STATE OF NEW JERSEY VS. YEISSON ANTONIO CONTRERAS-RIJO (12-03-0183, 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NOT FOR PUBLICATION WITHOUT THE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-0467-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
YEISSON ANTONIO
CONTRERAS-RIJO, a/k/a
YEISSON CABRERA-RIJO,
YEISSON CABRERA, and
YEISSON RIJO,
Defendant-Appellant.
_____________________________
Submitted October 10, 2019 – Decided December 4, 2019
Before Judges Nugent and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 12-03-0183.
Regis Fernandez, 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 Yeisson A. Contreras-Rijo appeals the denial of his petition for
post-conviction relief (PCR), claiming his attorney did not advise him about the
immigration consequences of his guilty plea. He argues his lack of knowledge
constituted "excusable neglect" for not filing the petition within five years of his
conviction. We affirm the denial of his PCR petition.
I.
Defendant was arrested after he took a piece of wood from his truck and
swung it at a Home Depot loss prevention officer, who had confronted defendant
about making returns of merchandise that were falsified. Defendant was
indicted for first-degree robbery (count one), N.J.S.A. 2C:15-1, third-degree
possession of a weapon (wooden board) for an unlawful purpose (count two),
N.J.S.A. 2C:39-4(d), fourth-degree unlawful possession of a weapon (count
three), N.J.S.A. 2C:39-5(d), and third-degree terroristic threats (count four),
N.J.S.A. 2C:12-3(a) and (b).
Defendant pleaded guilty to count two. He signed the standard plea form,
answering that he was not a United States citizen 1 and acknowledging the guilty
plea may result in his removal from the United States. He answered "yes" that
1
Defendant is a citizen of the Dominican Republic. He has been a legal
permanent resident of the United States since 2008.
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he understood he had the right to seek advice from an immigration attorney, "no"
that he had not discussed the immigration consequences of his plea with an
attorney and "no" that he did not want the opportunity to do so. He answered
question 17f at the hearing—because it had been left blank—acknowledging
"yes" that he was advised of his right to seek individualized legal advice on
immigration consequences.
The trial court asked defendant at the plea hearing whether he was subject
to a detainer from U.S. Immigration and Customs Enforcement (Immigration).
His attorney advised the court that he did not think there was a detainer, but
defendant told him that Immigration reviewed his documents at the jail . The
trial judge reviewed the plea form immigration questions with defendant:
THE COURT: All right. Mr. Contreras, just to go
over that section of questions with
you briefly. You do understand that
even though you have legal
permanent residency that you could
be deported because of this
conviction.
DEFENDANT: Yes.
THE COURT: Your lawyer's informed me that
immigration went and spoke with
you, looked at your documents at the
jail. And as far as he knows, based
on what you've told him, there
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doesn't seem to be any action toward
deportation being taken against you
at this time. But do you understand
that that could change at any time?
Immigration might take an interest in
having you deported, the
Immigration Agency.
DEFENDANT: Yes.
THE COURT: And having been convicted of a
crime it is certainly possible that that
would occur. If not now or soon,
sometime in the future. Do you
understand that?
DEFENDANT: Yes.
THE COURT: Okay. But you've indicated in your
forms that you don't want to speak
with an immigration lawyer even
though you understand you have the
right to do so?
DEFENDANT: Yes.
THE COURT: Is that right?
DEFENDANT: I don't want that.
THE COURT: Okay. Has your family spoken to an
immigration lawyer on your behalf,
do you know?
DEFENDANT: No. They have not talked to anyone.
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Defendant asked the trial court whether his guilty plea would affect his
ability to become a citizen in the future. The court acknowledged it might.
THE COURT: It might, yes. Knowing that do you
want to consult an immigration
lawyer before deciding whether to
proceed with this guilty plea?
DEFENDANT: No.
THE COURT: Okay. All right. I don't know that
they will bar you from citizenship.
Again you would need an
immigration lawyer to give you
advice in that regard, but it is
certainly possible. Do you
understand that?
DEFENDANT: Yes, I understand. It's all fine;
correct.
THE COURT: So even knowing that it's your wish
at this time to proceed now with your
guilty plea and not consult an
immigration specialist; correct?
DEFENDANT: Yes.
After defendant acknowledged the offense, the court accepted his plea
finding that it was "entered freely and voluntarily. Defendant[] waived his right
to a trial and related rights freely and voluntarily. He's done so with the advice
of counsel and there's a factual basis for the plea."
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On May 24, 2012, defendant was sentenced to time served—then 251
days—rather than the recommended 364 day custodial sentence, and to a two-
year term of probation. He did not file an appeal from the guilty plea or
sentence.
