State of New Jersey v. J.A.C.S. ( 2024 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-0578-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J. A. C. S.,1
Defendant-Appellant.
Argued February 5, 2024 — Decided February 28, 2024
Before Judges Sabatino and Marczyk.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 02-03-0357.
Leslie B. Posnock argued the cause for appellant,
(Schwartz & Posnock, attorneys; Leslie B. Posnock, on
the briefs).
Meredith L. Balo, Assistant Prosecutor, argued the
cause for respondent (William A. Daniel, Union County
Prosecutor, attorney; Meredith L. Balo, of counsel and
on the brief).
PER CURIAM
1
We use initials because the case involves a child victim. R. 1:38-3(c)(9).
Defendant J.A.C.S. pled guilty in 2002 to a child endangerment offense,
was eventually sentenced after a long hiatus, and has since been deported. He
appeals the trial court's denial of his petition for post-conviction relief ("PCR")
and his motion to withdraw his guilty plea. For the reasons that follow, we
remand for the trial court to conduct an evidentiary hearing.
I.
We summarize the history of this matter, subject to further development
of the record on remand.
Defendant, a native of Belize, was living in New Jersey in 2001 with an
expired tourist visa. He allegedly engaged in sexual contact with a four-year-
old child in October 2001. A grand jury charged him with second-degree sexual
assault, N.J.S.A. 2C:14-2(b); third-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a); and fourth-degree lewdness, N.J.S.A. 2C:14-4(b)(1).
Following negotiations, defendant entered into a plea agreement with the
State, in which he pled guilty to the third-degree endangering count in exchange
for the other two counts being dismissed. As part of the agreement, the State
agreed to recommend a sentence of probation, with various conditions, including
an evaluation of defendant at the Avenel facility for sex offenders.
Defendant appeared with his counsel at a plea hearing on June 17, 2002.
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He confirmed with the court that he had reviewed the indictment with his
counsel and understood the charges against him. Likewise, defendant confirmed
he had reviewed the plea form with counsel and understood it.
Defendant answered "yes" to question 17 on the plea form, which 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?" (emphasis added). Following
up on that subject, the trial court asked defendant at the plea hearing if he was a
United States citizen. Defendant answered in the negative. The court then asked
defendant whether he "underst[oo]d that if [he] enter[ed] a plea of guilty today,
[he] may be subject to deportation?" (emphasis added). Defendant answered in
the affirmative.
Defendant presented a sufficient factual basis for his guilty plea. Both
counsel acknowledged he had entered into the plea agreement voluntarily. The
court accepted the plea, and it agreed to release defendant on his own
recognizance.
The court instructed defendant that he would have to return for a status
conference on July 26, 2002, and that he would have to appear for sentencing
on October 4, 2002. The court further advised defendant he would need to report
for a presentence interview with probation and an evaluation at Avenel.
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Defendant acknowledged to the court that he understood his obligations to
appear for those hearings and appointments.
According to defendant, he did appear at Avenel for the evaluation and
completed some of the other presentencing steps the court had prescribed.
However, defendant failed to appear in court at his sentencing date. A warrant
for his arrest was consequently issued.
Defendant, meanwhile, moved to Ohio, got married, and started a family.
He received conditional permanent United States resident status in August 2010,
and permanent resident status in October 2014.2
For reasons that are not apparent from the record supplied on appeal, it
took over fourteen years for authorities to locate and apprehend defendant. He
was arrested on the bench warrant on April 18, 2017, and brought back to New
Jersey.
Defendant finally appeared for sentencing on June 30, 2017. The
sentencing judge first confirmed with defendant that he could proceed without
an interpreter, having communicated with his sentencing counsel in English.
Defendant's hired sentencing counsel could not attend the sentencing and so had
2
The record does not explain how defendant obtained these immigration rights
with an open New Jersey bench warrant.
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a second sentencing counsel stand in at the proceeding.
The sentencing judge noted that defendant had "seem[ed] to maintain his
innocence" in the presentence report. The judge therefore asked sentencing
counsel whether defendant "wished to withdraw the guilty plea." Counsel
advised the judge his understanding was that defendant did not wish to withdraw
his plea, and stated he had gone over the plea transcript with defendant that
afternoon.
