STATE OF NEW JERSEY VS. ISMAEL IGLESIAS-MONTIEL (05-06-0746, 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NOT FOR PUBLICATION WITHOUT THE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-3293-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ISMAEL IGLESIAS-MONTIEL,
Defendant-Appellant.
__________________________
Submitted June 4, 2019 – Decided July 10, 2019
Before Judges Fasciale and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Accusation No. 05-06-0746.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel S. Rockoff, Assistant Deputy Public
Defender, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh, Chief
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from the January 11, 2018 Law Division order, denying
his second petition for post-conviction relief. Defendant, a non-citizen, argues
the PCR court erred in determining without an evidentiary hearing that he failed
to establish a prima facie case of ineffective assistance of counsel under State v.
Nunez-Valdez, 200 N.J. 129 (2009), and that his petition was time barred and
not exempted from Rule 3:22-12's limitations. We disagree and affirm.
We derive the following facts from the record. On June 22, 2005,
defendant entered a negotiated guilty plea to a one-count accusation, charging
him with third-degree distribution of a controlled dangerous substance (CDS)
within 1000 feet of a school zone, N.J.S.A. 2C:35-7. At the plea hearing,
defendant admitted that on April 12, 2005, he sold less than fifty grams of
marijuana to an undercover officer within 1000 feet of public school number six
in the City of Passaic. On the written plea form, defendant responded "yes" to
question seventeen, indicating he understood that "if [he was] not a United States
citizen or national, [he] may be deported by virtue of [his] plea of guilty[.]"
During the plea colloquy, defendant further confirmed his understanding
in response to the trial court's questioning as follows:
[COURT:] Where were you born?
[DEFENDANT:] Mexico.
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....
[COURT:] Are you legally in this country?
[DEFENDANT:] Yes.
[COURT:] Are you a naturalized citizen or do you have
an alien registration card?
[DEFENDANT:] Well, I have permission to work.
....
[COURT:] Do you understand that you could get
deported for this?
[DEFENDANT:] Yes.
[COURT:] Do you understand that?
[DEFENDANT:] Yes.
Further, defendant told the court that he was pleading guilty voluntarily,
he read and understood the plea form before he signed it, and he was satisfied
with the services of his attorney. After pleading guilty, defendant waived a
presentence report and was sentenced on the same day. Despite his prior
municipal court convictions for possession of marijuana and simple assault ,
defendant was sentenced in accordance with the plea agreement to three years'
probation, conditioned upon serving 270 days in the county jail . Defendant did
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not appeal his conviction or sentence and incurred no new criminal charges
thereafter.
Eleven years later, defendant received a Notice to Appear before an
immigration judge for "removal proceedings under section 240 of the
Immigration and Nationality Act[.]" The Notice was dated July 6, 2016. On
October 17, 2016, defendant filed his first PCR petition, seeking to withdraw
his guilty plea and asserting his plea counsel was ineffective by failing to
provide him with immigration advice.1 Defendant explained he did not file his
petition within five years of his conviction, as required under Rule 3:22-12,
because he was unaware that he was deprived of his right to speak to an
immigration attorney before pleading guilty until he was arrested by
immigration authorities on July 6, 2016.
On May 3, 2017, following oral argument, the PCR court rejected
defendant's contentions on both procedural and substantive grounds. In an oral
decision, the court determined that because defendant was "on notice" when he
entered his plea "that he could be deported," defendant failed to establish either
"excusable neglect or that enforcement of the time bar would result in a
1
Because defendant did not include the first petition in the record, we rely on
the PCR court's description of its contents.
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fundamental injustice" to overcome Rule 3:22-12's limitations. Further, the
court found that because plea counsel did not "give incorrect advice . . . about
the immigration consequences of his plea[,]" defendant did "not satisf[y] the
first prong of the [Strickland v. Washington, 466 U.S. 668 (1984),2] test."
In that regard, the court rejected defendant's reliance on Padilla v.
Kentucky, 559 U.S. 356 (2010), explaining that under State v. Gaitan, 209 N.J.
