STATE OF NEW JERSEY VS. JOHN D. GABRIELE(12-03-0521, OCEAN COUNTY AND STATEWIDE)

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3219-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ZBIGNIEW KOLODZIEJ,

Defendant-Appellant. _______________________________

Submitted March 27, 2017 – Decided April 5, 2017

Before Judges Sabatino and Haas.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-06-0896.

Law Offices of Peter G. Aziz & Associates LLC, attorneys for appellant (Peter G. Aziz, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Zbigniew Kolodziej appeals the trial court's denial

of his petition for post-conviction relief ("PCR"). An immigrant

from Poland, defendant contends that he was deprived of the effective assistance of counsel when he pled guilty to an offense

in 2004. He alleges he was not provided by his attorney with

sufficient advice concerning the deportation consequences of his

guilty plea. We affirm.

Defendant was charged in October 2004 with assault by auto

arising out of an incident in November 2003 in which the car he

was driving struck another vehicle on the highway. 1 Defendant

abandoned his car and fled from the scene of the accident. Police

found an empty bottle of vodka in the car. When he was apprehended

by the police a short time later, his blood alcohol content was

measured at .224, well over the legal limit.

Defendant negotiated through his counsel a plea agreement

with the State. He appeared before the trial court on October 4,

2004, and pled guilty to the assault by auto charge. He admitted

on the record to the court that he was not a United States citizen,

and was advised that he could get deported as a consequence of his

guilty plea.

Consistent with the plea agreement, defendant was sentenced

on January 6, 2005 to a three-year probationary term with 270 days

1 The appellate record does not contain a transcript of the plea and sentencing hearings. These facts are derived from the parties' briefs, defendant's appendix, and the PCR hearing. In any event, these omissions are inconsequential because defendant does not appear to contest the PCR judge's quotations from the plea and sentencing proceedings.

2 A-3219-15T1 in the county jail. Both at the plea hearing and sentencing, the

court provided defendant with a Polish interpreter.

Defendant did not file a direct appeal.

Eight years later, defendant filed his PCR petition in

November 2013. He alleged that he had been deprived of his

constitutional rights at his plea and sentencing because allegedly

he was not sufficiently alerted to the likelihood that he would

be deported based upon this conviction. The trial court ruled

that defendant had no viable claim of ineffectiveness under the

applicable law, and dismissed his petition without an evidentiary

hearing.

On appeal, defendant raises the following arguments in his

brief:

I. THE CONSEQUENCES OF DEFENDANT'S INITIAL GUILTY PLEA ARE PENAL RATHER THAN COLLATERAL, CONSONANT WITH THE HOLDING OF STATE V. NUNEZ. [sic] 200 N.J. 129 [2009]. THE CONSEQUENCES FACED BY DEFENDANT AS A DIRECT CONSEQUENCE OF HIS IMMIGRATION STATUS ARE PUNITIVE.

II. THE CONSEQUENCES OF DEFENDANT'S GUILTY PLEA ON HIS IMMIGRATION STATUS IS VIOLATIVE OF THE SIXTH AMENDMENT'S PROHIBITION OF DOUBLE JEOPARDY.

III. THE CONSEQUENCES OF DEFENDANT'S CRIMINAL CONVICTION IN REGARD TO HIS IMMIGRATION STATUS REPRESENTS THE CRIMINALIZATION OF DEFENDANT'S IMMIGRATION STATUS AND IS THEREFORE UNCONSTITUTIONAL.

3 A-3219-15T1 Having considered these arguments, we affirm the dismissal of

defendant's PCR petition, substantially for the reasons set forth

in Judge Ronald B. Sokalski's oral opinion dated March 8, 2016.

Although the State initially argues that defendant's petition

was untimely and procedurally barred, we need not reach those

arguments because defendant's claims are clearly without merit

under the law.

The governing law regarding the deportation consequences of

a guilty plea is now clear. The Supreme Court of the United States

has held that criminal defense attorneys are affirmatively

obligated to inform their clients about the deportation risks of

entering a guilty plea. Padilla v. Kentucky, 559 U.S. 356, 367,

130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). However,

the Court held that Padilla does not apply retroactively. Chaidez

v. United States, U.S. , , 133 S. Ct. 1103, 1105, 185

L. Ed. 2d 149, 154 (2013).

The New Jersey Supreme Court has likewise held that Padilla

is a new rule to be applied prospectively only. State v. Gaitan,

209 N.J. 339, 371-72 (2012), cert. denied, ___ U.S. ___, 133 S.

Ct. 1454, 185 L. Ed. 2d 361 (2013); see also State v. Santos, 210

N.J. 129, 143 (2012). For cases like this one that preceded

Padilla, constitutionally ineffective assistance of plea counsel

can only be established where counsel provided affirmatively

4 A-3219-15T1 misleading advice to a defendant about the immigration

consequences of a guilty plea. See State v. Nuñez-Valdéz, 200

N.J. 129, 139-43 (2009) (where defense counsel informed the

defendant there would be no immigration consequences arising from

his plea); see also Santos, supra, 210 N.J. at 143.

This case plainly does not meet the criteria of pre-Padilla

law. At the time defendant's guilty plea was accepted in October

2004 and he was sentenced in January 2005, the law did not impose

upon his criminal defense attorney any affirmative obligation to

provide advice about deportation consequences. Notably, Question

17 on the plea form commonly used at the time stated that the

defendant "may" be deported. That "may" term was repeated, both

at defendant's plea hearing and at his sentencing by the trial

court, where defendant specifically acknowledged that he

understood the possibility that he might be deported after pleading

guilty. Nothing more was required under the law at the time.

There was no need for the PCR judge in this case to conduct

an evidentiary hearing. Defendant has failed to present a viable,

prima facie case that would justify such a hearing. State v.

Preciose, 129 N.J. 451, 462-63 (1992).

Affirmed.

5 A-3219-15T1