NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2546-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NANCY NUNEZ,
Defendant-Appellant. _________________________________
Submitted August 21, 2018 – Decided August 27, 2018
Before Judges Messano and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Union County, Accusation No. 98-10-1280 and Indictment No. 99-02-0148.
Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the briefs).
Michael A. Monahan, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM On October 8, 1998, defendant Nancy Nunez pled guilty to a
one-count accusation charging her with third-degree distribution
of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1).
On March 29, 1999, defendant pled guilty to both counts of Union
County Indictment No. 99-02-0148, charging her with third-degree
possession of CDS, N.J.S.A. 2C:35-10(a)(1), and fourth-degree
resisting arrest, N.J.S.A. 2C:29-2(a). On the same day, the court
sentenced defendant, a legal permanent resident of the United
States at the time, on her guilty plea to the indictment to a
four-year term of probation, a specific condition of which was
enrollment in and successful completion of Drug Court. On April
23, 1999, the judge imposed the same sentence to run concurrently
on the guilty plea to the accusation.
Nearly twenty years later, on January 12, 2017, after she was
arrested in Pennsylvania and was in the custody of United States
Immigration and Customs Enforcement (ICE) facing possible
deportation, defendant moved to vacate her guilty pleas pursuant
to State v. Slater, 198 N.J. 145 (2009).1 In addition, as to her
guilty plea to the accusation, defendant argued that the court
1 Defense counsel explained in her motion brief that defendant, born in Cuba, did not face deportation to that nation. However, defendant would lose her legal status and the benefits that afforded her and would remain "deportable if at any future time the United States beg[an] deporting people to Cuba."
2 A-2546-17T3 failed to comply with Rule 3:9-2. See ibid. (providing, among
other things, that the court "shall not accept [a guilty] plea
without first questioning the defendant personally . . . and
determining . . . that the plea is made voluntarily . . . and with
an understanding of the nature of the charge and the consequences
of the plea").
In an oral decision that followed argument, the motion judge,
who was not the plea or sentencing judge, concluded that
defendant's guilty plea to the accusation was "constitutionally
defective." Specifically, defendant was amongst a group of co-
defendants who the plea judge addressed en masse, not personally,
and the judge failed to advise defendant of the full panoply of
rights she was waiving by pleading guilty. However, after
considering the four factors outlined by the Court in Slater, 198
N.J. at 157-58, the judge denied defendant's motion to withdraw
her guilty pleas to the indictment. The judge entered a conforming
order, and this appeal followed.
We listed the appeal originally on our Excessive Sentence
Oral Argument (ESOA) calendar. However, shortly before the
scheduled argument date, defense counsel supplied us with a three-
page brief outlining an argument she intended to make, i.e., that
defendant did not enter a knowing, voluntary and intelligent guilty
plea to the indictment "because she was not advised that it was
3 A-2546-17T3 certain to lead to her deportation." Counsel hastened to add that
neither the Slater paradigm nor "the ineffective-assistance-of-
counsel test in Strickland v. Washington, 466 U.S. 668, 687
(1984)," applied to the claim. Given the nature of the argument,
we transferred the appeal to the plenary calendar and ordered the
parties to brief the issue. They have.
Defendant raises a single point, that "because she was not
advised that the guilty plea to third-degree drug possession was
certain to lead to her deportation, [she] was denied due process
and the plea must be vacated." We disagree and affirm.
Initially, we dispense with the State's contention that we
should not consider the argument because defendant never raised
the issue before the trial court. State v. Witt, 223 N.J. 409,
419 (2015). Although it was not defendant's primary argument, the
letter brief submitted to the motion judge asserted that defendant
would not have pled guilty to the indictment had she known of the
"immigration consequences" of her guilty pleas.
When defendant entered her guilty pleas in 1998, the state
of our jurisprudence was clear and unequivocal. A defendant need
know only of the penal consequences of her guilty plea, not the
collateral consequences "such as loss of public or private
employment, effect on immigration status, voting rights, possible
auto license suspension, possible dishonorable discharge from the
4 A-2546-17T3 military, or anything else." State v. Heitzman, 209 N.J. Super.
617, 622 (App. Div. 1986) (emphasis added) (citation omitted),
aff'd o.b., 107 N.J. 603, 604 (1987); see also State v. Chung, 210
N.J. Super. 427, 433 (App. Div. 1986) ("[I]t is not the present
responsibility of a New Jersey judge to advise a defendant of
federal deportation consequences at the time of the taking of the
guilty plea.").