339 (2012), the imposition of an affirmative duty to advise on deportation
consequences decreed in Padilla did not apply retroactively to defendant's 2005
conviction. The court also determined that Nunez-Valdez was inapplicable
because defendant claimed plea counsel provided no advice, rather than the
incorrect advice about deportation consequences outlawed under Nunez-Valdez.
See 200 N.J. at 139-42. Thus, according to the court, defendant failed to present
"a prima facie claim of ineffective assistance of counsel" entitling him to the
relief sought.
Additionally, after evaluating defendant's motion to withdraw his guilty
plea under the four factors enunciated in State v. Slater, 198 N.J. 145, 157-58
2
To prevail on a claim of ineffective assistance of counsel (IAC), a defendant
must satisfy a two-part test. Specifically, the defendant must show that his
attorney's performance was deficient and that the "deficient performance
prejudiced the defense." Strickland, 466 U.S. at 687. See State v. Fritz, 105
N.J. 42, 49-53 (1987) (adopting the Strickland two-part test for IAC claims).
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(2009), the court found no "manifest injustice" as required under Rule 3:21-1 to
justify granting the motion. On the contrary, according to the court,
"[d]efendant ha[d] not asserted any [colorable] claim of . . . innocence[,]" his
"reason for withdrawal" was "without merit[,]" the guilty plea was the product
of a "plea bargain," and the State would be "unfair[ly] prejudice[d]" if it had "to
investigate and try a [twelve-]year[-]old case."
In July 2017, defendant filed a second petition for PCR, seeking to
withdraw his guilty plea because his plea and first PCR counsel were ineffective.
According to defendant, his plea counsel was ineffective "by advising [him] that
he would not be deported as a result of th[e] small amount of marijuana" and
"by not consulting with an immigration attorney." Defendant claimed his plea
counsel was also ineffective by failing to file appropriate pre-trial motions and
compel discovery. Additionally, defendant asserted his first PCR counsel was
ineffective by failing to make appropriate "inquiry as to what [plea counsel] did
and said to defendant" and by applying "the wrong standard" for ineffective
assistance of counsel claims involving incorrect advice on immigration
consequences.
In support, contrary to his first PCR petition, defendant certified that when
he asked about the deportation consequences of a guilty plea, his plea counsel
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informed him "that immigration would do nothing to [him] because the amount
of pot was so small[, amounting to] . . . only one gram." Defendant averred
"[he] was very concerned about [his] immigration status" because he "had a wife
and a child" and "would [never] have pled guilty" had he known that his pl ea
counsel's "advice was incorrect." According to defendant, "[he] would rather
spend time in jail versus a lifetime in Mexico." Defendant also submitted
supporting certifications from family members, including his wife, who was a
United States citizen.
In addition, defendant submitted a certification prepared by his plea
counsel stating:
If . . . defendant had inquired as to the immigration
consequences of this plea, I would have advised [him]
that he would not be deported as a result of this
distribution of a small amount of marijuana. This is
based upon the fact that foreign nationals convicted of
similar drug offenses in 2005 were NOT BEING
DEPORTED. I knew of foreign nationals convicted of
murder and armed robbery being deported but not for
this type of "relatively minor" marijuana offense.
On January 11, 2018, following oral argument, the PCR court denied the
application on procedural and substantive grounds without conducting an
evidentiary hearing. In an oral decision, the judge determined that the second
petition was time barred under Rule 3:22-4(b) and Rule 3:22-12(a)(2). Turning
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to the merits, according to the court, "[plea counsel's] advice was based on his
experience in handling . . . similar minor drug distribution cases in 2005." Thus,
the court did not view plea counsel's statement in his certification as
"misadvice."
The court elaborated that rather than giving defendant "inaccurate
information . . . concerning the deportation consequences of his plea[,]"
[plea counsel] advised him that he would not be
deported as a result of [the] distribution of a small
amount of marijuana because[,] in 2005[,] foreign
nationals were not being deported for similar drug
offenses. In 2005[,] deportation was not a serious issue.
While distribution of CDS was deportable under
Federal law, in practice[,] defendants were not being
deported for minor marijuana offenses.
