NOT FOR PUBLICATION WITHOUT THE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-3219-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ZBIGNIEW KOLODZIEJ,
Defendant-Appellant.
_______________________________
Submitted March 27, 2017 – Decided April 5, 2017
Before Judges Sabatino and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
04-06-0896.
Law Offices of Peter G. Aziz & Associates LLC,
attorneys for appellant (Peter G. Aziz, 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 Zbigniew Kolodziej appeals the trial court's denial
of his petition for post-conviction relief ("PCR"). An immigrant
from Poland, defendant contends that he was deprived of the
effective assistance of counsel when he pled guilty to an offense
in 2004. He alleges he was not provided by his attorney with
sufficient advice concerning the deportation consequences of his
guilty plea. We affirm.
Defendant was charged in October 2004 with assault by auto
arising out of an incident in November 2003 in which the car he
was driving struck another vehicle on the highway. 1 Defendant
abandoned his car and fled from the scene of the accident. Police
found an empty bottle of vodka in the car. When he was apprehended
by the police a short time later, his blood alcohol content was
measured at .224, well over the legal limit.
Defendant negotiated through his counsel a plea agreement
with the State. He appeared before the trial court on October 4,
2004, and pled guilty to the assault by auto charge. He admitted
on the record to the court that he was not a United States citizen,
and was advised that he could get deported as a consequence of his
guilty plea.
Consistent with the plea agreement, defendant was sentenced
on January 6, 2005 to a three-year probationary term with 270 days
1
The appellate record does not contain a transcript of the plea
and sentencing hearings. These facts are derived from the parties'
briefs, defendant's appendix, and the PCR hearing. In any event,
these omissions are inconsequential because defendant does not
appear to contest the PCR judge's quotations from the plea and
sentencing proceedings.
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in the county jail. Both at the plea hearing and sentencing, the
court provided defendant with a Polish interpreter.
Defendant did not file a direct appeal.
Eight years later, defendant filed his PCR petition in
November 2013. He alleged that he had been deprived of his
constitutional rights at his plea and sentencing because allegedly
he was not sufficiently alerted to the likelihood that he would
be deported based upon this conviction. The trial court ruled
that defendant had no viable claim of ineffectiveness under the
applicable law, and dismissed his petition without an evidentiary
hearing.
On appeal, defendant raises the following arguments in his
brief:
I. THE CONSEQUENCES OF DEFENDANT'S INITIAL
GUILTY PLEA ARE PENAL RATHER THAN COLLATERAL,
CONSONANT WITH THE HOLDING OF STATE V. NUNEZ.
[sic] 200 N.J. 129 [2009]. THE CONSEQUENCES
FACED BY DEFENDANT AS A DIRECT CONSEQUENCE OF
HIS IMMIGRATION STATUS ARE PUNITIVE.
II. THE CONSEQUENCES OF DEFENDANT'S GUILTY
PLEA ON HIS IMMIGRATION STATUS IS VIOLATIVE
OF THE SIXTH AMENDMENT'S PROHIBITION OF DOUBLE
JEOPARDY.
III. THE CONSEQUENCES OF DEFENDANT'S CRIMINAL
CONVICTION IN REGARD TO HIS IMMIGRATION STATUS
REPRESENTS THE CRIMINALIZATION OF DEFENDANT'S
IMMIGRATION STATUS AND IS THEREFORE
UNCONSTITUTIONAL.
3 A-3219-15T1
Having considered these arguments, we affirm the dismissal of
defendant's PCR petition, substantially for the reasons set forth
in Judge Ronald B. Sokalski's oral opinion dated March 8, 2016.
Although the State initially argues that defendant's petition
was untimely and procedurally barred, we need not reach those
arguments because defendant's claims are clearly without merit
under the law.
The governing law regarding the deportation consequences of
a guilty plea is now clear. The Supreme Court of the United States
has held that criminal defense attorneys are affirmatively
obligated to inform their clients about the deportation risks of
entering a guilty plea. Padilla v. Kentucky, 559 U.S. 356, 367,
130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). However,
the Court held that Padilla does not apply retroactively. Chaidez
v. United States, U.S. , , 133 S. Ct. 1103, 1105, 185
L. Ed. 2d 149, 154 (2013).
The New Jersey Supreme Court has likewise held that Padilla
is a new rule to be applied prospectively only. State v. Gaitan,
209 N.J. 339, 371-72 (2012), cert. denied, ___ U.S. ___, 133 S.
Ct. 1454, 185 L. Ed. 2d 361 (2013); see also State v. Santos, 210
N.J. 129, 143 (2012). For cases like this one that preceded
Padilla, constitutionally ineffective assistance of plea counsel
can only be established where counsel provided affirmatively
4 A-3219-15T1
misleading advice to a defendant about the immigration
consequences of a guilty plea. See State v. Nuñez-Valdéz, 200
N.J. 129, 139-43 (2009) (where defense counsel informed the
defendant there would be no immigration consequences arising from
his plea); see also Santos, supra, 210 N.J. at 143.
This case plainly does not meet the criteria of pre-Padilla
law. At the time defendant's guilty plea was accepted in October
2004 and he was sentenced in January 2005, the law did not impose
upon his criminal defense attorney any affirmative obligation to
provide advice about deportation consequences. Notably, Question
17 on the plea form commonly used at the time stated that the
defendant "may" be deported. That "may" term was repeated, both
at defendant's plea hearing and at his sentencing by the trial
court, where defendant specifically acknowledged that he
understood the possibility that he might be deported after pleading
guilty. Nothing more was required under the law at the time.
There was no need for the PCR judge in this case to conduct
an evidentiary hearing. Defendant has failed to present a viable,
prima facie case that would justify such a hearing. State v.
Preciose, 129 N.J. 451, 462-63 (1992).
Affirmed.
5 A-3219-15T1