On April 17, 2014, defendant received notice from the Department of
Homeland Security to appear for a removal proceeding under Section 240 of the
Immigration and Nationality Act. 8 U.S.C. § 1229a. It alleged that under
Section 237(a)(2)(A)(i) of the Act 2, defendant had been "convicted of a crime
involving moral turpitude committed within five years after admission for which
a sentence of one year or longer may be imposed." He was required to show
cause why he should not be deported.
Defendant filed this PCR petition nearly four years later, on April 13,
2018. In his supporting affidavit, he alleged his criminal attorney never advised
him of the immigration consequences of pleading guilty. He claimed his
attorney "simply told me not to worry about it on the day of my guilty plea."
Defendant did not want to remain in jail any longer. He alleged his criminal
attorney told him to say "no" in response to the judge's question about whether
2
8 U.S.C. § 1227(a)(2)(A)(i).
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he wanted to speak to an immigration lawyer "because I would continue to be
detained until I spoke to an immigration attorney. Thus, when the Judge asked
me if I knew I could be deported[,] I said yes." He claimed his attorney did not
visit him in jail. Defendant alleged that if his criminal attorney had met 3 with
him and inquired about his immigration status, consulted with an immigration
attorney, or conducted research, he would "not have pled guilty or at least have
sought out other possible guilty pleas." He claimed he did not know there were
immigration consequences of [his] plea until he was notified in June 2014 to
appear in immigration court.
Defendant's PCR petition was denied on August 21, 2018, by the same
trial judge who heard the plea. The court found that defendant "acknowledged
the risk of deportation before entering his guilty plea." It had advised defendant
that deportation was "certainly possible[,]" which "compel[ed] [p]etitioner's
serious consideration of [the] deportation risk." His trial counsel "never made
any statements . . . that deportation was unlikely." The PCR court found
defendant was not misinformed about his deportation risk; he was told it was
"certainly possible." At the plea hearing, defendant was asked on three
3
During the plea hearing, defendant acknowledged meeting with his attorney
on October 5, 2011, which was six months before his guilty plea.
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occasions whether he wanted to speak with an immigration attorney but
declined. The court believed there was no indication that defendant "would not
have pleaded guilty if he had known that the risk of deportation was a certainty."
The court found that defendant's plea was "entered knowingly, voluntarily and
intelligently" because he:
had sufficient knowledge of his deportation risks,
evidenced by his decision not to consult with an
immigration attorney, despite repeated attempts by the
Court to confirm that he was aware of his risk of
deportation. There [was] insufficient evidence showing
that, but for the advice of his trial counsel, [p]etitioner
would not have pleaded guilty.
The PCR court rejected defendant's claim that his petition should be
treated as timely based on excusable neglect. Defendant understood the
consequences of his guilty plea. He was "in fact, aware of the potential
immigration consequences well before his [n]otice to [a]ppear in immigration
court was served . . . ."
On appeal, defendant raises the following issues:
I. COUNSEL DID NOT ADVISE THE
PETITIONER OF THE POSSIBLE IMMIGRATION
CONSEQUENCES OF HIS GUILTY PLEA
RESULTING IN A GUILTY PLEA THAT WAS NOT
ENTERED KNOWINGLY AND INTELLIGENTLY
CAUSING PREJUDICE TO THE DEFENDANT-
PETITIONER[.]
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II. THE DEDENDANT-PETITIONER'S FAILURE
TO FILE PCR WITHIN [FIVE] YEARS IS SUBJECT
TO EXCUSABLE NEGLECT BECAUSE HE WAS
NOT AWARE OF HIS DEPORTATION RISK UNTIL
PLACED IN REMOVAL PROCEEDINGS LESS
THAN [FIVE] YEARS AGO[.]
II.
The standard for determining whether counsel's performance was
ineffective for purposes of the Sixth Amendment was formulated in Strickland
v. Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in
State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on an ineffective
assistance of counsel claim, defendant must meet a two-prong test by
establishing that: (l) counsel's performance was deficient and the errors made
were so egregious that counsel was not functioning effectively as guaranteed by
the Sixth Amendment to the United States Constitution; and (2) the defect in
performance prejudiced defendant's rights to a fair trial such that there exists "a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Strickland, 466 U.S. at 687.
In the plea bargain context, "a defendant must prove 'that there is a
reasonable probability that, but for counsel's errors, . . . [he] would not have pled
guilty and would have insisted on going to trial.'" State v. Gaitan, 209 N.J. 339,
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351 (2012) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)). He must
also show that "a decision to reject the plea bargain would have been rational
under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
Defendant alleges his trial counsel misinformed him about the
immigration consequences of pleading guilty because he did not inform him that
deportation was a "practical certainty." Because defendant's plea was entered
on April 9, 2012, the standards set forth in Padilla applied. 559 U.S. at 356.
