STATE OF NEW JERSEY VS. CARLOS J. AMORIM (05-05-0490, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-1000-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARLOS J. AMORIM,
Defendant-Appellant.
______________________________
Submitted December 4, 2018 – Decided January 10, 2019
Before Judges Sabatino and Mitterhoff.
On appeal from Superior Court of New Jersey, Law
Division, Essex County, Accusation No. 05-05-0490.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel;
William P. Welaj, on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Frank J. Ducoat,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Carlos Amorim appeals from the Law Division's May 19, 2017
order denying his petition for post-conviction relief ("PCR"). We affirm.
We briefly recite the relevant facts from the record. In 2005, defendant
was charged with numerous drug offenses in a six-count accusation. On May
27, 2005, defendant pled guilty, pursuant to a plea agreement, to one count of
conspiracy to commit possession with intent to distribute a controlled dangerous
substance. During the plea hearing, defendant testified that he had reviewed and
understood the plea form and that he had no questions for his attorney or the
court. One question on the plea form asked if defendant understood "that if you
are not a United States citizen or national, you may be deported by virtue of your
guilty plea?" Defendant circled "yes" in response to this question.
Additionally, the plea court asked defendant if he understood that his plea
may have immigration consequences and if he had discussed the immigration
consequences with his attorney. Defendant answered affirmatively. The court
asked if defendant had consulted with another attorney who specialized in
immigration law, to which defendant's plea counsel responded affirmatively.
After plea counsel elicited a factual basis for the plea, the court accepted
defendant's plea as knowing and voluntary. The court sentenced defendant to
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time served and two years of probation and dismissed the remaining counts in
the accusations on the State's motion, in accordance with the plea agreement.
In 2015, defendant became aware that a warrant had been issued for his
deportation. On April 6, 2016, defendant filed a petition for PCR while in the
custody of Immigration and Customs Enforcement. He alleged that his plea
counsel was constitutionally ineffective because counsel misinformed defendant
about the immigration consequences of his plea. After hearing legal argument
in February 2017, Judge Verna G. Leath ordered an evidentiary hearing to
address defendant's contention that his plea counsel gave immigration advice
and represented himself to defendant as an immigration attorney.
At the evidentiary hearing on May 9, 2017, both plea counsel and
defendant testified. Plea counsel testified that did not specifically remember the
case, but explained his normal practices in representing non-citizens at the time
defendant entered his plea, including how he would review the plea form with
each defendant. Plea counsel testified that he would have responded
affirmatively to the plea court's inquiry if defendant had consulted an
immigration attorney "because either [he] directed [defendant] there or that there
was discussion that there was some sort of consultation." Defendant testified
that on the day of the plea hearing, plea counsel told him that an immigration
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stamp had been lifted and that everything was going to be okay. Defendant also
testified that he never consulted with another immigration attorney and that had
he known his plea counsel did not specialize in immigration law, he would have
hired a different attorney who specialized in both criminal and immigration law
to represent him.
On May 19 2017, Judge Leath issued an oral decision denying defendant's
petition for PCR. Judge Leath found that defendant had shown excusable
neglect to waive the five-year time bar on his PCR petition. See R. 3:22-
12(a)(1)(A). Addressing the merits of defendant's petition, Judge Leath found
that defendant failed to establish that his counsel was constitutionally
ineffective. Judge Leath found that the plea court conducted a sufficient voir
dire of defendant regarding his understanding of the potential immigration
consequences of the plea. Judge Leath also found that plea counsel was
"credible when he testified how he reviewed the plea form with his client and
the merits of the plea offer." However, Judge Leath "had greater difficulty
accepting defense counsel's averment that he would not have said that defendant
consulted with an immigration attorney if he had not." Nonetheless, Judge Leath
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noted that the plea in this case predated Nunez-Valdez1 and Padilla2 and found
that defendant had failed to establish that his plea counsel's performance was
constitutionally deficient.
