STATE OF NEW JERSEY VS. FERNANDO CASTRO (99-09-0899, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-3684-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FERNANDO CASTRO, a/k/a
BOLOS,
Defendant-Appellant.
____________________________
Submitted February 12, 2019 – Decided August 1, 2019
Before Judges Gilson and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 99-09-0899.
Ronald P. Mondello, attorney for appellant.
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh, Chief
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Fernando Castro appeals from a March 15, 2018 order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing and
his motion to withdraw his guilty plea. We reverse the portion of the order
denying defendant's PCR petition, and remand for an evidentiary hearing to
address his claim of ineffective assistance of counsel based on his trial counsel's
alleged affirmative misrepresentations regarding the immigration consequences
of his guilty plea. We affirm, however, the March 15, 2018 order to the extent
it determined that defendant's trial counsel was not ineffective for failing to
appeal defendant's rejection from the Pre-Trial Intervention Program (PTI), or
for failing to negotiate a purported "immigration safe plea." We also affirm the
court's denial of defendant's motion to withdraw his guilty plea.
I.
When he was eleven years old, defendant came to the United States from
Mexico without immigration papers. Eight years later, defendant, along with
two other individuals, was arrested for attacking and striking M.D.1 with a belt
and metal pipe. Defendant was charged with third-degree aggravated assault
with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); third-degree possession of a
1
We use initials for M.D. and G.S. to protect their privacy.
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2
weapon for unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(d).
Defendant pled guilty to third-degree aggravated assault with a deadly
weapon. In accordance with the plea agreement, the court dismissed defendant's
other charges, and sentenced him to three years of probation, with time served
of 124 days in jail. He was also ordered to pay restitution of $1613. Defendant
did not appeal his sentence. The facts regarding the underlying offense are
briefly recounted here to provide context for our opinion.
II.
On June 23, 1999, defendant was walking in Passaic with then
co-defendants, Freddy Perez and Alberto Benitez, when they approached M.D.
and his girlfriend, G.S. Perez and Benitez began to fight with M.D., and hit him
with a belt and a stick. Defendant joined the fight and struck M.D. with a metal
pipe. The police arrived and observed that M.D. was bleeding from a wound to
his head. Defendant was arrested that day, and later admitted to the police that
he hit M.D. twice with the pipe, and that he believed he hit him in the head.
Defendant applied for entry into PTI, but was rejected for three reasons.
The PTI Director explained that first, the nature of the offense was "serious,"
and therefore "the needs and interests of the victim and society," which
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outweighed the "value of supervisory treatment," "would best be served by
pursuing prosecution." Second, the PTI Director found significant defendant's
failure to recognize his full responsibility for the offense. Specifically, he noted
that defendant shifted "substantial blame" to M.D., alleging that M.D. had a
knife and attacked one of the co-defendants. Finally, the PTI Director concluded
that defendant demonstrated a "pattern of disregard for the laws and/or rules of
U.S. society."
The PTI Director explained that defendant entered the country illegally
and admitted to being a past member of a Mexican gang in Passaic.
Additionally, while defendant denied presently being a gang member, he
admitted "that he hangs out with his cousins and nephews who are current gang
members." Accordingly, the PTI Director stated that he "cannot reasonably
assure the [c]ourt that defendant will not continue to become involved in further
illegal conduct." Defendant's trial counsel did not appeal the PTI Director's
decision.
As noted, defendant entered into a negotiated plea agreement on
November 15, 1999, and pled guilty to third-degree aggravated assault with a
deadly weapon. The State agreed to recommend a sentence of probation with
the possibility of up to 364 days in county jail and dismissal of the remaining
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charges. On the plea form, defendant responded affirmatively to question
seventeen, 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?"
Defendant signed and dated the third page of the plea form, and initialed the
first and second pages.
At the plea hearing on the same day, defendant admitted to hitting M.D.
with a belt while Benitez was also hitting M.D. Defendant's counsel asked
defendant if "anybody promise[d] [him] anything besides what's in the plea
agreement to get [him] to plead guilty," and defendant responded "No."