Addressing defendant, the sentencing judge asked if it was his intent to be
sentenced, to which defendant replied, "[t]hat's what the lawyer told me, that I
was—to have court today to be sentenced." The judge then asked if defendant
maintained his innocence as to the charges, to which defendant replied, "I'm still
innocent, because I never did nothing, but as I was going with my lawyer, I told
him that whatever was in the papers before, I will take the plea."
Defendant further stated to the court regarding the original plea hearing
he "just remember[ed] [he] told [his] lawyer that [he] was innocent, . . . and [he]
remember[ed] [plea counsel had] told [him], just sign this paper and you're going
to go home." Because defendant maintained his innocence to the sentencing
judge, the trial court recessed for a few minutes to enable defendant to speak
with counsel about whether he stood by the guilty plea. Minutes later, defendant
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advised the sentencing judge that he stood by his guilty plea and that he "d[id]n't
want to withdraw" it.
The court proceeded to sentence defendant, consistent with the plea
agreement, to time served of 302 days, three years of probation, and other
various fines and conditions. A final judgment of conviction was entered on
July 14, 2017. Defendant did not appeal his sentence.
A few months later, in September 2017, the United States Department of
Homeland Security initiated detention and deportation proceedings against
defendant. Because his state court conviction for child endangerment in this
case subjected him to mandatory deportation, defendant was ordered to be
deported in 2018. He ultimately was removed from the United States to Belize
in December 2020. Counsel represented to us at oral argument that defendant
currently remains deported.
In January 2019, defendant filed a PCR petition. His central contention
is that his multiple sentencing counsel were constitutionally ineffective in not
taking steps to move to withdraw his guilty plea, and in failing to advise him
that his offense of child endangerment exposed him to mandatory deportation.
Defendant supported his PCR petition with a certification from an attorney
who is an expert in immigration law and criminal defense. The expert attested
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that under the immigration laws, defendant was subjected to mandatory
deportation by virtue of his guilty plea to a crime of moral turpitude. The expert
opined that defendant's former counsel were remiss in failing to provide him
with "clear advice" about the immigration consequences of his plea.
Defendant's verified petition similarly detailed how he had been deprived
of adequate legal advice concerning the immigration consequences of his guilty
plea. Among other things, defendant attested that that he had "explained [his]
immigration status and [his] innocence to [his sentencing] attorney of record and
advised [his counsel] that [he] did not want to maintain [his] guilty plea."
Defendant stated he "was informed that Immigrations and Customs Enforcement
("ICE") 'could' come and pick [him] up, as they had a detainer on [him and] that
it was 'up to them.'" Defendant also asserts he "was informed [by sentencing
counsel] that [his] sentence was subject to the plea agreement from 2002 and
that this could not be changed." Defendant noted his sentencing counsel of
record was "not an immigration attorney and could not explain the consequences
of [his] potential sentence."
Defendant further asserted that "[o]n the date of the sentence, [he] told the
[c]ourt that [he] was innocent of the charges and [he] repeated this to [counsel]
who represented [him] at sentencing." Defendant asserted he "did not have any
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discussion concerning immigration consequences with this attorney . . . [who]
was not able to answer [his] questions concerning what would happen to [him]
with regard to immigration if [he] accepted the sentence, except to say that
'deportation was a possibility.'"
In addition, defendant certified that during the break in the sentencing
hearing, he spoke with his counsel about the "plea, sentence and immigration
issues." According to defendant, sentencing counsel told him that "the plea
would not be vacated, that the [c]ourt was prepared to give [him] time-served
and that ICE 'could' get involved with [his] case, since [he] had a detainer, but
that [counsel] did not know."
Defendant further claimed that "[his] immigration status did not seem to
be an issue of much importance" to either of the two attorneys who represented
him at sentencing. He claimed he understood his counsel's use of the phrase
"may be deported" to mean that "there was merely a possibility that [he] would
be deported," but he did not understand "to what extent [deportation] was
possible." Allegedly, neither of his attorneys at the sentencing process provided
defendant with sufficient information "to understand how devastating the
[immigration] impact would be."