The court continued:
[Plea counsel] practiced law in the manner that . . . other
attorneys did at th[at] time. Defendant was not arrested
by ICE[3] until July 6[], 2016, which is [eleven] years
after he pled guilty. This in itself lends credence to the
fact that the Federal government was simply not
deporting people as a practical matter.
Moreover, according to the court, defendant was on notice of deportation
consequences based on the fact that "[d]efendant answered yes to [q]uestion . . .
[seventeen] on the plea form," and was advised by the court during the plea
3
Immigration and Customs Enforcement.
A-3293-17T3
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colloquy that he "could get deported." Thus, similar to the first PCR, the court
again concluded that defendant failed to satisfy the first prong of Strickland.
Addressing the second Strickland prong, the court was unpersuaded that
but for plea counsel's advice, defendant would not have pled guilty. In that
regard, the court explained:
Defendant sol[d] marijuana to an undercover
detective. And if convicted at trial would have . . . been
subjected to a maximum sentence of five years in prison
with the imposition of a minimum term of between . . .
[one-]half to one[-]third of the sentence imposed, or
one year, whichever was greater.
The offer made to defendant at the pre-indictment
court was probation with 270 days in the Passaic
County Jail[,] concurrent to a violation of probation
that might have been filed in the future. The transcript
indicates during sentencing defendant was concerned
with getting out of jail early so that he could spend more
time with his daughter. . . .
Defendant was concerned with minimizing his
jail exposure. The bare assertion . . . that he would not
have pled guilty if made aware of the proper
consequences of pleading guilty is not convincing.
The State had a strong case against defendant.
And he received a favorable plea offer.
After rejecting defendant's remaining IAC claims, and incorporating the reasons
set forth on the record in its May 3, 2017 decision, the court entered a
memorializing order and this appeal followed.
A-3293-17T3
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On appeal, defendant raises the following single point for our
consideration:
BECAUSE DEFENDANT PRESENTED A [PRIMA
FACIE] CASE THAT HE WAS PREJUDICED BY
FALSE ADVICE FROM HIS PLEA COUNSEL, THE
LAW DIVISION'S ORDER DENYING HIS PCR
PETITION WITHOUT AN EVIDENTIARY
HEARING SHOULD BE REVERSED.
Merely raising a claim for PCR does not entitle the defendant to an
evidentiary hearing. See State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div. 1999). Rather, trial courts should grant evidentiary hearings and make a
determination on the merits only if the defendant has presented a prima facie
claim of IAC, material issues of disputed fact lie outside the record, and
resolution of those issues necessitates a hearing. R. 3:22-10(b); State v. Porter,
216 N.J. 343, 355 (2013). A PCR court deciding whether to grant an evidentiary
hearing "should view the facts in the light most favorable to a defendant." State
v. Preciose, 129 N.J. 451, 463 (1992). In turn, we review under the abuse of
discretion standard the PCR court's determination to proceed without an
evidentiary hearing. State v. Marshall, 148 N.J. 89, 157 (1997); see also R.
3:22-10; Preciose, 129 N.J. at 462.
To establish a prima facie case of IAC to set aside a guilty plea, "a
defendant must show that (i) counsel's assistance was not 'within the range of
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competence demanded of attorneys in criminal cases'; and (ii) 'that there is a
reasonable probability that, but for counsel's errors, [the defendant] would not
have pled guilty and would have insisted on going to trial.'" Nunez-Valdez, 200
N.J. at 139 (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457
(1994)). In other words, the defendant must show that not pleading guilty would
have been "rational under the circumstances." State v. O'Donnell, 435 N.J.
Super. 351, 371 (App. Div. 2014) (quoting Padilla, 559 U.S. at 372).
