STATE OF NEW JERSEY VS. MICHAEL NUNEZ (10-06-1884, CAMDEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 19, 2018
• Docket: A-0792-17T4
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0792-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL NUNEZ,

Defendant-Appellant.

Submitted September 13, 2018 – Decided September 19, 2018

Before Judges Currier and Mayer.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-06-1884.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Maura Murphy Sullivan, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Defendant Michael Nunez appeals from the denial of his post-conviction

relief (PCR) petition. Defendant contends trial counsel's ineffective assistance

caused him to plead guilty without knowledge of deportation consequences, and

that counsel failed to represent him properly at the sentencing hearing. Because

we find defendant has not demonstrated a prima facie showing of ineffective

counsel, we affirm.

After a jury convicted defendant on charges of murder and weapons-

related offenses, on appeal, this court reversed the convictions and sentence,

finding error in the admission of certain testimony. State v. Nunez, 436 N.J.

Super. 70, 72 (App. Div. 2014). Following the State's petition for certification,

the Supreme Court granted a motion for a remand to permit the parties to

negotiate a plea agreement.

In January 2015, defendant pleaded guilty to an amended count of

aggravated manslaughter as part of a negotiated plea and was sentenced within

the negotiated term to twenty years imprisonment with an eighty-five percent

period of disqualification under the No Early Release Act, N.J.S.A. 2C:43-7.2.

After defendant filed a notice of appeal, asserting an excessive sentence, the

State moved to vacate the plea agreement. Defendant thereafter withdrew his

notice of appeal.

A-0792-17T4 2 In defendant's PCR petition before the trial court, he argued that trial

counsel failed to discuss potential immigration consequences stemming from his

guilty plea and that his sentence was excessive. In a supporting certification,

defendant averred for the first time that he had been born in the Dominican

Republic and immigrated to the United States when he was a year and a half.

In considering defendant's arguments, the judge noted Padilla v.

Kentucky, 559 U.S. 356 (2010), was the controlling law in determining whether

an attorney properly advised his or her client of any immigration consequences

of a plea agreement. However, the judge also noted that defendant had

represented himself to be an American citizen throughout the course of the trial

court proceedings.

Defendant reported during his pre-sentence report interview that he was

born in Camden, New Jersey where he continued to reside up until the

incarceration for his current charges. Defendant responded "yes" to the question

on the plea form asking whether he was a citizen of the United States. He

initialed the bottom of the page and signed the final page of the form. During

the plea colloquy, defendant confirmed he read the plea form, provided his

counsel with the information contained on the form, and signed and initialed

each page.

A-0792-17T4 3 The PCR judge observed that defendant had not submitted any

documentation to support his assertion that he was a citizen of the Dominican

Republic and not the United States. As a result, his argument was nothing more

than a "bald assertion." The judge determined that trial counsel was "permitted

to rely on the defendant's representations that he was an American citizen." As

a result, trial counsel was not obligated to discuss the immigration consequences

of a guilty plea.

The PCR judge also considered and rejected defendant's second argument

in his petition, an allegation that trial counsel failed to argue any mitigating

factors at sentencing. As defendant did not specify which mitigating factors

might have been applicable in his circumstances, the judge categorized this

argument also as a bald assertion. The petition for PCR was denied on July 21,

2017.

On appeal, defendant reiterates his contentions presented to the PCR

court. The standard for determining whether counsel's performance was

ineffective for purposes of the Sixth Amendment to the United States

Constitution was formulated in Strickland v. Washington, 466 U.S. 668 (1984),

and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). To

prevail on an ineffective assistance of counsel claim, defendant must meet the

A-0792-17T4 4 two-prong test establishing both that: (l) counsel's performance was deficient

and he or she made errors that were so egregious that counsel was not

functioning effectively as guaranteed by the Sixth Amendment; and (2) the

defect in performance prejudiced defendant's rights to a fair trial such that there

exists a "reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Strickland, 466 U.S. at

687, 694.

We are satisfied from our review of the record that defendant failed to

demonstrate the ineffectiveness of trial counsel under the Strickland-Fritz test.

Although Padilla, State v. Nunez-Valdez, 200 N.J. 129 (2009) and State v.

Gaitan, 209 N.J. 339 (2012) (applying Padilla prospectively), all require trial

counsel to inform a non-citizen client when a plea carries a risk of deportation,

those circumstances were not present here.

At no time during these court proceedings did defendant advise he was

not a United States citizen. To the contrary, he stated during the pre-sentence

report interview that he was born in Camden where he resided his entire life. He

spoke English and had finished the 10th grade. Defendant provided the

information on the plea form that he was a United States citizen. He initialed

the pertinent page and signed the form.

A-0792-17T4 5 As a result, we are satisfied the PCR judge properly analyzed the two

prong standard articulated in Strickland and his opinion was factually supported.

Where defendant represented he was a United States citizen and had lived in

New Jersey his entire life and provided no contrary information, trial counsel

cannot be deemed deficient for failing to advise defendant of potential

immigration consequences stemming from his plea.

In considering defendant's assertion concerning his sentence, we find it to

be without merit. In the first instance, any challenge to a sentence is properly

raised in a direct appeal. Defendant initially appealed his sentence, asserting it

to be excessive. However, after the State moved to vacate the guilty plea,

defendant withdrew his appeal, later raising the same argument in his PCR

petition. Rule 3:22-4(a) precludes defendant from raising these arguments in

his petition. Nevertheless, we have considered defendant's contentions and find

them meritless. Although defendant did not express to the PCR court which

mitigating factors might have been applicable, on appeal he mentions mitigating

factor seven, N.J.S.A. 2C:44-1(b)(7), that defendant was law-abiding for a

A-0792-17T4 6 significant period of time, and mitigating factor eleven,1 N.J.S.A. 2C:44-

1(b)(11), that imprisonment would entail excessive hardship to a dependent.

The record fails to support either of these factors. Defendant had multiple

prior convictions as a juvenile and adult, for which he had served prison time.

Although the presentence report advised that defendant lived with his three-

year-old child and the child's mother, it also listed defendant as unemployed

without any assets or income. Defendant has not demonstrated that he provided

any support to a dependent or that his incarceration would pose an excessive

financial hardship to a dependent. We are satisfied defendant has not established

that counsel was deficient in failing to assert either of these factors.

Affirmed.

1 Defendant cites to mitigating factor thirteen in his brief, N.J.S.A. 2C:44 - 1(b)(13). Based on his description of the factor, we conclude this was an error and the reference was instead to factor eleven. A-0792-17T4 7