State of New Jersey v. Mariano Antuna

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0849-14T2

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
August 16, 2016

v. APPELLATE DIVISION

MARIANO ANTUNA,

Defendant-Appellant.
___________________________________

Argued February 1, 2016 – Decided August 16, 2016

Before Judges Lihotz, Nugent and Higbee.

On appeal from Superior Court of New Jersey,
Law Division, Camden County, Accusation No.
00-02-0541.

Justin T. Loughry argued the cause for
appellant (Loughry and Lindsay, LLC,
attorneys; Mr. Loughry, on the brief).

Jason Magid, Assistant Prosecutor, argued
the cause for respondent (Mary Eva
Colalillo, Camden County Prosecutor,
attorney; Mr. Magid, of counsel and on the
brief).

The opinion of the court was delivered by

HIGBEE, J.A.D.

Defendant Mariano Antuna appeals from an August 4, 2014

order denying his petition for post-conviction relief (PCR).
Defendant argues he received ineffective assistance of counsel

because his trial counsel failed to properly advise him of

potential immigration consequences resulting from his conviction

following a guilty plea. Alternatively, defendant argues

counsel's failure to read to him or have him complete the plea

form, resulted in ineffective assistance of counsel. We agree

with the latter contention and reverse.

Defendant was charged in Accusation No. 00-02-0541 with

third-degree possession with intent to distribute heroin,

N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). In 2000,

defendant executed the written plea and waiver of indictment

forms, and pled guilty to the Accusation. Question seventeen of

the plea form, which was exclusively in English, was not

answered. That question reads: "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? [YES] [NO] [N/A]."

It is undisputed that defendant is a Cuban native who could

not understand English. With the aid of a Spanish interpreter,

defendant testified he signed the negotiated plea agreement as

completed by his attorney without actually reading the questions

to him. Defendant further testified his attorney did not review

question seventeen with him or advise of immigration

consequences resulting from his guilty plea. During the plea

2 A-0849-14T2
colloquy, the trial judge did not inquire whether defendant

could read or understand English. Further, the judge did not

remark that question seventeen was not answered, nor did he

advise defendant he could be deported as a result of his

conviction or ask whether counsel discussed immigration

consequences with him.1

Defendant was thereafter sentenced to probation for three

years with fines and penalties. Pursuant to a 2002 order for

early discharge of probation, defendant's probation was

terminated. In 2005, after applying for permanent residency

status, defendant was subjected to removal proceedings by United

States Immigration and Customs Enforcement. In 2013, defendant

filed a verified petition for post-conviction relief and later

supplemented his pleadings with a certification and brief.2

Following a plenary hearing, the PCR judge filed an order and

written opinion denying defendant's petition.

The PCR judge found defendant's testimony credible and

stated "[b]ecause the defendant did not speak or read English

1
Defendant asserted he would have proceeded to trial had he
been aware of the risk of deportation to Cuba, associated with
his guilty plea.
2
Although defendant filed his PCR petition approximately eight
years after becoming aware of his potential deportation, the PCR
judge found there was excusable neglect on behalf of defendant.
Whether defendant's PCR petition was time-barred pursuant to
Rule 3:22-12(a) is not before this court.

3 A-0849-14T2
and did not indicate an answer to [q]uestion [seventeen] on the

plea form, specifically addressing immigration consequences, the

record before the [c]ourt supports the defendant's contention

that he was not provided information regarding the immigration

consequences." The judge also found that "if [defendant's trial

counsel] provided any information, [he] would not have provided

misinformation as he is not experienced in immigration law and

would not have provided [immigration] advice." The PCR judge

reasoned that because defendant "does not contend [his trial

counsel] misinformed him about the immigration consequences

. . . the representation was not deficient under Nuñez-Valdéz."3

Defendant appeals from that order, raising the following

claims:

I. THIS CASE CONSTITUTES AN INSTANCE OF
["]MIS-ADVICE", AND THEREFORE SHOULD COME
WITHIN THE RULE OF NUÑEZ-VALDÉZ.

II. EVEN IF NOT CONSIDERED A STRICT CASE OF
MIS-ADVICE, THIS CASE EXPOSES THE
USELESSNESS OF THE DISTINCTION BETWEEN MIS-
ADVICE AND NON-ADVICE WHEN AN ATTORNEY, ON
ACCOUNT OF LANGUAGE BARRIERS, CONTROLS THE
PREPARATION AND EXECUTION OF THE PLEA FORM,
AND FAILS TO ANSWER IN ANY MANNER ITEM 17.
(NOT RAISED BELOW).

