probationary term of five years, subject to 270 days in the county jail, as well as substance abuse testing and psychological counseling. Defendant did not appeal from the judgment of conviction, and has since completed her sentence.
In the years following, defendant traveled on several occasions to Peru to visit relatives there. On returning from such a trip in June 2012, she was stopped by federal customs agents, and her "green card" was confiscated because of her prior conviction. According to her certification, defendant had been advised by an immigration attorney that she now will very likely be forced to leave the United States.
Despite her acknowledgments of the risk of deportation on the plea form and in the plea colloquy, defendant, now nearly a decade later, asserts that her plea counsel provided her with incorrect and misleading advice. She contends that her former attorney told her not to be concerned about deportation consequences because she was from a Spanish-speaking country rather than from a Middle Eastern country. She further claims that her plea counsel told her that mothers of United States citizens do not get deported for offenses such as hers. In addition to these alleged misrepresentations, defendant contends that her plea counsel never affirmatively informed her that she was at risk for being denied re-entry into the United States if she left the country, or that her conviction was severe enough to subject her to deportation.
The trial court conducted an evidentiary hearing on June 3, 2013 to consider defendant's contentions. The court heard extensive testimony from defendant, her husband, and her former plea counsel.
The plea counsel testified that he had gone over the plea form with defendant before it was submitted to the court. Given the intervening passage of about a decade in time, plea counsel did not specifically recall going over Question 17 on the form with defendant. However, he testified that he generally had become more concerned about deportation consequences for his criminal clients in the aftermath of the September 2001 terrorist attacks and the greater stringency of the immigration authorities. Plea counsel did not recall ever telling defendant that she would be less prone to deportation since she was from a Spanish-speaking country rather than a Middle Eastern country. In fact, the attorney testified that it was "highly likely" that he did not say anything of that sort to her. He also did not recall telling defendant not to be worried about deportation, or words to that effect, as that would not be something he would "normally say." Finally, plea counsel described his successful efforts in persuading the State to downgrade the charges to a third-degree offense and to a non-custodial disposition, despite the fact that defendant's physical abuse of her son, S.M., had left him with a permanent scar.
After considering the testimony of the three witnesses at the PCR hearing, the trial judge, Hon. Donald R. Venezia, concluded that defendant had failed to credibly establish that she had received improper advice about deportation consequences by her former attorney. In his oral opinion, the judge specifically found that defendant's testimony about what her former attorney had allegedly told her was not credible. The judge also found incredible defendant's claim that, had she known more fully the deportation consequences she was facing, she would have declined the plea offer, gone to trial, and potentially exposed herself to even harsher punishment. The judge explained that even if plea counsel's representation was deficient, defendant could not have established prejudice from those shortcomings because she realistically would not have rejected the plea offer and gone to trial facing a much longer sentence upon conviction.
Judge Venezia, who presided over the PCR hearing, was the same judge who took defendant's guilty plea and imposed sentence in 2003.
The judge did agree with defendant that she had shown "excusable neglect" to justify her filing the PCR petition after the five-year deadline of Rule 3:22-12.
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On appeal, defendant presents the following argument:
The Court Erred In Ruling that the Trial Attorney Had Not Provided Misinformation to the Appellant When The Attorney Told The Client That The Plea Would Not Result In Deportation Because The U.S. Was Not Deporting Mothers of U.S. Citizens and Because She Was Not Arabic; and, By The Court Not Permitting The Introduction Of Defense Argument Through The Immigration Attorney As To The Significance Of The Differences Between Sections Of Title 9 That Had Automatic Deportation Consequences From Those That Do Not.
In assessing this argument, we are guided by the recently-developed case law concerning the effective assistance of criminal defense counsel in advising clients about deportation risks. Because defendant's guilty plea and conviction occurred in 2003, the United States Supreme Court's watershed holding of Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010) (requiring such counsel to affirmatively advise their clients about the risks of deportation), does not apply here retroactively. See Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1110-11, 185 L. Ed. 2d 149, 159-60 (2013) (holding that the more stringent requirements for criminal representation delineated in Padilla do not apply to convictions preceding that decision).
Instead, the pre-Padilla standards of effective assistance, as outlined by our State Supreme Court in State v. Nuñez-Valdéz, 200 N.J. 129 (2009), apply here. Under those standards, a defendant must show that counsel provided "false or misleading [material] information concerning the deportation consequences of a plea of guilty." Id. at 138. In addition, to gain PCR relief in a situation of such proven misadvice, a defendant must also show that there is a "reasonable probability that, but for counsel's errors, [she] would not have [pled] guilty and would have insisted on going to trial." State v. Di Frisco, 137 N.J. 434, 457 (1994); see also Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384, 182 L. Ed. 2d 398, 406-07 (2012) (likewise reiterating the "reasonable probability" requirement).
Our scope of review of the PCR court's disposition of this matter, following an evidentiary hearing, is limited. We must affirm the court's factual findings, particularly those relating to the credibility of the witnesses, unless "they are so clearly mistaken that the interests of justice demand intervention and correction." Nuñez-Valdéz, supra, 200 N.J. at 141 (citation and internal quotation marks omitted). We must give close regard to the trial court's credibility assessments, given its special opportunity "to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Ibid. (citation omitted).
Applying that deferential standard of review to the trial court's factual findings, we affirm the denial of defendant's PCR petition, substantially for the reasons articulated in Judge Venezia's bench opinion. The judge found defendant's claims of false and incorrect advice being given by her prior attorney to be incredible and untrue. Although the attorney understandably did not recall all of the specifics that he discussed with his client, now more than a decade after the fact, the judge reasonably accepted the attorney's testimony that it was highly unlikely that he would have told defendant that she would be less prone to be deported because she was Peruvian rather than of Middle Eastern descent. The record contains no supporting documentation to corroborate defendant's claim that she was provided with such incorrect advice by her attorney, who had many prior years of experience as a practicing lawyer.
Moreover, we agree with the judge that there is no "reasonable probability" that defendant would have turned down the State's generous plea offer if she had received better advice from her attorney about deportation consequences. The probationary sentence that she received pursuant to the plea bargain was clearly a marked improvement from the presumptive exposure to a State prison sentence she would have faced had she been found guilty by a jury of a second-degree crime. See N.J.S.A. 2C:43-6a(2).
Lastly, we reject defendant's contention that her plea counsel should have alerted her, or been attentive to, the distinction between criminal child abuse and neglect violations that carry "automatic" deportation consequences from those that do not. Prior to Padilla, criminal defense counsel were not constitutionally required to inform their clients as to whether the offenses charged against their clients would lead to mandatory or automatic removal. See State v. Gaitan, 2 09 N.J. 339, 371 (2012), cert. denied, ___ U.S. ____, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); State v. Brewster, 429 N.J. Super. 387, 397 (App. Div. 2013) (noting that under pre-Padilla law, a plea form containing Question 17 was not constitutionally deficient, and was not required to alert the defendant that he was "subject to mandatory deportation").
Hence, the trial court did not abuse its discretion or otherwise err in declining to consider testimony from an immigration attorney at the PCR hearing highlighting the "automatic deportation" differences in the applicable statutes. There is also no basis to presume that the State would have agreed to accept a guilty plea to a different offense with non- automatic deportation consequences, had the question arisen at all during the plea negotiations.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPEALATE DIVISION