Defendant appealed the PCR's court denial of his petition. On appeal,
defendant raises the following point for our review:
POINT I: THE POST-CONVICTION RELIEF
COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF FOLLOWING
THE EVIDENTIARY HEARING SINCE
THE DEFENDANT FAILED TO
RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL
COUNSEL REGARDING THE
DEPORTATION CONSEQUENCES
ARISING OUT OF HIS GUILTY PLEA,
RESULTING IN A GUILTY PLEA
WHICH HAD NOT BEEN FREELY,
KNOWINGLY AND VOLUNTARILY
ENTERED, WHILE THE FACTUAL
FINDINGS MADE BY THE
POSTCONVICTION RELIEF COURT
UNDERLYING ITS DENIAL WERE
NOT SUPPORTED BY THE RECORD
ESTABLISHED AT THE HEARING.
Mindful of the trial judge's opportunity to hear and see live witnesses, we
1
State v. Nuñez-Valdéz, 200 N.J. 129 (2009).
2
Padilla v. Kentucky, 559 U.S. 356 (2010).
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defer to a trial court's factual findings made after an evidentiary hearing on a
petition for PCR. State v. Nash, 212 N.J. 518, 540 (2013). "[W]e will uphold
the PCR court's findings that are supported by sufficient credible evidence in
the record." Ibid. (citing State v. Harris, 181 N.J. 391, 415 (2004)). However,
"we need not defer to a PCR court’s interpretation of the law; a legal conclusion
is reviewed de novo." Id. at 540-41 (citing Harris, 181 N.J. at 415-16).
A PCR petitioner faces the burden to establish the grounds for relief by a
preponderance of the credible evidence. State v. Goodwin, 173 N.J. 583, 593
(2002). Further, to establish an ineffective-assistance-of-counsel claim, a
convicted defendant must demonstrate: (1) counsel's performance was deficient,
and (2) the deficient performance actually prejudiced the accused's defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Fritz, 105
N.J. 42, 58 (1987) (adopting two-part Strickland test in New Jersey).
In this case, defendant contends his counsel was constitutionally
ineffective because counsel failed to adequately advise him of the deportation
consequences arising out of the guilty plea. "In [Nuñez-Valdéz], our State
Supreme Court held a defendant can show ineffective assistance of counsel by
proving that his [or her] guilty plea resulted from 'inaccurate information from
counsel concerning the deportation consequences of his plea.'" State v.
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Brewster, 429 N.J. Super. 387, 392 (App. Div. 2013) (quoting Nuñez-Valdéz,
200 N.J. at 143). The United States Supreme Court has clarified that counsel's
duty is not limited to avoiding "false or misleading information," as our Court
identified in Nuñez-Valdéz, 200 N.J. at 138, but also includes an affirmative
duty to inform a defendant entering a guilty plea of the relevant law pertaining
to mandatory deportation. See Padilla, 559 U.S. at 368-69.
The United Supreme Court, however, held that the rule announced in
Padilla imposed a new obligation and announced a new rule of law. Chaidez v.
United States, 568 U.S. 342, 357-58 (2013). Consequently, the holding of
Padilla would be applied prospectively and "defendants whose convictions
became final prior to Padilla therefore cannot benefit from its holding." Id. at
358. Accordingly, pleas entered prior to Padilla are reviewed to determine
whether counsel provided affirmatively false or misleading information
regarding the plea's immigration consequences. State v. Santos, 210 N.J. 129,
143-44 (2012). "Only if defendant's attorney affirmatively gave incorrect advice
about the deportation consequences of his [or her] guilty plea might he [or she]
be entitled to set aside his [or her] conviction in accordance with the holding of
Nuñez-Valdéz." Brewster, 429 N.J. Super. at 394-95.
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In this case, defendant pled guilty prior to the Supreme Court deciding
Padilla. Under the pre-Padilla standards, we agree with the PCR court that
defendant cannot meet the first Strickland prong. The PCR court found that plea
counsel was credible when he testified that he reviewed the plea form with
defendant and discussed the merits of the plea offer with defendant. Giving
deference to this credibility determination, we conclude that the PCR court's
finding that defendant failed to establish that plea counsel provided affirmative
misinformation regarding immigration consequences is supported by
substantial, credible evidence in the record. See In re Return of Weapons to
J.W.D., 149 N.J. 108, 117 (1997) ("Deference to a trial court's fact-findings is
especially appropriate when the evidence is largely testimonial and involves
questions of credibility."). Accordingly, defendant failed to meet the burden
under Nuñez-Valdéz to establish that his plea counsel was constitutionally
ineffective.
Affirmed.
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