NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0849-14T2
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, August 16, 2016
v. APPELLATE DIVISION
MARIANO ANTUNA,
Defendant-Appellant. ___________________________________
Argued February 1, 2016 – Decided August 16, 2016
Before Judges Lihotz, Nugent and Higbee.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Accusation No. 00-02-0541.
Justin T. Loughry argued the cause for appellant (Loughry and Lindsay, LLC, attorneys; Mr. Loughry, on the brief).
Jason Magid, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Mr. Magid, of counsel and on the brief).
The opinion of the court was delivered by
HIGBEE, J.A.D.
Defendant Mariano Antuna appeals from an August 4, 2014
order denying his petition for post-conviction relief (PCR). Defendant argues he received ineffective assistance of counsel
because his trial counsel failed to properly advise him of
potential immigration consequences resulting from his conviction
following a guilty plea. Alternatively, defendant argues
counsel's failure to read to him or have him complete the plea
form, resulted in ineffective assistance of counsel. We agree
with the latter contention and reverse.
Defendant was charged in Accusation No. 00-02-0541 with
third-degree possession with intent to distribute heroin,
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). In 2000,
defendant executed the written plea and waiver of indictment
forms, and pled guilty to the Accusation. Question seventeen of
the plea form, which was exclusively in English, was not
answered. That question reads: "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? [YES] [NO] [N/A]."
It is undisputed that defendant is a Cuban native who could
not understand English. With the aid of a Spanish interpreter,
defendant testified he signed the negotiated plea agreement as
completed by his attorney without actually reading the questions
to him. Defendant further testified his attorney did not review
question seventeen with him or advise of immigration
consequences resulting from his guilty plea. During the plea
2 A-0849-14T2 colloquy, the trial judge did not inquire whether defendant
could read or understand English. Further, the judge did not
remark that question seventeen was not answered, nor did he
advise defendant he could be deported as a result of his
conviction or ask whether counsel discussed immigration
consequences with him.1
Defendant was thereafter sentenced to probation for three
years with fines and penalties. Pursuant to a 2002 order for
early discharge of probation, defendant's probation was
terminated. In 2005, after applying for permanent residency
status, defendant was subjected to removal proceedings by United
States Immigration and Customs Enforcement. In 2013, defendant
filed a verified petition for post-conviction relief and later
supplemented his pleadings with a certification and brief.2
Following a plenary hearing, the PCR judge filed an order and
written opinion denying defendant's petition.
The PCR judge found defendant's testimony credible and
stated "[b]ecause the defendant did not speak or read English
1 Defendant asserted he would have proceeded to trial had he been aware of the risk of deportation to Cuba, associated with his guilty plea. 2 Although defendant filed his PCR petition approximately eight years after becoming aware of his potential deportation, the PCR judge found there was excusable neglect on behalf of defendant. Whether defendant's PCR petition was time-barred pursuant to Rule 3:22-12(a) is not before this court.
3 A-0849-14T2 and did not indicate an answer to [q]uestion [seventeen] on the
plea form, specifically addressing immigration consequences, the
record before the [c]ourt supports the defendant's contention
that he was not provided information regarding the immigration
consequences." The judge also found that "if [defendant's trial
counsel] provided any information, [he] would not have provided
misinformation as he is not experienced in immigration law and
would not have provided [immigration] advice." The PCR judge
reasoned that because defendant "does not contend [his trial
counsel] misinformed him about the immigration consequences
. . . the representation was not deficient under Nuñez-Valdéz."3
Defendant appeals from that order, raising the following
claims:
I. THIS CASE CONSTITUTES AN INSTANCE OF ["]MIS-ADVICE", AND THEREFORE SHOULD COME WITHIN THE RULE OF NUÑEZ-VALDÉZ.
II. EVEN IF NOT CONSIDERED A STRICT CASE OF MIS-ADVICE, THIS CASE EXPOSES THE USELESSNESS OF THE DISTINCTION BETWEEN MIS- ADVICE AND NON-ADVICE WHEN AN ATTORNEY, ON ACCOUNT OF LANGUAGE BARRIERS, CONTROLS THE PREPARATION AND EXECUTION OF THE PLEA FORM, AND FAILS TO ANSWER IN ANY MANNER ITEM 17. (NOT RAISED BELOW).
We defer to a PCR court's factual findings if they "are
supported by sufficient credible evidence in the record." State
3 State v. Nuñez-Valdéz, 200 N.J. 129 (2009).
4 A-0849-14T2 v. Nash, 212 N.J. 518, 540 (2013). However, we review a PCR
court's legal conclusions de novo. Id. at 540-41.