Additionally, the following colloquy occurred between defendant and his
counsel:
[COUNSEL]: It's also possible, because you don't have
a green card, that the immigration service could decide
to [deport] you. I explained that to you, did I not?
DEFENDANT: Yes.
[COUNSEL]: You understand that?
DEFENDANT: Yes.
[(Emphasis added).]
A-3684-17T1
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On February 4, 2000, defendant was sentenced to three years of probation,
with time served of 124 days, and ordered to pay M.D. $1613 in restitution. The
court entered a Judgment of Conviction (JOC) on the same day.
Before the PCR court, defendant's PCR counsel represented that defendant
"had no idea that he was deportable" as a result of his conviction until he sought
counsel's services to "file a green card application based on his marriage to a
U.S. citizen." PCR counsel stated that he "immediately told [defendant] that he
was going to be deported if he filed that application." Approximately eight
months after his meeting with PCR counsel, and seventeen years after the entry
of his JOC, on October 18, 2017, defendant filed his PCR petition and a motion
to withdraw his guilty plea.
In his PCR petition, defendant asserted that his trial counsel gave
"misadvice as to the immigration consequences" of his plea. Specifically,
defendant contended that his counsel affirmatively misrepresented that "as long
as [he] did not go to prison, [he] . . . would not be deported." In his October 13,
2017 affidavit in support of his petition, defendant asserted that he "would
NEVER have pled guilty if [he] thought [he] was going to be deported," and that
he "would have taken [his] chances and gone to trial had [he] known" he'd be
deported. Additionally, defendant claimed his counsel failed to insist defendant
A-3684-17T1
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"seek . . . advice from an immigration attorney," file a motion for the court to
determine whether defendant was "a good candidate for PTI," and file various
pre-trial evidentiary motions.
The PCR court heard oral arguments on March 15, 2018, and denied
defendant's petition and motion to withdraw his plea. First, in considering
whether defendant's PCR petition was time barred by Rule 3:22-12(a)(1), the
PCR judge, who was also the sentencing judge, found significant that defendant
responded affirmatively to question seventeen in the plea form, and indicated at
the plea hearing that he understood that he may be deported if he pled guilty.
Additionally, the court noted that the State indicated in its brief that "if relief
was given to defendant[,] [it] could not proceed with the case because of the
time lapse, [and] consequently, it would suffer prejudice." Accordingly, the
court determined defendant's petition was time barred because it was "not
satisfied . . . that the interest of justice demand that the . . . rule be relaxed ."
The PCR judge, nevertheless, discussed the merits of defendant's claims.
With respect to defendant's claim that plea counsel affirmatively misinformed
him of the immigration consequences of his plea, the court concluded that "[i]n
light of being advised at the plea hearing that he may be deported if he pled
guilty, defendant's general statement that his attorney told him he would not be
A-3684-17T1
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deported if he did not receive a jail sentence is insufficient to demonstrate
deficient performance."
Further, the court "f[ound] that defendant ha[d] not shown that . . . had he
known that [his trial counsel's] advice was incorrect he would not have pled
guilty." Additionally, the court stated that because defendant was on bail and
not incarcerated at the time of his plea, there was "no pressure on him to plead
guilty," and the plea was made voluntarily. Accordingly, the court concluded
that because defendant's "bare allegation [was] not . . . substantiated by other
facts [in] the record[,] . . . [he] ha[d] not demonstrated a prima facie case
requiring an evidentiary hearing."
With respect to defendant's assertion that his trial counsel was ineffective
because he "failed to file a motion to admit [him] into [PTI]," the court
determined the "contention lacks merit." The court noted the PTI Director's
bases for rejecting defendant, and concluded there was no "patent and gross
abuse of discretion."