In State v. Garcia, 320 N.J. Super. 332 (App. Div. 1999), we
held that ambiguity surrounding the defendant's answer to question
#17 on the then-current plea form compelled an evidentiary hearing
on his petition for post-conviction relief (PCR). Id. at 336,
340-41. Based on possible misinformation about the immigration
consequences of his guilty plea, we concluded the defendant had
presented a prima facie case of ineffective assistance of counsel.
Id. at 341.
Here, defendant's answer to question #17 on the plea form —
"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?"
— was "Yes." Defendant cites to statements in her motion counsel's
brief alleging there was no discussion of this with plea counsel.
However, the record contains no such certification from defendant
herself. Defendant cites to the transcript of her guilty plea,
asserting it demonstrates insufficient inquiry by plea counsel or
5 A-2546-17T3 the judge about her understanding of the immigration consequences
of her pleas. However, the transcript reveals the judge
specifically asked defendant if the answers on the plea form were
her answers, and if they were accurate.
In any event, defendant does not argue that plea counsel
provided ineffective assistance. Instead, she contends that
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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-2546-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NANCY NUNEZ,
Defendant-Appellant. _________________________________
Submitted August 21, 2018 – Decided August 27, 2018
Before Judges Messano and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Union County, Accusation No. 98-10-1280 and Indictment No. 99-02-0148.
Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the briefs).
Michael A. Monahan, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM On October 8, 1998, defendant Nancy Nunez pled guilty to a
one-count accusation charging her with third-degree distribution
of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1).
On March 29, 1999, defendant pled guilty to both counts of Union
County Indictment No. 99-02-0148, charging her with third-degree
possession of CDS, N.J.S.A. 2C:35-10(a)(1), and fourth-degree
resisting arrest, N.J.S.A. 2C:29-2(a). On the same day, the court
sentenced defendant, a legal permanent resident of the United
States at the time, on her guilty plea to the indictment to a
four-year term of probation, a specific condition of which was
enrollment in and successful completion of Drug Court. On April
23, 1999, the judge imposed the same sentence to run concurrently
on the guilty plea to the accusation.
Nearly twenty years later, on January 12, 2017, after she was
arrested in Pennsylvania and was in the custody of United States
Immigration and Customs Enforcement (ICE) facing possible
deportation, defendant moved to vacate her guilty pleas pursuant
to State v. Slater, 198 N.J. 145 (2009).1 In addition, as to her
guilty plea to the accusation, defendant argued that the court
1 Defense counsel explained in her motion brief that defendant, born in Cuba, did not face deportation to that nation. However, defendant would lose her legal status and the benefits that afforded her and would remain "deportable if at any future time the United States beg[an] deporting people to Cuba."
2 A-2546-17T3 failed to comply with Rule 3:9-2. See ibid. (providing, among
other things, that the court "shall not accept [a guilty] plea
without first questioning the defendant personally . . . and
determining . . . that the plea is made voluntarily . . . and with
an understanding of the nature of the charge and the consequences
of the plea").
In an oral decision that followed argument, the motion judge,
who was not the plea or sentencing judge, concluded that
defendant's guilty plea to the accusation was "constitutionally
defective." Specifically, defendant was amongst a group of co-
defendants who the plea judge addressed en masse, not personally,
and the judge failed to advise defendant of the full panoply of
rights she was waiving by pleading guilty. However, after
considering the four factors outlined by the Court in Slater, 198
N.J. at 157-58, the judge denied defendant's motion to withdraw
her guilty pleas to the indictment. The judge entered a conforming
order, and this appeal followed.
We listed the appeal originally on our Excessive Sentence
Oral Argument (ESOA) calendar. However, shortly before the
scheduled argument date, defense counsel supplied us with a three-
page brief outlining an argument she intended to make, i.e., that
defendant did not enter a knowing, voluntary and intelligent guilty
plea to the indictment "because she was not advised that it was
3 A-2546-17T3 certain to lead to her deportation." Counsel hastened to add that
neither the Slater paradigm nor "the ineffective-assistance-of-
counsel test in Strickland v. Washington, 466 U.S. 668, 687
(1984)," applied to the claim. Given the nature of the argument,
we transferred the appeal to the plenary calendar and ordered the
parties to brief the issue. They have.
Defendant raises a single point, that "because she was not
advised that the guilty plea to third-degree drug possession was
certain to lead to her deportation, [she] was denied due process
and the plea must be vacated." We disagree and affirm.