To succeed on a claim for ineffective assistance of
counsel, "a defendant must show deficient performance by counsel
'so serious that counsel was not functioning as the counsel
guaranteed by the Sixth Amendment' and that the defendant was
prejudiced by the attorney's performance." 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). Such a showing must be proven by a preponderance
of the evidence. Id. at 350.
An attorney's performance is reviewed for "reasonableness
under prevailing professional norms." Ibid. (quoting
Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L.
Ed. 2d at 694). Such an evaluation "must be 'viewed as of the
time of counsel's conduct.'" Ibid. (quoting State v. Castagna,
187 N.J. 293, 314 (2006)). For a showing of prejudice in
connection with a guilty plea, "a defendant must prove 'that
there is a reasonable probability that, but for counsel's
errors, [he or she] would not have pled guilty and would have
insisted on going to trial.'" Id. at 351 (alteration in
original) (quoting Nuñez-Valdéz, supra, 200 N.J. at 139).
5 A-0849-14T2 Defendant's plea was entered prior to the United States
Supreme Court's holding that requires "counsel must inform her
client whether his plea carries a risk of deportation." Padilla
v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486, 176 L.
Ed. 2d 284, 299 (2010). The holding in Padilla is only applied
prospectively. Chaidez v. United States, __ U.S. __, __, 133 S.
Ct. 1103, 1107, 185 L. Ed. 2d 149, 155 (2013); accord Gaitan,
supra, 209 N.J. at 373-74. Because this matter arose prior to
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0849-14T2
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, August 16, 2016
v. APPELLATE DIVISION
MARIANO ANTUNA,
Defendant-Appellant. ___________________________________
Argued February 1, 2016 – Decided August 16, 2016
Before Judges Lihotz, Nugent and Higbee.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Accusation No. 00-02-0541.
Justin T. Loughry argued the cause for appellant (Loughry and Lindsay, LLC, attorneys; Mr. Loughry, on the brief).
Jason Magid, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Mr. Magid, of counsel and on the brief).
The opinion of the court was delivered by
HIGBEE, J.A.D.
Defendant Mariano Antuna appeals from an August 4, 2014
order denying his petition for post-conviction relief (PCR). Defendant argues he received ineffective assistance of counsel
because his trial counsel failed to properly advise him of
potential immigration consequences resulting from his conviction
following a guilty plea. Alternatively, defendant argues
counsel's failure to read to him or have him complete the plea
form, resulted in ineffective assistance of counsel. We agree
with the latter contention and reverse.
Defendant was charged in Accusation No. 00-02-0541 with
third-degree possession with intent to distribute heroin,
N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). In 2000,
defendant executed the written plea and waiver of indictment
forms, and pled guilty to the Accusation. Question seventeen of
the plea form, which was exclusively in English, was not
answered. That question reads: "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? [YES] [NO] [N/A]."
It is undisputed that defendant is a Cuban native who could
not understand English. With the aid of a Spanish interpreter,
defendant testified he signed the negotiated plea agreement as
completed by his attorney without actually reading the questions
to him. Defendant further testified his attorney did not review
question seventeen with him or advise of immigration
consequences resulting from his guilty plea. During the plea
2 A-0849-14T2 colloquy, the trial judge did not inquire whether defendant
could read or understand English. Further, the judge did not
remark that question seventeen was not answered, nor did he
advise defendant he could be deported as a result of his
conviction or ask whether counsel discussed immigration
consequences with him.1
Defendant was thereafter sentenced to probation for three
years with fines and penalties. Pursuant to a 2002 order for
early discharge of probation, defendant's probation was
terminated. In 2005, after applying for permanent residency
status, defendant was subjected to removal proceedings by United
States Immigration and Customs Enforcement. In 2013, defendant
filed a verified petition for post-conviction relief and later
supplemented his pleadings with a certification and brief.2
Following a plenary hearing, the PCR judge filed an order and
written opinion denying defendant's petition.
The PCR judge found defendant's testimony credible and
stated "[b]ecause the defendant did not speak or read English
1 Defendant asserted he would have proceeded to trial had he been aware of the risk of deportation to Cuba, associated with his guilty plea. 2 Although defendant filed his PCR petition approximately eight years after becoming aware of his potential deportation, the PCR judge found there was excusable neglect on behalf of defendant. Whether defendant's PCR petition was time-barred pursuant to Rule 3:22-12(a) is not before this court.