Finally, the court addressed defendant's motion to withdraw his guilty plea
and applied the four factors detailed in State v. Slater, 198 N.J. 145, 157-58
A-3684-17T1
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(2009).2 Specifically, as to factor one, the court "place[d] no weight on
defendant's current claim of innocence." With respect to factor two, the court
restated its previous conclusion that defendant's trial counsel was not
ineffective. In considering factor three, the court noted that "the other charges
of the indictment were dismissed and . . . defendant . . . received a probationary
sentence." Finally, as to factor four, the court stated that "it's [been] nearly
twenty years [since the incident] and it's very doubtful that the State could really
pick up and try this case at this point is time." Thus, after balancing the four
Slater factors, the court "[did] not find . . . a manifest injustice such [that]
defendant should be permitted to withdraw his guilty plea." Accordingly, in a
March 15, 2018 order, the court denied defendant's petition for PCR and motion
to withdraw his guilty plea. This appeal followed.
2
As stated in Slater, a court evaluating motions to withdraw a guilty plea must
"consider and 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.
[Ibid.]
A-3684-17T1
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III.
Defendant raises the following issues on appeal, which we have
renumbered for ease of reference:
POINT I
THE TRIAL COURT ERRED IN FINDING THAT
THE DEFENDANT'S DELAY IN FILING THE
PETITION WAS NOT DUE TO EXCUSABLE
NEGLECT AND THAT THE DEFENDANT'S
PETITION WAS FILED WITHIN ONE YEAR OF
DISCOVERING THE FACTUAL PREDICATE FOR
THE RELIEF SOUGHT PURSUANT TO RULE
3:22-12(a)(2)(B)
A. PETITIONER HAS ESTABLISHED
EXCUSABLE NEGLECT
B. ENFORCEMENT OF THE TIME BAR WOULD
RESULT IN A FUNDAMENTAL INJUSTICE
C. THERE IS NO TIME LIMITATION
ASSOCIATED WITH A MOTION TO
WITHDRAW A GUILTY PLEA
POINT II
THE DEFENDANT WAS DENIED HIS UNITED
STATES CONSTITUTIONAL RIGHT AND NEW
JERSEY STATE RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AND TO DUE
PROCESS AS GUARANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION AND BY ARTICLE I,
PARAGRAPH X OF THE NEW JERSEY STATE
CONSTITUTION DUE TO COUNSEL'S:
A-3684-17T1
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1) ERRONEOUS ADVICE AS TO THE
CONSEQUENCE OF HIS PLEA; 2) FAILURE TO
FILE AN APPEAL TO BE ADMITTED TO THE
PRE-TRIAL INTERVENTION PROGRAM; 3)
FAILURE TO FILE A MOTION TO ADMIT
DEFENDANT INTO THE PRE-TRIAL
INTERVENTION PROGRAM; 4) FAILURE TO FILE
ANY PRE-TRIAL MOTIONS OR TO CONTEST IN
ANY WAY THE STATE'S CASE; AND 5) FAILURE
TO NEGOTIATE A "SAFE HAVEN"; A
PRESUMPTION OF PREJUDICE EXISTS, OR, AT
THE VERY LEAST, A REASONABLE
PROBABILITY EXISTS THAT BUT FOR THE
ERRORS THE RESULT OF THE PROCEEDINGS
WOULD HAVE BEEN DIFFERENT; THE
DEFENDANT'S CONVICTION SHOULD BE
VACATED
POINT III
PURSUANT TO STATE V. SLATER, 198 N.J. 145
(2009), DEFENDANT MEETS THE "MANIFEST
INJUSTICE" FOUR FACTOR BALANCING TEST IN
ORDER TO WITHDRAW A GUILTY PLEA
IV.
Defendant first maintains that the PCR court committed error when it
concluded that his PCR petition was time barred. Specifically, defendant asserts
that he has established excusable neglect for the delay in filing his petition, and
thus, the time bar should be relaxed.
Pursuant to Rule 3:22-12(a)(1), PCR petitions must be filed within five
years from the date of entry of the JOC. The rule encourages litigants to
A-3684-17T1
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promptly file for PCR, and serves two primary functions. State v. Murray, 162
N.J. 240, 249 (2000). "First, the passing of time after a conviction increases the
difficulties associated with a fair and accurate reassessment of the events." Ibid.