We defer to a PCR court's factual findings if they "are

supported by sufficient credible evidence in the record." State

3
State v. Nuñez-Valdéz, 200 N.J. 129 (2009).

4 A-0849-14T2
v. Nash, 212 N.J. 518, 540 (2013). However, we review a PCR

court's legal conclusions de novo. Id. at 540-41.

To succeed on a claim for ineffective assistance of

counsel, "a defendant must show deficient performance by counsel

'so serious that counsel was not functioning as the counsel

guaranteed by the Sixth Amendment' and that the defendant was

prejudiced by the attorney's performance." State v. Gaitan, 209

N.J. 339, 349-50 (2012) (quoting Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693

(1984)), cert. denied, __ U.S. __, 133 S. Ct. 1454, 185 L. Ed.

2d 361 (2013). Such a showing must be proven by a preponderance

of the evidence. Id. at 350.

An attorney's performance is reviewed for "reasonableness

under prevailing professional norms." Ibid. (quoting

Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L.

Ed. 2d at 694). Such an evaluation "must be 'viewed as of the

time of counsel's conduct.'" Ibid. (quoting State v. Castagna,

187 N.J. 293, 314 (2006)). For a showing of prejudice in

connection with a guilty plea, "a defendant must prove 'that

there is a reasonable probability that, but for counsel's

errors, [he or she] would not have pled guilty and would have

insisted on going to trial.'" Id. at 351 (alteration in

original) (quoting Nuñez-Valdéz, supra, 200 N.J. at 139).

5 A-0849-14T2
 Defendant's plea was entered prior to the United States

Supreme Court's holding that requires "counsel must inform her

client whether his plea carries a risk of deportation." Padilla

v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486, 176 L.

Ed. 2d 284, 299 (2010). The holding in Padilla is only applied

prospectively. Chaidez v. United States, __ U.S. __, __, 133 S.

Ct. 1103, 1107, 185 L. Ed. 2d 149, 155 (2013); accord Gaitan,

supra, 209 N.J. at 373-74. Because this matter arose prior to

Padilla, the legal standard controlling the advice defense

counsel is obligated to provide when addressing immigration

consequences of a conviction arising at the time a defendant

enters a guilty plea is found in Nuñez-Valdéz. Gaitain, supra,

209 N.J. at 373-74.

In Nuñez-Valdéz, the Supreme Court held that the

defendant's counsel's incorrect advice or misleading information

regarding deportation and immigration consequences resulting

from a guilty plea to an aggravated felony was sufficient to

satisfy the performance prong of the Strickland analysis.

Nuñez-Valdéz, supra, 200 N.J. at 140-42. Furthermore, based on

the defendant's testimony that had he received correct advice,

he would not have pled guilty, the Court found the prejudice

prong of Strickland was satisfied as well. Id. at 142-43.

6 A-0849-14T2
 As discussed in Gaitan, the mandate that "defense attorneys

now must advise their clients of potential immigration

consequences of pleading guilty" – was never established prior

to Padilla. Gaitan, supra, 209 N.J. at 346. Specifically, the

Court emphasized "[t]hat was not our law, even under the Nuñez-

Valdéz holding." Id. at 373.

Here, limiting the analysis to the fact that defendant's

trial counsel did not affirmatively provide false advice or

misinformation about defendant's immigration consequences

resulting from his guilty plea ignores the uncontroverted

evidence that counsel failed to convey to defendant the basic

information on deportation included on the plea form. Defendant

avers he was completely unaware of possible deportation

consequences which the PCR judge found credible.

These facts support our conclusion that counsel's

performance was deficient, despite a finding he did not provide

affirmative misadvice, thus distinguishing it from cases

governed by Nuñez-Valdéz, supra, 200 N.J. at 136 (where

defendant completed the plea form). The facts presented in this

matter are also distinguishable from our holdings in State v.