Under Padilla "to satisfy a defendant's Sixth Amendment right to effective
assistance of counsel, counsel has an affirmative obligation to inform a client-
defendant when a plea places the client at risk of deportation." Gaitan, 209 N.J.
at 356 (citing Padilla, 559 U.S. at 374). Our Supreme Court explained that
following Padilla, "counsel is duty-bound to provide a client 'with available
advice about an issue like deportation' and declared that 'the failure to do so'
satisfies the attorney-deficiency prong in Strickland's analysis." Ibid. (quoting
Padilla, 559 U.S. at 371). However, "immigration law is often complex, and the
consequences of a conviction are often far from clear." State v. Blake, 444 N.J.
Super. 285, 295 (App. Div. 2016) (citing Padilla, 559 U.S. at 369). "[T]he
specificity and definiteness of counsel's required advice varies with the clarity
of the immigration law itself." Ibid.A-0467-18T4
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Defendant claims he was not properly advised by his counsel, suggesting
that counsel should have inquired into his immigration status, consulted with an
immigration attorney and conducted research in order for defendant to make an
informed decision about pleading guilty. He argues he was misinformed
because deportation was a practical certainty.
We agree with the trial judge that defendant had "sufficient knowledge of
his deportation risks . . . ." The transcript of the plea hearing showed
unequivocally that defendant was advised, based on his plea, that it was certainly
possible he might be deported. He was asked three times whether he wanted to
discuss the matter with an immigration attorney but declined to do so. He was
aware prior to his plea that Immigration had "checked his papers" while he was
detained; therefore, he knew that Immigration was looking into his charges.
Defendant showed concern, asking the court whether his conviction would affect
his ability to become a citizen. The judge advised it might, asking defendant
again if he wanted to consult with an immigration attorney, to which defendant
again declined.
Counsel is not required to "use 'magic words'—'mandatory deportation' or
'presumptively mandatory deportation'—to fulfill his obligation to provide
effective assistance to a non-citizen client." Blake, 444 N.J. Super. at 299.
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Defendant was told the plea may affect his immigration status. Counsel
reviewed the plea form with defendant. That "form accounts for those cases
where removal is virtually inevitable[,]" advising a defendant that he can obtain
"individualized advice from an attorney" about his situation. Id. at 297-98.
Defendant repeatedly turned this down.
The record does not support defendant's claim he was misinformed about
the immigration risks. He did not mention this to the judge at his plea or
sentencing. Defendant had concerns because he asked the judge about the
consequences of pleading guilty on any future citizenship application. He did
not claim he was misled by his attorney until he filed this PCR petition in 2018,
which was nearly four years after he became aware that Immigration sought his
removal. This record is not consistent with his claim that he was misinformed
about the immigration consequences. We agree with the trial court that
defendant's attorney was not deficient because he was aware of the risk of
deportation.
Defendant also did not demonstrate that "had he been properly advised, it
would have been rational for him to decline the plea offer and insist on going to
trial and, in fact, that he probably would have done so[.]" State v. Maldon, 422
N.J. Super. 475, 486 (App. Div. 2011) (citing Padilla, 559 U.S. at 372). This
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was the second requirement under Strickland. In this case, defendant had a
favorable plea deal that would release him from jail with time served and two
years' probation. He was facing a five-year sentence and $15,000 fine on the
unlawful use of a weapon charge. The other counts of the indictment all were
dismissed. He alleged he would have sought out other possible pleas, but there
is no indication that any other pleas were offered or available.
We agree with the trial court that defendant's April 13, 2018 PCR petition
was filed more than five years after his May 24, 2012 judgment of conviction.
It was out of time and did not show "excusable neglect" under Rule 3:22-12
(a)(1)(A). A first PCR petition shall not be filed:
more than [five] years after the date of entry . . . of the
judgment of conviction that is being challenged unless:
(A) it alleges 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
fundamental injustice[.]
[R. 3:22-12(a)(1)(A).]
Defendant was aware that Immigration reviewed his file prior to his plea.
He had concern enough to ask if the plea would affect an application for
citizenship. He was advised that the plea could affect his immigration status.
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Defendant rejected the suggestion to consult with an immigration attorney about
his specific situation. We have concluded that Strickland was satisfied. On this
record, there simply are no facts that rise to the level of excusable neglect within
the meaning of this Rule.
Affirmed.
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