"Second, respect for the finality of judgments and the undesirable uncertainty
fostered by unlimited relitigation support the enforcement of a time bar on
petitions." Ibid.
Rule 3:22-12(a)(1)(A) waives the time bar, however, if "facts showing
that the delay beyond said time was due to defendant's excusable neglect and
that there is a reasonable probability that if the defendant's factual assertions
were found to be true enforcement of the time bar would result in a fundamental
injustice." To demonstrate "excusable neglect," a defendant must provide more
than "simply . . . a plausible explanation for a failure to file a timely PCR
petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). "If the
petitioner does not allege sufficient facts, the [r]ule bars the claim." State v.
Mitchell, 126 N.J. 565, 576 (1992).
To determine whether a defendant has asserted a
sufficient basis for relaxing the Rule's time restraints,
we "should consider the extent and cause of the delay,
the prejudice to the State, and the importance of the
petitioner's claim in determining whether there has
been an 'injustice' sufficient to relax the time limits."
A-3684-17T1
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[Norman, 405 N.J. Super. at 159 (quoting State v.
Afanador, 151 N.J. 41, 52 (1997)).]
"Absent compelling, extenuating circumstances, the burden to justify filing a
petition after the five-year period will increase with the extent of the delay."
State v. Milne, 178 N.J. 486, 492 (2004) (quoting Afanador, 151 N.J. at 52).
We conclude that an evidentiary hearing is necessary to determine
whether defendant has established excusable neglect and if enforcement of the
time bar would result in a fundamental injustice. While the PCR court
concluded it was "not satisfied . . . that the interest of justice demand that the
. . . [time bar] be relaxed," it made no specific findings with respect to
defendant's statement that his trial counsel affirmatively misled him. Moreover,
defendant asserts that the seventeen year delay from the time of his February 4,
2000 JOC to the filing of his PCR petition was excusable because he was
affirmatively misinformed concerning the immigration consequences of his
plea, and had no reason to suspect that he received ineffective assistance of
counsel until he consulted with PCR counsel to apply for a green card.
Defendant stated in his certification that he "recently found out" that he was
"misadvised as to the consequences of [his] plea." As noted, before the PCR
A-3684-17T1
13
court, defendant's PCR counsel stated that in February 2017 he informed
defendant that he was subject to mandatory deportation.3
In support of its claim that defendant's petition is time barred, the State
relies on our decision in State v. Brewster, 429 N.J. Super. 387, 400 (App. Div.
2013), in which we stated that a "[d]efendant cannot assert excusable neglect
simply because he received inaccurate deportation advice from his defense
counsel." The State further relies on the Brewster court's statement that "[i]f
excusable neglect for late filing of a petition is equated with incorrect or
incomplete advice, long-convicted defendants might routinely claim they did
not learn about the deficiencies in counsel's advice on a variety of topics until
after the five-year limitation period had run." Ibid.
This case, however, is distinguishable from Brewster. In that case, the
defendant's trial counsel predicted that there would be no "issue with
immigration" as a result of his conviction. Id. at 395. The court concluded that
in light of the "attendant circumstances in 1998," when federal deportation law
was "on the cusp of modification," defendant's counsel's statement, along with
the deportation warning in question seventeen of the plea form, "was not
3
We note that in defendant's brief on appeal, he asserts that he consulted with
PCR counsel in March 2017.
A-3684-17T1
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unreasonable advice or outside the norms of the profession." Id. at 397-98. The
Brewster court stated that the "defense counsel could not have reasonably
predicted the certainty or even likelihood of defendant's deportation." Id. at 397.
Additionally, in that case, the defendant became aware of the immigration
consequences of his plea three years prior to filing his PCR petition when he
consulted an attorney who advised him that his conviction "could be a problem."
Id. at 399-400.
