STATE OF NEW JERSEY VS. REINIS GURVICS (09-01-0224, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2243-18T4
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
REINIS GURVICS,
Defendant-Respondent.
____________________________
Submitted August 1, 2019 – Decided August 7, 2019
Before Judges Whipple and Firko.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Hudson County,
Indictment No. 09-01-0224.
Esther Suarez, Hudson County Prosecutor, attorney for
appellant (Alanna M. Jereb, Assistant Prosecutor, on
the brief).
Michael J. Pastacaldi, attorney for respondent.
PER CURIAM
On leave granted, the State appeals from a December 5, 2018 order of the
Law Division granting defendant Reinis Gurvics's motion to withdraw his guilty
plea. We are constrained to reverse.
In 2008, police witnessed a man suspected to be in possession of a
controlled dangerous substance (CDS) enter defendant's car. The police pulled
defendant over and saw four bricks of heroin on the center console and several
more on the passenger's lap. Both men were arrested, and defendant was
charged with one count of third degree CDS possession, N.J.S.A. 2C:35-
10(a)(1); one count of second degree CDS distribution, N.J.S.A. 2C:35-5(b)(3);
one count of third degree of distribution within 1000 feet of a school, N.J.S.A.
2C:35-7; and one count of fourth degree distribution within 500 feet of a public
housing facility, N.J.S.A. 2C:35-7.1.
On October 29, 2010, defendant, a permanent resident born in Latvia, pled
guilty to one count of third degree possession with the intent to distribute heroin
within 1000 feet of a school zone, N.J.S.A. 2C:35-7. During his plea colloquy,
defendant was asked if he "would have given the [CDS] to somebody else[.]"
Defendant initially answered "no," but upon further questioning, admitted he
intended to distribute the CDS.
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The plea judge asked defendant if he could read and write in English and
defendant answered yes. The judge asked defendant if he was a United States
citizen and defendant testified he was not a citizen but had a green card. The
judge informed defendant he could be subject to deportation as a result of the
guilty plea. Counsel interjected and told the judge he discussed the issue with
defendant. Defendant checked off question 17(c) on his plea form, indicating
he was aware he could potentially be deported. Defendant testified he
understood the plea agreement.
The court sentenced defendant on February 4, 2011. The State reported
to the judge that defendant disputed the version of events contained in the
presentence report, saying, "[s]ome part I do remember, some part I don't
remember. I was intoxicated on beer and weed." However, during the
sentencing hearing, defendant reaffirmed the factual basis previously given.
Defendant was sentenced to two years' probation and has since
successfully completed his sentence. On April 25, 2018, defendant filed a
petition for post-conviction relief (PCR) and a motion to withdraw his guilty
plea because his conviction prompted the Department of Homeland Security to
file removal proceedings on August 24, 2016. See 8 U.S.C. § 1227(a)(2)(A)(iii).
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Defendant submitted two certifications in support of his petition. In the
first petition, dated April 19, 2018, defendant asserted his plea counsel was
ineffective because he did not advise him of the immigration consequences of
his guilty plea. In the second certification, dated September 30, 2018, defendant
asserted his trial attorney told him his co-defendant had given a statement
implicating defendant, but his attorney turned out to be misinformed. Defendant
claimed he relied on that representation in deciding to accept the plea deal and
would otherwise not have pled guilty. Defendant also asserted that he was never
advised he was entitled to a Latvian interpreter and his trial lawyer rushed
through the plea forms, which he had difficulty understanding. He asked the
PCR court to grant his petition and vacate the conviction for the matter to be
restored to the trial calendar.
The PCR judge denied defendant's ineffective assistance of counsel claim,
saying defendant's claims of ineffective assistance are "mere bald assertions"
that did not require an evidentiary hearing and rejected defendant's assertion that
he could not understand the proceedings at the time of his plea without a Latvian
interpreter.1
1
The judge also relaxed the PCR time-bar. R. 3:22-12(a)(1).