Because there is a strong presumption that counsel "rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment[,]" Strickland, 466 U.S. at 690, defendant bears the
burden of proving both prongs of an IAC claim by a preponderance of the
evidence. Gaitan, 209 N.J. at 350. Further, because prejudice is not presumed,
Fritz, 105 N.J. at 52, the defendant must demonstrate "how specific errors of
counsel undermined the reliability" of the proceeding. United States v. Cronic,
466 U.S. 648, 659 n.26 (1984).
Here, defendant asserts that plea "[c]ounsel's inexcusably false advice that
the plea would not result in deportation induced [defendant] to accept a deal
which he otherwise would have rejected." According to defendant, "[p]lea
counsel's advice was affirmatively misleading and false, because deportation for
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the offense was 'inevitable' as a matter of federal law." Thus, defendant
continues, plea counsel rendered "constitutionally deficient" legal
representation under Nunez-Valdez. We disagree.
In Nunez-Valdez, our Supreme Court held that a defendant could establish
the deficiency prong of an IAC claim by proving that his guilty plea resulted
from "inaccurate information from counsel concerning the deportation
consequences of his plea." 200 N.J. at 143. The following year, in Padilla, the
United States Supreme Court held that defense counsel's incorrect advice as well
as counsel's failure to give any advice whatsoever about deportation constituted
deficient performance sufficient to establish a constitutional violation where the
relevant law pertaining to mandatory deportation is "succinct, clear, and
explicit." 559 U.S. at 368-69.
In Gaitan, our Supreme Court held that because Padilla's imposition of an
affirmative duty to advise on deportation consequences was a new constitutional
rule, its holding applied prospectively only. Gaitan, 209 N.J. at 373. Accord
Chaidez v. United States, 568 U.S. 342, 357-58 (2013). On the other hand,
because Nunez-Valdez was not a new rule of constitutional law, IAC claims of
incorrect advice about deportation consequences could be addressed
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retroactively on collateral review of past convictions. Gaitan, 209 N.J. at 375.
Therefore, while Padilla does not apply to this case, Nunez-Valdez does.
Our holding in State v. Brewster, 429 N.J. Super. 387 (App. Div. 2013)
informs our analysis of the dispositive issue in this case. There, the defendant
Moses Brewster, a non-citizen, entered a negotiated guilty plea in 1998 to third-
degree possession of marijuana with intent to distribute in a school zone,
N.J.S.A. 2C:35-7, and was sentenced to probation with 364 days in the county
jail. Id. at 390-91. Although the judge did not specifically question the
defendant about the possibility of deportation at the plea hearing, the risk of
deportation was addressed in the written plea form defendant signed. Id. at 391.
Brewster did not file a direct appeal and served his sentence. Ibid. Almost
twelve years later, "[he] was arrested by federal authorities and detained . . . on
a complaint for deportation based on his [1998] conviction." Ibid. In 2010, he
filed a PCR petition, asserting his plea counsel was ineffective because when he
inquired about immigration, plea counsel told him "he did[ not] think there
would be any issue with immigration[.]" Id. at 391, 395.
The trial court denied Brewster's petition on procedural and substantive
grounds, and we affirmed. Procedurally, we agreed with the trial court that the
petition was untimely under Rule 3:22-12(a)(1), and Brewster failed to show
A-3293-17T3
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"excusable neglect for the late filing" or that "fundamental injustice" would
result if his claims were "not considered on their merits." Id. at 398-99. "Nor
did he file his petition within one year of the courts establishing a new
'constitutional right' or of his learning the 'factual predicate' that the conviction
would have adverse immigration and deportation consequences[,]" as required
under Rule 3:22-12(a)(2).4 Brewster, 429 N.J. Super. at 399.
Addressing the merits, we explained:
First, unlike Nunez-Valdez, [200 N.J. at 141],
defense counsel here did not assure defendant that he
would not be deported. Rather, he allegedly stated he
did not think deportation would be an issue and he
would discuss the matter with the prosecutor.
Defendant has not shown this advice deviated from the
"prevailing professional norms" in 1998 for a criminal
defense attorney. . . .
As discussed in Padilla, the fact that federal
immigration laws as early as 1922 authorized the
deportation of non-citizen drug offenders did not mean
that those convicted were automatically deported.