Here, in contrast, defendant certified that his counsel stated that he would
not face deportation "as long as [he] did not go to prison," which is an
affirmative misrepresentation of the immigration consequences of defendant's
plea. As detailed in subsection A of this decision, defendant's deportation was
mandatory as a result of his guilty plea. Further, defendant asserts that he filed
his PCR petition less than a year after becoming aware that he was subject to
mandatory deportation.
Defendant also argues in the alternative that, pursuant to Rule
3:22-12(a)(2)(B), he properly filed his PCR petition within one year of
consulting with his PCR counsel regarding a green card application and learning
that his conviction subjected him to mandatory deportation.
A-3684-17T1
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Rule 3:22-12(a)(2)(B) states in pertinent part that "no second or
subsequent petition shall be filed more than one year after . . . the date on which
the factual predicate for the relief sought was discovered, if that factual predicate
could not have been discovered earlier through the exercise of reasonable
diligence." R. 3:22-12(a)(2)(B). Although the rule "refers to a 'second or
subsequent petition[,]' . . . the one-year supplemental period should apply as
well to a first petition filed beyond the five-year limitation period of subsection
(a)(1)." Brewster, 429 N.J. Super. at 399 n.4. "To determine whether the
one-year supplemental period applies to a particular PCR petition, the trial court
would have to make a threshold finding that the petition shows . . . a new 'factual
predicate' that could not have been discovered earlier through the exercise of
reasonable diligence." Ibid. Thus, on remand, the trial court should assess
whether defendant has established a factual predicate to warrant the application
of Rule 3:22-12(a)(2)(B).
V.
We next discuss the merits of defendant's ineffective assistance of counsel
claims. As noted, defendant primarily maintains that his trial counsel was
ineffective because he affirmatively misadvised defendant that he would not be
subject to deportation as a result of his guilty plea as long as he was not
A-3684-17T1
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sentenced to a period of incarceration. Defendant further asserts that his counsel
was ineffective by failing to appeal his rejection from PTI, or file a motion to
admit him into PTI. Finally, defendant contends counsel was constitutionally
deficient based on his trial counsel's failure to negotiate a plea to an offense that
did not subject him to mandatory deportation. We address each of these claims
separately. 4
As defendant's PCR petition is based on his claim that trial counsel
rendered ineffective assistance, he must satisfy the two-part test pronounced in
Strickland v. Washington, 466 U.S. 668, 687 (1984). The first prong requires a
showing that "counsel's representation fell below an objective standard of
reasonableness." Id. at 688. In other words, a defendant must show "that
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." Id. at 687; see also State
v. Fritz, 105 N.J. 42, 58 (1987).
4
Defendant asserted in his PCR petition that trial counsel was ineffective by
failing to file nine pre-trial evidentiary motions. Defendant, however, fails to
raise these issues in his brief on appeal, and accordingly, we consider them
waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011)
("An issue not briefed on appeal is deemed waived.").
A-3684-17T1
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Under the second prong, a defendant must demonstrate that his counsel's
"deficient performance prejudiced the defense" to the extent that it "deprive[d]
the defendant of a fair trial." Strickland, 466 U.S. at 687. To establish this
prong, a defendant must demonstrate "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Id. at 694.
A. Affirmative Misadvice
In 2009, our Supreme Court held in State v. Nunez-Valdez, 200 N.J. 129
(2009), that "a defendant can show ineffective assistance of counsel by proving
that his guilty plea resulted from 'inaccurate information from counsel
concerning the deportation consequences of his plea.'" Brewster, 429 N.J.
Super. at 392 (quoting Nunez-Valdez, 200 N.J. at 143). In 2010, the United
States Supreme Court in Padilla v. Kentucky, 559 U.S. 356 (2010), ruled that
counsel's duty includes not only avoiding "false or misleading information" as
stated in Nunez-Valdez, but also the affirmative duty to inform a defendant
entering a guilty plea with respect to the relevant mandatory deportation law if
it is "succinct, clear, and explicit." Padilla, 559 U.S. at 368.