Blake, 444 N.J. Super. 285, 290 (App. Div. 2016), and State v.

Brewster, 429 N.J. Super. 387, 391 (App. Div. 2013), where we

affirmed the denial of PCR petitions when the defendant

7 A-0849-14T2
completed question seventeen in the plea form and no evidence of

false advice or affirmative misinformation about deportation was

presented. In these cases, question seventeen was answered in

the plea form as required.

It is well-settled that a plea must be entered into

knowingly, intelligently, and voluntarily. State v. Johnson,

182 N.J. 232, 236 (2005). Prior to executing a guilty plea, a

defendant must "complete, insofar as applicable, and sign the

appropriate form prescribed by the Administrative Director of

the Courts." R. 3:9-2. Moreover, "the defendant must

understand the nature of the charge and the consequences of the

plea" including "consequences that are 'direct' or 'penal.'"

Johnson, supra, 182 N.J. at 236 (quoting State v. Howard, 110

N.J. 113, 122 (1988)). See also State v. Bellamy, 178 N.J. 127,

139 (2003) ("We continue to stress the necessity of determining

whether a consequence is direct or penal when analyzing whether

a defendant must be informed of a particular consequence.").4

4
Despite our previous recognition that "the [Supreme] Court
has indicated its inclination to depart from the traditional
differentiation between the penal consequences of a plea and its
civil collateral consequences [,]" State v. Maldon, 422 N.J.
Super. 475, 483 (App. Div. 2011), the Court has not yet
abandoned that analysis.

8 A-0849-14T2
 The possibility of deportation is "similar to a penal

consequence that requires notice to defendant."5 Nuñez-Valdéz,

supra, 200 N.J. at 138. See also Gaitan, supra, 209 N.J. at

372-73 ("Prior to Nuñez-Valdéz, immigration consequences had

been categorized as collateral consequences of a guilty plea as

to which there was no obligation to warn defendants.").

Therefore, the plea form "should instruct defendants of their

right to seek legal advice regarding their immigration status."

Nuñez-Valdéz, 200 N.J. at 144. Such a requirement provides

"[c]larity as to the direct and penal consequences of a

defendant's guilty plea" and "serves to ensure that a

defendant's 'expectations [are] reasonably grounded in the terms

of the plea bargain.'" Johnson, supra, 182 N.J. at 237

(alteration in original) (quoting State v. Marzolf, 79 N.J. 167,

183 (1979)). A defendant should not be completely unaware or

uninformed "as to a material element of a plea negotiation,

which [he] has relied [on] in entering his plea." Id. at 236-37

(alteration in original) (quoting State v. Nichols, 71 N.J. 358,

361 (1976)).

5
Although the decision in Nuñez-Valdéz did not turn on "the
traditional dichotomy" of "whether consequences of a plea are
penal or collateral," the Court nonetheless viewed deportation
as "similar to a penal consequence." Nuñez-Valdéz, supra, 200
N.J. at 138.

9 A-0849-14T2
 Here, defendant did not understand English while executing

the plea form or while entering his guilty plea before the

court. Although defendant's attorney did not provide false

advice or affirmative misinformation to defendant about his risk

of deportation, we nonetheless conclude the attorney's

performance was deficient for failing to have defendant review

every question on the plea form. Had he done so, defendant

would have been on notice of the possibility of deportation,

something that a defendant must be at a minimum aware of, prior

to entering a knowing, intelligent, and voluntary plea. Without

being given the opportunity to review every question on the plea

form, we conclude that defendant was provided with

representation that was not "reasonable[] under prevailing

professional norms."6 Gaitan, supra, 209 N.J. at 350 (quoting

Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L.

Ed. 2d at 694).

Reversed and remanded. We do not retain jurisdiction.

6
We note defendant's argument that his attorney's performance
was deficient for failing to have defendant complete the plea
form was not raised at the trial level. Therefore, our review
is governed by the plain error standard. R. 2:10-2. Plain
error is that which is "clearly capable of producing an unjust
result." Ibid. We conclude the error here, was "clearly
capable of producing an unjust result." Ibid.

10 A-0849-14T2