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However, the court granted defendant's plea withdrawal motion. The PCR
judge applied the State v. Slater, 198 N.J. 145 (2009), factors and considered the
discussion of the immigration consequences of defendant's plea during the plea
colloquy to be the "central manifest injustice." She "wonder[ed]" if it was
possible "that petitioner thought that he could only be deported during the term
of his probation." The PCR judge afforded factor three of the Slater test little
weight and found factor four, unfair prejudice to the State, to be insubstantial
because the facts of the case were simple.
The State moved for leave to appeal, which we granted, and this appeal
followed. The State raises the following argument:
POINT I
THE TRIAL COURT ERRED IN GRANTING
DEFENDANT'S MOTION TO WITHDRAW HIS
GUILTY PLEA BECAUSE DEFENDANT FAILED
TO MEET THE HIGH STANDARD FOR POST-
SENTENCING PLEA WITHDRAWAL UNDER
[SLATER].
Granting a guilty plea withdrawal "is a matter within the broad discretion
of the trial court." State v. Simon, 161 N.J. 416, 444 (1999).
"[T]he trial court's denial of defendant's request to
withdraw his guilty plea will be reversed on appeal only
if there was an abuse of discretion which renders the
lower court's decision clearly erroneous." "A denial of
a motion to vacate a plea is 'clearly erroneous' if the
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evidence presented on the motion, considered in light
of the controlling legal standards, warrants a grant of
that relief." Our Supreme Court has found a mistaken
exercise of discretion in denying a motion to withdraw
a plea where the court exercised a "clear error of
judgment."
[State v. O'Donnell, 435 N.J. Super. 351, 372 (App.
Div. 2014) (quoting Simon, 161 N.J. at 444; State v.
Munroe, 210 N.J. 429, 448 (2012); and State v.
Mustaro, 411 N.J. Super. 91, 99 (App. Div. 2009))].
"A motion to withdraw a plea of guilty or non vult shall be made before
sentencing, but the court may permit it to be made thereafter to correct a
manifest injustice." R. 3:21-1; see also Slater, 198 N.J. at 156 (explaining that
a defendant seeking to withdraw a plea following sentencing "must show [his or
her] conviction was manifestly unjust"). A defendant's burden of proof in a
motion to withdraw a guilty plea increases the longer the delay in bringing the
motion because "the court weighs more heavily the State's interest in finality
and applies a more stringent standard." O'Donnell, 435 N.J. Super. at 370
(quoting State v. Norman, 405 N.J. Super. 149, 160 (App. Div. 2009)). If a
motion to withdraw a guilty plea is made after sentencing, the movant must show
a "manifest injustice." Id. at 368 (quoting R. 3:21-1).
Although a PCR petition and plea withdrawal motion may overlap, "a
court must nonetheless view the applications separately, and must avoid
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conflating the two." Id. at 371. "While such a defendant might have no viable
claim for PCR based on ineffective assistance, he or she conceivably could have
a viable plea withdrawal motion, based on a colorable claim of innocence and
compelling reasons for seeking withdrawal." Ibid.
A trial judge reviewing a plea withdrawal motion should balance the
following factors: "(1) whether the defendant has asserted a colorable claim of
innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3)
the existence of a plea bargain; and (4) whether withdrawal would result in
unfair prejudice to the State or unfair advantage to the accused." Slater, 198
N.J. at 157-58. "Consideration of a plea withdrawal request can and should
begin with proof that before accepting the plea, the trial court followed the
dictates of Rule 3:9-2." Id. at 155. The Rule requires the court to determine if
"there is a factual basis for the plea and that the plea is made voluntarily, not as
a result of any threats or of any promises or inducements not disclosed on the
record, and with an understanding of the nature of the charge and the
consequences of the plea." Ibid. (quoting R. 3:9-2). The analysis of a plea
withdrawal application, however, "cannot end there." Ibid.