The Padilla Court held that counsel's "failure to advise a noncitizen client
that a guilty plea will lead to mandatory deportation deprives the client of the
A-3684-17T1
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effective assistance of counsel guaranteed by the Sixth Amendment." State v.
Barros, 425 N.J. Super. 329, 331 (App. Div. 2012) (citing Padilla, 559 U.S. at
369). However, because Padilla "announced a new rule" and is therefore "not
entitled to retroactive effect," for convictions entered before the decision in
Padilla, "Nunez-Valdez still governs the standard of attorney performance in
New Jersey in ineffective assistance of counsel claims on collateral review."
State v. Gaitan, 209 N.J. 339, 373-74 (2012).
Here, defendant's claims are governed by the Nunez-Valdez standards,
and therefore trial counsel had no duty to inform defendant that as a consequence
of his plea, he would be deported. Rather, counsel was obligated to avoid
providing inaccurate or misleading information regarding the immigration
consequences of defendant's plea. See State v. Santos, 210 N.J. 129, 143 (2012)
("Petitions challenging the entry of guilty pleas prior to Padilla on ineffective
assistance of counsel grounds must be assessed under the law as it existed under
[Nunez-Valdez], which instead focuses on whether counsel provided affirmative
misadvice regarding the immigration consequences of a guilty plea.")
Applying these principles, we are persuaded that an evidentiary hearing is
appropriate to test defendant's assertions of ineffective assistance of counsel and
resulting prejudice. As noted, because the PCR court resolved the motion
A-3684-17T1
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without an evidentiary hearing, it made no specific findings, credibility or
otherwise, with respect to his trial counsel's alleged statement that defendant
would not be deported "as long as [he] did not go to prison." Defendant's
confirmatory response to question seventeen of the plea form indicated that he
understood that he "may be deported" as a result of his guilty plea is consistent
with a fair reading of defendant's certification in which he stated that he
believed, due to his attorney's misadvice, that so long as he was not sentenced
to a prison term, he would not be deported.
As defendant's brief asserts, at the time of his plea, he was immediately
deportable as a result of his conviction of third-degree aggravated assault with
a deadly weapon, which is a crime of "moral turpitude." 5 See 8 U.S.C. §
1182(a)(2)(A)(i)(I) (stating a non-citizen convicted of a "crime involving moral
turpitude" is "inadmissible"); Matter of Medina, 15 I. & N. Dec. 611, 614 (B.I.A.
1976) (explaining that aggravated assault with a deadly weapon is "generally
deemed to be a crime involving moral turpitude"); Matter of Ptasi, 12 I. & N.
Dec. 790 (B.I.A. 1968) ("We concluded that the offense of assault with a deadly
5
The State has not provided contrary legal authority to dispute defendant's
contention that in 2000, his conviction of third-degree aggravated assault with a
deadly weapon was a crime of moral turpitude rendering him immediately
deportable.
A-3684-17T1
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or dangerous weapon (not named) in violation of section 6195 of the General
Statutes of Connecticut, involved moral turpitude."); Matter of G–R–, 2 I. & N.
Dec. 733 (B.I.A. 1946) ("[O]ur courts have held that a wilful assault with a
dangerous weapon involves moral turpitude."); see also Partyka v. Attorney
Gen. of U.S., 417 F.3d 408, 414 (3d Cir. 2005) ("[T]he hallmark of moral
turpitude is a reprehensible act committed with an appreciable level of
consciousness or deliberation."). Further, we note that defendant's trial
counsel's questioning at the November 15, 1999 plea hearing in which he
suggested that it was "possible" that defendant could be deported due to his lack
of a green card does not reflect the fact that he was immediately deportable.6
As to the second Strickland prong, we conclude there was sufficient
evidence in the record to establish a prima facie claim of prejudice, that is, as a
result of the alleged ineffective assistance of counsel, defendant "would not have
plead guilty and would have insisted on going to trial." Nunez-Valdez, 200 N.J.
at 139. In this regard, defendant certified that he "would have taken [his]
chances at trial had [he] known that [he] would [be] deported," and that he
6
We also note that at the plea hearing, counsel reported to the court that
defendant was "in the ninth year of a ten year wait to get his green card." There
is no evidence in the record to support counsel's statement that defendant was
ever eligible for a green card.