Initially, we dispense with the State's contention that we
should not consider the argument because defendant never raised
the issue before the trial court. State v. Witt, 223 N.J. 409,
419 (2015). Although it was not defendant's primary argument, the
letter brief submitted to the motion judge asserted that defendant
would not have pled guilty to the indictment had she known of the
"immigration consequences" of her guilty pleas.
When defendant entered her guilty pleas in 1998, the state
of our jurisprudence was clear and unequivocal. A defendant need
know only of the penal consequences of her guilty plea, not the
collateral consequences "such as loss of public or private
employment, effect on immigration status, voting rights, possible
auto license suspension, possible dishonorable discharge from the
4 A-2546-17T3 military, or anything else." State v. Heitzman, 209 N.J. Super.
617, 622 (App. Div. 1986) (emphasis added) (citation omitted),
aff'd o.b., 107 N.J. 603, 604 (1987); see also State v. Chung, 210
N.J. Super. 427, 433 (App. Div. 1986) ("[I]t is not the present
responsibility of a New Jersey judge to advise a defendant of
federal deportation consequences at the time of the taking of the
guilty plea.").
In State v. Garcia, 320 N.J. Super. 332 (App. Div. 1999), we
held that ambiguity surrounding the defendant's answer to question
#17 on the then-current plea form compelled an evidentiary hearing
on his petition for post-conviction relief (PCR). Id. at 336,
340-41. Based on possible misinformation about the immigration
consequences of his guilty plea, we concluded the defendant had
presented a prima facie case of ineffective assistance of counsel.
Id. at 341.
Here, defendant's answer to question #17 on the plea form —
"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?"
— was "Yes." Defendant cites to statements in her motion counsel's
brief alleging there was no discussion of this with plea counsel.
However, the record contains no such certification from defendant
herself. Defendant cites to the transcript of her guilty plea,
asserting it demonstrates insufficient inquiry by plea counsel or
5 A-2546-17T3 the judge about her understanding of the immigration consequences
of her pleas. However, the transcript reveals the judge
specifically asked defendant if the answers on the plea form were
her answers, and if they were accurate.
In any event, defendant does not argue that plea counsel
provided ineffective assistance. Instead, she contends that
despite the state of our jurisprudence at the time of her guilty
pleas, the judge had the obligation to explain affirmatively that
deportation was "virtually mandatory" as a result. Padilla v.
Kentucky, 559 U.S. 356, 359 (2010).
We acknowledge that in State v. Nuñez-Valdéz, 200 N.J. 129
(2009), our Supreme Court rejected the penal-collateral
consequence dichotomy and recognized that defense counsel provided
ineffective assistance if he misinformed the defendant regarding
the immigration consequences of a guilty plea. Id. at 138-41.
The Court ordered further revision to question #17 on the plea
form. Id. at 144.
The majority of the Padilla Court expanded defense counsel's
obligation, holding an attorney must advise a client-defendant
whenever a plea places him at risk of deportation. 559 U.S. at
373-74. However, in State v. Gaitan, our Supreme Court held
Padilla did not apply retroactively, and that prior to Padilla,
plea counsel did not have an affirmative obligation to advise
6 A-2546-17T3 clients of "the mandatory deportation consequences of certain
convictions." 209 N.J. 339, 375 (2012).
Defendant's essential argument is that these cases recognize
a defendant's guilty plea does not comport with due process unless
it is entered knowingly and voluntarily and with full knowledge
of its immigration consequences. She contends that the judge has
an obligation independent of defense counsel to assure compliance
with Rule 3:9-2.
We have said that the judge's obligation to ensure a guilty
plea is entered voluntarily and "with an understanding of the
nature of the charge and the consequences of the plea," Rule 3:9-
2, "is related to, but distinct from the attorney's obligation to
render effective assistance." State v. Blake, 444 N.J. Super.
285, 297 (App. Div. 2016) (citing State v. Jamgochian, 363 N.J.
Super. 220, 227 (App. Div. 2003)). In rejecting the defendant's
PCR petition in Blake, a post-Padilla case, we recognized the
judge adhered to the plea form adopted by the Court, ibid.,
although we specifically did not consider whether the judge was
required to do more. Id. at 298 n.4.
In this case, defendant cites no authority supporting the
proposition that in 1998 a trial judge was required to
affirmatively advise a defendant of the immigration consequences
of her guilty plea beyond that required by the plea form, or that
7 A-2546-17T3 the failure to do so rendered the guilty plea non-compliant with
Rule 3:9-2 and violated defendant's due process rights. We decline
the opportunity to hold so in the first instance.
Affirmed.
8 A-2546-17T3