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According to defendant, because his family and his life had been in the
United States, if he had "kn[own] the true ramifications" of a potential
immigration matter, he "would never have accepted this sentence," "would have
insisted on filing a motion to vacate [his] original plea," and would have chosen
to proceed with trial. Defendant further asserted that if he had understood there
was "no doubt regarding the consequences of [his] charges," "[he] would have
fought for a verdict that reflected [his innocence.]"
After hearing oral argument on August 16, 2019, the PCR court, as a
threshold matter, found no evidentiary hearing was necessary to determine the
soundness of sentencing counsel advice "because no material facts are in dispute
and no 'off the record' conversations are relied upon by the defendant."
Specifically, the PCR court found "[t]he record is clear and the defendant's
certification does not dispute that [his sentencing counsel] told the defendant he
may be deported.". (Emphasis added).
The PCR court further ruled sentencing counsel was not responsible for
informing defendant of immigration consequences stemming from his guilty
plea, because the plea agreement made over a decade earlier "could not have
been altered at that point without judicial intervention." The PCR court held
that this "would impose an obligation on sentencing counsel that [they] did not
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otherwise have."
The PCR court further held that the constitutional principles of Padilla v.
Kentucky, 559 U.S. 356, 365-66 (2010) (imposing obligations on criminal
defense counsel to provide affirmative advice about deportation consequences)
could not be applied to the conduct of defendant's plea counsel in 2002. The
court relied in this regard on State v. Gaitan, 209 N.J. 339, 346 (2012) (holding
that Padilla was to be applied only prospectively). The PCR court further ruled
that a retroactive application of Padilla would improperly "reward the
defendant's failure to appear for sentencing that was supposed to occur . . . years
before Padilla."
The PCR court also rejected defendant's claims concerning his sentencing
counsel. The court ruled sentencing counsel were not deficient for failing to
advise defendant regarding the possibility of a motion to withdraw his guilty
plea because "such a motion would not have been granted and counsel is not
under an obligation to inform the defendant of inaccessible avenues of relief."
Finally, the PCR court held that even if the performance of sentencing
counsel had been deficient, defendant's PCR application would still be denied
because their performance did not prejudice him. The court reasoned that for
defendant to show he was prejudiced by sentencing counsel, he needed to
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demonstrate a reasonable probability that the outcome of the proceedings would
have been different if he had moved to withdraw his guilty plea. This required
an analysis of the four factors for the withdrawal of guilty pleas articulated by
State v. Slater, 198 N.J. 145, 157-58 (2009).
The PCR court found the first Slater factor—assertion of a colorable claim
of innocence—weighed heavily against defendant because "[w]hile the
defendant now asserts his innocence, this claim is belied by the factual basis he
provided at the time of entering his plea." Further, "the defendant's protestations
of innocence are not supported by any external evidence."
As for the second Slater factor—defendant's reasons for wanting to
withdraw the plea—the PCR court found it weighed "moderately" in defendant's
favor, as defendant believed he had received ineffective assistance of counsel in
accepting the plea and his "motivation for wanting to withdraw his guilty plea
to avoid negative immigration consequences [wa]s not untoward."
The third Slater factor—the existence of a plea bargain—is not weighed
as strongly as the other three. Nonetheless, the PCR court found this factor also
weighed against defendant.
Finally, the PCR court found the fourth Slater factor—unfair prejudice to
the State or unfair advantage to the defendant—"weigh[ed] heavily against the
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defendant" because the "case involved the sexual assault of a child that occurred
approximately eighteen years ago." The PCR court found the "excessive delay"
present in defendant's case stemmed from his "own failure to appear for
sentencing" and that, "[u]ndoubtedly, the State's ability to present credible
witness testimony is significantly disadvantaged."
Weighing the four Slater factors together, the PCR court found defendant
"ha[d] not presented a reasonable probability that his case would have reached
any different or more favorable outcome if he had attempted to retract his plea
or had been counseled regarding the immigration consequences of entering his
guilty plea."