A-3684-17T1
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"would have rather risked spending a period of time in jail as opposed to a
life-sentence stuck in Mexico." As the PCR court acknowledged, defendant had
no prior arrests or convictions and enjoyed a "presumption of
non[-]incarceration."
Thus, the potential consequences of conviction after trial were not so
severe as to render implausible his claim that he would have rejected the plea
offer. Accordingly, we conclude defendant is entitled to an evidentiary hearing
for the PCR court to determine whether he can established that "counsel's
representation fell below an objective standard of reasonableness" and that "but
for counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 688, 694.
Based upon the testimony presented at the evidentiary hearing, the court
should make necessary credibility findings with respect to defendant's claim that
his counsel made the aforementioned affirmative misstatements regarding the
immigration consequences of his plea. In addition, the court should make
findings with respect to any prejudice visited upon the State or defendant.
Finally, the court should address whether the evidence presented by defendant
established excusable neglect for his seventeen year delay, and if enforcement
of the time bar would result in a fundamental injustice. We specifi cally note
A-3684-17T1
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that by ordering the evidentiary hearing we are not expressing any view as to
the outcome of the proceeding.
B. Failure to Appeal from PTI Rejection or Move to Admit Defendant into
PTI
We reject, however, defendant's assertion that his trial counsel was
ineffective for failing to "fil[e] a motion to admit defendant into the [PTI]
program," or "fil[e] an appeal with the lower court to accept him into PTI over
the [PTI] Director's objection." We note that "[i]n order to overturn a
prosecutor's rejection, a defendant must 'clearly and convincingly establish that
the prosecutor's decision constitutes a patent and gross abuse of discretion. '"
State v. Watkins, 193 N.J. 507, 520 (2008). Further, "[t]he scope of judicial
review of PTI decisions is 'severely limited[,]' and interference by reviewing
courts is reserved for those cases where needed 'to check . . . the "most egregious
examples of injustice and unfairness."'" State v. Lee, 437 N.J. Super. 555, 563
(App. Div. 2014) (second and third alterations in original) (quoting State v.
Negran, 178 N.J. 73, 82 (2003)).
The trial court discussed the PTI Director's bases for rejecting defendant
and concluded that, based on the PTI Director's findings, it "would not have
overturned [the PTI Director's] decision based upon a patent and gross abuse of
discretion." Further, the record contains no basis to conclude that the PTI
A-3684-17T1
23
Director's decision constituted a gross abuse of discretion, or that counsel's
failure to challenge the decision was deficient under the first Strickland prong.
See Lee, 437 N.J. Super. at 563 (quoting State v. Bender, 80 N.J. 84, 93 (1979)
("If a defendant rejected for PTI can prove that the denial '(a) was not premised
upon a consideration of all relevant factors, (b) was based upon a consideration
of irrelevant or inappropriate factors, or (c) amounted to a clear error in
judgment[,]' then an abuse of such discretion would 'be manifest.'" )).
C. Failure to Negotiate for an Immigration Safe Plea
We also disagree with defendant's assertion that his trial counsel rendered
ineffective assistance because he "failed to negotiate an immigration safe plea
for [defendant] despite the ready availability of an alternative." Defendant
primarily relies on Kovacs v. United States, 744 F.3d 44, 52 (2d Cir. 2014), in
which the court concluded:
a defense lawyer's incorrect advice about the
immigration consequences of a plea is prejudicial
[under the second Strickland prong] if it is shown that,
but for counsel's unprofessional errors, there was a
reasonable probability that the petitioner could have
negotiated a plea that did not impact immigration status
or that he would have litigated an available defense.