Until 1996, the sentencing court or the Attorney
General of the United States retained discretion to
recommend against or to waive the deportation
provisions of federal immigration law. [559 U.S. at
359-63]. Even after 1996, deportation proceedings did
4
Although Rule 3:22-12(a)(2) refers to a "second or subsequent petition" and
Brewster's petition was his first, we noted that "the one-year supplemental
period should apply as well to a first petition filed beyond the five -year
limitation period of [Rule 3:22-12(a)(1)]" to avoid an "anomalous" result. Id. at
399, n.4.
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not automatically follow a conviction for a narcotics
offense, as the facts of this case reveal. Defendant was
sentenced in 1998 and remained undisturbed by federal
immigration officials for almost twelve years.
....
We disagree with defendant's contention that
competent representation required advice from his
attorney that he "would" be deported as a result of his
conviction. In 1998, on the cusp of modification of
federal deportation law, defense counsel could not have
reasonably predicted the certainty or even likelihood of
defendant's deportation. In fact, it might have been
incorrect at that time for defense counsel to have
advised defendant he would surely, or likely, be
deported and thus potentially have caused defendant to
forego a favorable plea offer and to accept the
likelihood of a longer term in state prison by conviction
at trial. A longer prison sentence would not have saved
defendant from deportation.
Accurate advice was provided to defendant in
1998 by the court's warning through its plea procedures
that defendant "may" be deported as a result of his
conviction. Considering the attendant circumstances in
1998, counsel's prediction that defendant would not
have an immigration issue, in conjunction with the
warning that he may be deported, was not unreasonable
advice or outside the norms of the profession. As a
factual matter, the information defendant received is
not prima facie proof of ineffective assistance of
counsel.
[Brewster, 429 N.J. Super. at 396-98.]
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Applying these principles with a de novo standard of review, see State v.
Harris, 181 N.J. 391, 420 (2004), we agree with the PCR court that plea counsel's
advice to defendant, that he would not be deported, did not deviate from the
"prevailing professional norms" in 2005 for a criminal defense attorney.
Brewster, 429 N.J. Super. at 396. Given counsel's advice, in conjunction with
the warning defendant acknowledged on the plea form that he "may be deported
by virtue of [his] plea," as well as the verbal warning provided to defendant by
the court during the plea hearing that he "could get deported for this," like
Brewster, defendant has failed to establish the deficiency prong of his IAC
claim.
Likewise, we are satisfied that the PCR court's finding that defendant
failed to establish the prejudice prong of his IAC claim is supported by the
record. Defendant's desire, as expressed at his sentencing, to be released from
jail in order to spend time with his daughter dispels his subsequent certification
submitted to support his PCR petition that avoiding deportation was his main
concern and the prime motivator for his decision to accept the plea. Courts must
"evaluate the sufficiency of a belated claim of misadvice before granting a
hearing. In so doing, the court should examine the transcripts of the plea
colloquy and sentencing hearing[.]" Gaitan, 209 N.J. at 381. "The subsequent
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presentation of conclusory allegations unsupported by specifics is subject to
summary dismissal, as are contentions that in the face of the record are wholly
incredible." Blackledge v. Allison, 431 U.S. 63, 74 (1977). Thus, "[c]ourts
should not upset a plea solely because of post hoc assertions from a defendant
about how he would have pleaded but for his attorney's deficiencies. Rather,
[judges] should look to contemporaneous evidence to substantiate a defendant's
expressed preferences." Lee v. United States, 582 U.S. ___, ___, 137 S. Ct.
1958, 1961 (2017).
As the PCR court noted, instead of facing a mandatory minimum prison
sentence, defendant accepted a favorable pre-indictment plea offer for a
sentence of probation conditioned upon serving county jail time. Defendant did
not make a prima facie case that rejecting the highly favorable plea deal would
have been rational under the circumstances. Because defendant failed to
establish a prima facie case of IAC under Nunez-Valdez, we find no abuse of
discretion in the denial of his PCR petition without an evidentiary hearing.
Based on our decision, we need not address the procedural bar to defendant's
PCR petition.5
5
Defendant has not renewed on appeal his claim in the PCR court that he should
have been allowed to withdraw his guilty plea under Slater, 198 N.J. at 157-58.
Accordingly, we need not address the denial of the Slater motion.
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Affirmed.
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