3 A-0849-14T2 and did not indicate an answer to [q]uestion [seventeen] on the
plea form, specifically addressing immigration consequences, the
record before the [c]ourt supports the defendant's contention
that he was not provided information regarding the immigration
consequences." The judge also found that "if [defendant's trial
counsel] provided any information, [he] would not have provided
misinformation as he is not experienced in immigration law and
would not have provided [immigration] advice." The PCR judge
reasoned that because defendant "does not contend [his trial
counsel] misinformed him about the immigration consequences
. . . the representation was not deficient under Nuñez-Valdéz."3
Defendant appeals from that order, raising the following
claims:
I. THIS CASE CONSTITUTES AN INSTANCE OF ["]MIS-ADVICE", AND THEREFORE SHOULD COME WITHIN THE RULE OF NUÑEZ-VALDÉZ.
II. EVEN IF NOT CONSIDERED A STRICT CASE OF MIS-ADVICE, THIS CASE EXPOSES THE USELESSNESS OF THE DISTINCTION BETWEEN MIS- ADVICE AND NON-ADVICE WHEN AN ATTORNEY, ON ACCOUNT OF LANGUAGE BARRIERS, CONTROLS THE PREPARATION AND EXECUTION OF THE PLEA FORM, AND FAILS TO ANSWER IN ANY MANNER ITEM 17. (NOT RAISED BELOW).
We defer to a PCR court's factual findings if they "are
supported by sufficient credible evidence in the record." State
3 State v. Nuñez-Valdéz, 200 N.J. 129 (2009).
4 A-0849-14T2 v. Nash, 212 N.J. 518, 540 (2013). However, we review a PCR
court's legal conclusions de novo. Id. at 540-41.
To succeed on a claim for ineffective assistance of
counsel, "a defendant must show deficient performance by counsel
'so serious that counsel was not functioning as the counsel
guaranteed by the Sixth Amendment' and that the defendant was
prejudiced by the attorney's performance." 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). Such a showing must be proven by a preponderance
of the evidence. Id. at 350.
An attorney's performance is reviewed for "reasonableness
under prevailing professional norms." Ibid. (quoting
Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L.
Ed. 2d at 694). Such an evaluation "must be 'viewed as of the
time of counsel's conduct.'" Ibid. (quoting State v. Castagna,
187 N.J. 293, 314 (2006)). For a showing of prejudice in
connection with a guilty plea, "a defendant must prove 'that
there is a reasonable probability that, but for counsel's
errors, [he or she] would not have pled guilty and would have
insisted on going to trial.'" Id. at 351 (alteration in
original) (quoting Nuñez-Valdéz, supra, 200 N.J. at 139).
5 A-0849-14T2 Defendant's plea was entered prior to the United States
Supreme Court's holding that requires "counsel must inform her
client whether his plea carries a risk of deportation." Padilla
v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486, 176 L.
Ed. 2d 284, 299 (2010). The holding in Padilla is only applied
prospectively. Chaidez v. United States, __ U.S. __, __, 133 S.
Ct. 1103, 1107, 185 L. Ed. 2d 149, 155 (2013); accord Gaitan,
supra, 209 N.J. at 373-74. Because this matter arose prior to
Padilla, the legal standard controlling the advice defense
counsel is obligated to provide when addressing immigration
consequences of a conviction arising at the time a defendant
enters a guilty plea is found in Nuñez-Valdéz. Gaitain, supra,
209 N.J. at 373-74.
In Nuñez-Valdéz, the Supreme Court held that the
defendant's counsel's incorrect advice or misleading information
regarding deportation and immigration consequences resulting
from a guilty plea to an aggravated felony was sufficient to
satisfy the performance prong of the Strickland analysis.
Nuñez-Valdéz, supra, 200 N.J. at 140-42. Furthermore, based on
the defendant's testimony that had he received correct advice,
he would not have pled guilty, the Court found the prejudice
prong of Strickland was satisfied as well. Id. at 142-43.
6 A-0849-14T2 As discussed in Gaitan, the mandate that "defense attorneys
now must advise their clients of potential immigration
consequences of pleading guilty" – was never established prior
to Padilla. Gaitan, supra, 209 N.J. at 346. Specifically, the
Court emphasized "[t]hat was not our law, even under the Nuñez-
Valdéz holding." Id. at 373.
Here, limiting the analysis to the fact that defendant's
trial counsel did not affirmatively provide false advice or
misinformation about defendant's immigration consequences
resulting from his guilty plea ignores the uncontroverted
evidence that counsel failed to convey to defendant the basic
information on deportation included on the plea form. Defendant
avers he was completely unaware of possible deportation
consequences which the PCR judge found credible.