When a defendant alleges he or she accepted a plea bargain without full
information, the court should "consider[] whether the defendant reasonably
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would have made a different choice had the State conveyed the missing . . .
information." State v. O'Driscoll, 215 N.J. 461, 477 (2013). If the defendant
alleges he or she would not have pled guilty if he or she had been aware of the
immigration consequences, the defendant must put forward facts tending to
show the information would have changed their plea decision. See, e.g., State
v. Johnson, 182 N.J. 232, 244 (2005) ("[D]efendant must demonstrate how the
omission of information about [the No Early Release Act] materially affected
his decision to plead guilty.").
Here, the PCR judge's analysis of the Slater factors are unsupported by
the record and inconsistent with her finding that defendant's certification
contained "mere bald assertions." In considering the first Slater factor, "a court
should not decide the likelihood of the defense prevailing. Rather, the issue is
whether defendant raised a colorable claim of innocence that should rightly have
been decided by a jury." O'Donnell, 435 N.J. Super. at 373 (citation omitted)
(quoting Munroe, 210 N.J. at 446). Here, the PCR judge made no finding of a
colorable claim of innocence. Instead, the PCR judge inferred, based on the plea
transcript and arguments raised in defendant's PCR brief without evidential
support, that defendant intended to contest liability but was convinced by his
plea counsel to accept the plea. The PCR judge noted that in the plea transcript
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defendant initially alleged he had no intent to distribute; however, she ignored
defendant's subsequent statement under oath that he did intend to distribute and
she made no particular finding that "specific, credible facts . . . buttress[ed]
[defendant's] claim." Slater, 198 N.J. 158. The PCR judge essentially
speculated, without sworn testimony, that defendant's plea counsel pressured
him into accepting the guilty plea.
"The second factor 'focuses on the basic fairness of enforcing a guilty plea
by asking whether defendant has presented fair and just reasons for withdrawal,
and whether those reasons have any force.'" State v. Williams, 458 N.J. Super.
274, 282 (App. Div. 2019) (quoting Slater, 198 N.J. at 159). "One such reason
is 'defendant's reasonable expectations under the plea agreement were not met.'"
Ibid. (quoting Slater, 198 N.J. at 159). In his certification, defendant asserted
his plea counsel "failed to appropriately advise [him] of the immigration
consequences of [his] guilty plea[.]" Yet, nowhere in the record does defendant
state, specifically, that he did not fully understand that by pleading guilty he
could face deportation. Nevertheless, the PCR judge "wonder[ed] if . . .
[defendant] thought that he could only be deported during the term of his
probation" despite also finding "[defendant] was well aware from his plea form
that he could be deported based on his guilty plea."
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We discern nothing in the record tending to show defendant did not
understand the immigration consequences of his guilty plea. There is no sworn
testimony wherein he asserts he received incorrect advice on his immigration
status or that he did not fully understand he could be deported as a result of his
guilty plea. Defendant was required to do more than make conclusory assertions
that he did not understand he could be deported to overcome the fact that his
plea form and the plea colloquy indicate otherwise. See O'Donnell, 435 N.J.
Super. at 375 (requiring defendant to make more than a "bald assertion" to
satisfy factor two); see also State v. Nunez-Valdez, 200 N.J. 129, 144 (2009)
(requiring the question "if your plea of guilty is to a crime considered an
aggravated felony under federal law you will be subject to deportation/removal"
to be added to the plea form). The PCR judge's inference that based on the plea
colloquy petitioner may have thought he could only be deported while he was
on probation has no evidential basis in the record.
Having reviewed the record, we conclude the December 5, 2018 order
granting defendant's motion to withdraw his plea was clearly erroneous and an
abuse of discretion because the evidence presented on the motion, considered in
light of the controlling legal standards, did not warrant a grant of that relief.
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Reversed and remanded to the trial court to reinstate the conviction
consistent with this opinion. We do not retain jurisdiction.
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