Here, defendant provides no legal or factual support for his assertion that the
State would have offered a plea to defendant to an offense, "such as simple
A-3684-17T1
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assault or simple possession of [a] weapon," such that he could avoid being
"mandatorily deportable."
VI.
Finally, defendant asserts that the PCR court erroneously balanced the
four Slater factors in denying his motion to withdraw his guilty plea. Defendant
maintains that a balancing of the factors demonstrates a "manifest injustice" and
his motion should have been granted. We disagree, and affirm for substantially
the reasons expressed by the PCR judge. We offer only the following brief
comments.
As noted, in exercising its discretion to decide a motion to withdraw a
guilty plea, courts "are to consider and balance four 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. "No one factor
is dispositive, nor must a movant satisfy all four." State v. O'Donnell, 435 N.J.
Super. 351, 369 (App. Div. 2014). "Consideration of a plea withdrawal request,"
however, "can and should begin with proof that before accepting the plea, the
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trial court followed the dictates of Rule 3:9-2," ibid. (quoting Slater, 198 N.J. at
155), which:
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).]
While a motion to withdraw a plea should be made before sentencing,
under Rule 3:21-1, courts "may permit it to be made thereafter to correct a
manifest injustice." Courts considering motions filed after sentencing apply "a
more stringent standard" and "weigh[] more heavily the State's interest in
finality." State v. McQuaid, 147 N.J. 464, 487 (1997). Accordingly, "the longer
a defendant delays in seeking to withdraw a plea, the greater burden he or she
will bear in establishing 'manifest injustice,' because the prejudice to the State
under prong four will generally increase." O'Donnell, 435 N.J. Super. at 370.
Additionally, "a defendant's reasons for delay may also weigh against relief
under factor two." Ibid. A "fair and just reason for withdrawal" under factor
two will be found where a "defendant was not informed and thus did not
understand material terms and relevant consequences of the guilty plea, namely,
the direct, penal consequences of the plea." Slater, 198 N.J. at 159. We note
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that a "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." Id. at 372 (quoting State v. Simon,
161 N.J. 416, 444 (1999)).
Further, "when a voluntary and knowing plea bargain has been entered
into simultaneously with the guilty plea, defendant's burden of presenting a
plausible basis for his request to withdraw his guilty plea is heavier." State v.
Huntley, 129 N.J. Super. 13, 18 (App. Div. 1974). "A guilty plea voluntarily
entered should not generally be vacated in the absence of some plausible
showing of a valid defense against the charges." State v. Gonzalez, 254 N.J.
Super. 300, 303 (App. Div. 1992).
We conclude the PCR court properly considered and balanced the four
Slater factors in denying defendant's motion to withdraw his guilty plea. The
PCR court correctly "place[d] no weight on defendant's . . . claim of innocence,"
that he struck M.D. because he had a knife and was preparing to injure Perez.
As the PCR court noted, the police reports and the record do not demonstrate
that M.D. had a knife. While a steak knife was found by the police at the scene,
it was "not tied to this crime."
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Further, defendant admitted to the police that he hit M.D. twice in the head
with a metal pipe. Defendant also stated at the November 15, 1999 plea hearing
that while Benitez was hitting M.D., he also struck M.D. with a belt. In his
certification, defendant does not claim innocence, and rather states that he "did
hit [M.D.] and . . . take[s] FULL responsibility for [his] actions." Additionally,
as the PCR court stated, defendant's "contention of use of deadly force in defense
of another does not consider . . . his obligation to retreat before the use of any
type of excessive force."
Accordingly, based on the PCR judge's statements and balancing of the
Slater factors, we agree that there was no "manifest injustice such th[at]
defendant should be permitted to withdraw his guilty plea."
To the extent not specifically addressed, defendants' remaining arguments
are without sufficient merit to warrant discussion in a written opinion . R.
2:11-3(e)(2).
Affirmed in part, reversed in part, and remanded for an evidentiary
hearing. We do not retain jurisdiction.
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