These facts support our conclusion that counsel's
performance was deficient, despite a finding he did not provide
affirmative misadvice, thus distinguishing it from cases
governed by Nuñez-Valdéz, supra, 200 N.J. at 136 (where
defendant completed the plea form). The facts presented in this
matter are also distinguishable from our holdings in State v.
Blake, 444 N.J. Super. 285, 290 (App. Div. 2016), and State v.
Brewster, 429 N.J. Super. 387, 391 (App. Div. 2013), where we
affirmed the denial of PCR petitions when the defendant
7 A-0849-14T2 completed question seventeen in the plea form and no evidence of
false advice or affirmative misinformation about deportation was
presented. In these cases, question seventeen was answered in
the plea form as required.
It is well-settled that a plea must be entered into
knowingly, intelligently, and voluntarily. State v. Johnson,
182 N.J. 232, 236 (2005). Prior to executing a guilty plea, a
defendant must "complete, insofar as applicable, and sign the
appropriate form prescribed by the Administrative Director of
the Courts." R. 3:9-2. Moreover, "the defendant must
understand the nature of the charge and the consequences of the
plea" including "consequences that are 'direct' or 'penal.'"
Johnson, supra, 182 N.J. at 236 (quoting State v. Howard, 110
N.J. 113, 122 (1988)). See also State v. Bellamy, 178 N.J. 127,
139 (2003) ("We continue to stress the necessity of determining
whether a consequence is direct or penal when analyzing whether
a defendant must be informed of a particular consequence.").4
4 Despite our previous recognition that "the [Supreme] Court has indicated its inclination to depart from the traditional differentiation between the penal consequences of a plea and its civil collateral consequences [,]" State v. Maldon, 422 N.J. Super. 475, 483 (App. Div. 2011), the Court has not yet abandoned that analysis.
8 A-0849-14T2 The possibility of deportation is "similar to a penal
consequence that requires notice to defendant."5 Nuñez-Valdéz,
supra, 200 N.J. at 138. See also Gaitan, supra, 209 N.J. at
372-73 ("Prior to Nuñez-Valdéz, immigration consequences had
been categorized as collateral consequences of a guilty plea as
to which there was no obligation to warn defendants.").
Therefore, the plea form "should instruct defendants of their
right to seek legal advice regarding their immigration status."
Nuñez-Valdéz, 200 N.J. at 144. Such a requirement provides
"[c]larity as to the direct and penal consequences of a
defendant's guilty plea" and "serves to ensure that a
defendant's 'expectations [are] reasonably grounded in the terms
of the plea bargain.'" Johnson, supra, 182 N.J. at 237
(alteration in original) (quoting State v. Marzolf, 79 N.J. 167,
183 (1979)). A defendant should not be completely unaware or
uninformed "as to a material element of a plea negotiation,
which [he] has relied [on] in entering his plea." Id. at 236-37
(alteration in original) (quoting State v. Nichols, 71 N.J. 358,
361 (1976)).
5 Although the decision in Nuñez-Valdéz did not turn on "the traditional dichotomy" of "whether consequences of a plea are penal or collateral," the Court nonetheless viewed deportation as "similar to a penal consequence." Nuñez-Valdéz, supra, 200 N.J. at 138.
9 A-0849-14T2 Here, defendant did not understand English while executing
the plea form or while entering his guilty plea before the
court. Although defendant's attorney did not provide false
advice or affirmative misinformation to defendant about his risk
of deportation, we nonetheless conclude the attorney's
performance was deficient for failing to have defendant review
every question on the plea form. Had he done so, defendant
would have been on notice of the possibility of deportation,
something that a defendant must be at a minimum aware of, prior
to entering a knowing, intelligent, and voluntary plea. Without
being given the opportunity to review every question on the plea
form, we conclude that defendant was provided with
representation that was not "reasonable[] under prevailing
professional norms."6 Gaitan, supra, 209 N.J. at 350 (quoting
Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L.
Ed. 2d at 694).
Reversed and remanded. We do not retain jurisdiction.
6 We note defendant's argument that his attorney's performance was deficient for failing to have defendant complete the plea form was not raised at the trial level. Therefore, our review is governed by the plain error standard. R. 2:10-2. Plain error is that which is "clearly capable of producing an unjust result." Ibid. We conclude the error here, was "clearly capable of producing an unjust result." Ibid.
10 A-0849-14T2