The PCR court held defendant's "motion to withdraw his guilty plea
almost certainly would have failed" and that "even if he had been successful . . .
there was significant, compelling evidence of the defendant's guilt that could
have led to his conviction on this and other, more severe crimes."
II.
Defendant now appeals the PCR court's denial of relief. His brief raises
the following points:
POINT I
THE COURT BELOW ERRED IN DENYING [PCR]
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A. THE COURT BELOW ERRED BY
DECLINING TO APPLY THE STANDARD OF
PADILLA V. KENTUCKY TO COUNSEL'S
PERFORMANCE AT SENTENCING
B. DEFENDANT RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL UNDER
STRICKLAND v. WASHINGTON
C. AN EVIDENTIARY HEARING IS
NECESSARY TO DETERMINE WHETHER
COUNSEL PROVIDED INCORRECT ADVICE
TO DEFENDANT REGARDING THE
IMMIGRATION CONSEQUENCES OF HIS
CONVICTION
D. THE COURT BELOW ERRED BY
CONFLATING THE REQUIREMENTS FOR
GRANT OF PCR WITH THOSE FOR
WITHDRAWING A GUILTY PLEA
We consider these arguments mindful of well-established standards. The
Sixth Amendment of the United States Constitution guarantees a person accused
of crimes the effective assistance of legal counsel. Strickland v. Washington,
466 U.S. 668, 687 (1984). To establish a deprivation of that right, a convicted
defendant must satisfy the two-part test set forth in Strickland by demonstrating
that: (1) counsel's performance was deficient, and (2) the deficient performance
actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J.
42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In
reviewing such claims, courts apply a strong presumption that defense counsel
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"rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment." Strickland, 466 U.S. at 690.
These general principles have been extended by the United States
Supreme Court to the representation provided by a criminal defense attorney in
connection with a plea negotiation. Lafler v. Cooper, 566 U.S. 156, 162-63
(2012); Missouri v. Frye, 566 U.S. 134 (2012). To obtain relief, a defendant
must show with "reasonable probability" that the result would have been
different had defendant received proper advice from plea counsel. Lafler, 566
U.S. at 163; see also Hill v. Lockhart, 474 U.S. 52, 59 (1985) (articulating and
applying the "reasonable probability" test to such settings).
With respect to the present context regarding immigration consequences,
the Supreme Court has held that criminal defense attorneys are affirmatively
obligated to inform their clients about the deportation risks of entering a guilty
plea. Padilla, 559 U.S. at 367 (2010); see also Lee v. United States, 582 U.S.
357, 364-65 (2017) (holding that, when a defendant pled guilty prior to trial
based on incorrect advice from counsel about deportation consequences, the
court must determine "whether the defendant was prejudiced by the 'denial of
the entire judicial proceeding . . . to which he had a right'") (quoting Roe v.
Flores-Ortega, 528 U.S. 470, 483 (2000)).
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The PCR court correctly noted that the Supreme Court's 2010 opinion in
Padilla does not apply retroactively. Chaidez v. United States, 568 U.S. 342,
344 (2013); Gaitan, 209 N.J. at 371-72. For cases that preceded Padilla,
unconstitutionally ineffective assistance of plea counsel can only be established
where counsel provided affirmatively 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).
Here, defendant acknowledges that the increased responsibility imposed
on counsel by Padilla since 2010 does not apply retroactively to his plea
counsel's conduct in 2002. Instead, defendant's focus is on the performance of
his sentencing counsel in 2017, seven years after Padilla was decided.
Having considered the present record in light of these legal principles, we
conclude the record is inadequate to determine if the PCR court's denial of relief
is sound. There are significant questions of credibility that need to be addressed
and resolved that bear upon the performance of sentencing counsel and whether
defendant was prejudiced by any deficient performance.
Among other things, defendant has detailed numerous alleged failures on
the part of his sentencing counsel to adequately explain the deportation
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consequences of following through with his guilty plea and going forward with
the sentencing. Defendant's narrative, if it were true, evidences that his
sentencing counsel was not attentive to the mandatory nature of deportation
consequences flowing from a guilty plea of child endangerment. Under the post-
Padilla law, defense counsel in 2017 was obligated to apprise defendant of those
consequences. In addition, defendant alleges that his sentencing counsel
discouraged him from moving to withdraw his guilty plea, thereby depriving
him of a potential avenue to avoid conviction through a hypothetical acquittal at
trial.3
The record does not contain any certifications from defendant's multiple
sentencing counsel refuting defendant's allegations of what he was told and
advised. Nor is there an expert report from the State countering defendant's
expert about the mandatory deportation ramifications of the guilty plea.
Defendant's allegations are sufficiently plausible on their face to be indicative
of a prima facie case of ineffectiveness, and, as such, a plenary hearing is
appropriate. State v. Preciose, 129 N.J. 451, 462-63 (1992).
3
In essence, defendant contends his sentencing counsel should have argued to
the court words to this effect: "He wants to withdraw his guilty plea, Your
Honor, because if he’s convicted of this offense his deportation will be
mandatory, and he didn’t understand that until now."
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Given the credibility-dependent nature of these subjects, we conclude it is
most prudent that this matter be remanded for an evidentiary hearing to explore
the factual issues in more depth, ideally with testimony from defendant's
sentencing counsel and his own testimony, presumably presented remotely, in
accordance with State v. Santos, 210 N.J. 129, 141-143 (2012). After such a
plenary hearing, the trial court shall reconsider the matter and make pertinent
credibility findings and updated conclusions of law.
For the guidance of counsel and the trial court, we add the following .
First, the parties and the trial court should consider the legal ramifications of
defendant's flight from New Jersey after he had been told by the sentencing
judge to return for sentencing in October 2002. Defendant claims that his former
counsel failed to notify him of any upcoming court dates after he had presented
himself for the required pre-sentencing Avenel evaluation. The credibility of
that contention of ignorance should be tested at a plenary hearing. The record
is murky about exactly what transpired while defendant was in Ohio for over
fourteen years, and whether he had tried to conceal his whereabouts, or whether
he tried to contact his previous counsel during that lengthy interval.
In addition, the parties and the trial court should address whether as a
matter of law defendant's absence from the state until after Padilla was decided
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in 2010 should deprive him of the benefit of that precedent at his 2017
sentencing. The State and the PCR court cited no authority squarely on point.
It is possible that cognate principles under the doctrine of "fugitive
disentitlement" may pertain directly, or by analogy, to this question, but that
concept has not been briefed to us or developed below. We therefore refer that
issue to the trial court to be addressed after appropriate briefing.
Second, we conclude that an analysis of the Slater factors governing plea
withdrawals should be reassessed after the plenary hearing. In particular, the
second Slater factor, which focuses on the strength of a defendant's reasons for
seeking withdrawal, 198 N.J. at 159, may be affected by the credibility of his
narrative at the plenary hearing and by whether, in fact, he was actually
prejudiced by any deficient actions and inactions by his sentencing counsel. We
are mindful of instances in which a defendant has demonstrated
unconstitutionally ineffective assistance of counsel in connection with a
judgment of conviction derived from a guilty plea, where the remedy of plea
withdrawal has been utilized. See, e.g., State v. O'Donnell, 435 N.J. Super. 351,
375 (App. Div. 2014) (remanding the matter for an evidentiary hearing based on
defendant's claim of ineffective assistance of counsel and reconsideration of the
application to withdraw a guilty plea after the hearing).
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Third, we add our explicit recognition that this is an exceedingly old
matter dating back over twenty years. We concur with the PCR court's
observation that the State would be greatly prejudiced by an order vacating
defendant's conviction and necessitating the revival of a long-dormant
prosecution of a case with a child victim who presumably is now an adult. Even
so, given the tenor of defendant's claims of ineffective representation , we are
constrained to remand this matter for a plenary hearing to assure that his
conviction was not unconstitutionally tainted.
Remanded for an evidentiary hearing. We do not retain jurisdiction and
intimate no views on the appropriate outcome of the remand. Either party can
pursue a new appeal or a motion for leave to appeal, as the case may be,
following the remand.
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