STATE OF NEW JERSEY VS. PEDRO M. DECASTRO (06-12-1105, UNION COUNTY AND STATEWIDE)

S
                                NOT FOR PUBLICATION WITHOUT THE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-2992-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

PEDRO M. DECASTRO,
a/k/a PEDRO M. PEREIRA
DE CASTRO, and PEDRO
DESASTRA,

     Defendant-Appellant.
________________________

                   Submitted September 23, 2020 – Decided November 17, 2020

                   Before Judges Whipple and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 06-12-1105.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Cody T. Mason, Assistant Deputy Public
                   Defender, of counsel and on the briefs).

                   Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                   attorney for respondent (Milton S. Leibowitz, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief).
PER CURIAM

      Defendant Pedro DeCastro appeals from the February 21, 2019, denial of

his post-conviction relief (PCR) petition without an evidentiary hearing and his

concurrent motion to withdraw his guilty plea. In his petition, defendant asserts

that his plea counsel failed to properly advise him of the immigration

consequences of his plea. We reverse and remand for an evidentiary hearing

because based on our review of the record there are disputed material facts.

      Defendant was brought to the United States from Portugal at a young age

by his mother. He is a permanent resident and is currently in the custody of

Immigration and Customs Enforcement (ICE) awaiting deportation.

      Our review of the record demonstrates the following timeline. In 2004,

defendant was represented by Kevin C. Orr on Essex County Indictment No. 03-

12-3775. In connection with that indictment, Orr sent a March 2004 letter to

Assistant Essex County Prosecutor Elizabeth Duelly which states:

            I write in furtherance of our last discussion in
            connection with the above pending PTI application.

            Pursuant to the Illegal Immigration Reform and
            Immigrant Responsibility Act . . . 8 U.S.C.A. §
            1227(a)(2)(B)(i), Mr. DeCastro is subject to removal
            from the United States as a "deportable alien" if he is
            convicted of any type of drug offense other than a

                                                                         A-2992-18T4
                                       2
               single offense involving possession for one's own use
               of [thirty] grams or less of marijuana. Federal Law, 8
               U.S.C.A. § 1229(d)(1) requires that the "Attorney
               General shall begin any removal proceeding as
               expeditiously as possible after the date of the
               conviction."

               Mr. DeCastro has been raised by his mother (i.e., a
               single parent) in the United States from a very young
               age. He has no contacts or ties to his native country,
               Portugal. A conviction would result in his exile to a
               foreign land.

               We ask that in evaluating his application, the
               aforementioned is considered.

Defendant was copied on the letter, but asserted at his PCR hearing he never

received it.

      Two years later, in December 2006, under Indictment No. 06-12-1105, a

Union County grand jury charged defendant with two counts of third-degree

possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1),

and two counts of third-degree possession with intent to distribute CDS,

N.J.S.A. 2C:35-5(a)(1) and 35-5(b). Defendant was again represented by Orr.

In January 2007, defendant pleaded guilty to third-degree possession with intent

to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and 35-5(b), in exchange for a

recommended four-year sentence. Question seventeen of the plea form asked:

"Do you understand that if you are not a United States citizen or national you


                                                                        A-2992-18T4
                                         3
may be deported by virtue of your plea of guilty?" Of the three possible

answers—"YES," "NO," and "N/A"—"N/A" was circled. At the plea hearing,

defendant said "yes" when the court asked whether he was a United States

citizen. In March 2007, the Union County court imposed the agreed-upon

sentence.

      Around the same time, defendant also was facing additional drug charges

in Essex County under Indictments 06-12-3935 and 06-08-2615. In March 2007,

defendant entered guilty pleas under those indictments while being represented

by Orr. Question seventeen of the plea form again shows "N/A" was circled.

      Five years later, defendant was charged under Union County Indictment

11-08-0836, and again he was represented by Orr. He pleaded guilty to first-

degree possession with intent to distribute, N.J.S.A. 2C:35-5(b)(1), in January

2013, with a recommended sentence of twelve years. On that plea form, the

answer to Question seventeen, which asks whether the defendant is a citizen of

the United States, is circled "yes."1

      On July 25, 2018, defendant filed a PCR petition and motion to withdraw

his plea under Union County Indictment 06-12-1105, asserting that Orr



1
   We note, the Administrative Office of the Courts' revised plea form that was
in use in 2011 no longer had N/A as an option to answer the citizenship question.
                                                                         A-2992-18T4
                                        4
misadvised him of the immigration consequences of his plea.            Defendant

certified that Orr told him "that a permanent resident was treated the same as a

citizen," meaning he would not face "deportation consequences" by pleading

guilty and that Orr did not advise him that his offense "constituted an aggravated

felony, mandating deportation." Defendant certified the misadvice caused him

to identify as a United States citizen at the plea hearing and that Orr circled

"N/A" in response to the citizenship question on the plea form. Defendant also

asserted that Orr's misadvice caused the defendant to circle "N/A" in response

to the citizenship question on the 2007 Essex County plea form and to identify

as a citizen on the January 2013 Union County plea form. In the July 2018 PCR

petition, defendant also sought relief from the time bar, asserting he did not

know that Orr had misadvised him until November 2016.              At that point,

defendant was in prison serving his sentence on the 2013 Union County matter

and ICE agents told him he would be deported. Defendant states this is when

he realized that a permanent resident was not the equivalent of a citizen of the

United States.

      Defendant also certified that, after discussing his pending deportation with

Orr, counsel only filed a PCR petition regarding the 2013 Union County matter

and did not advise him to challenge his earlier conviction for Union County


                                                                          A-2992-18T4
                                        5
Indictment 06-12-1105. Thus, while the 2013 conviction was challenged and

vacated, a PCR petition was not filed in this case until defendant retained new

counsel in 2018.

      Defendant also moved to withdraw his plea under Rule 3:21-1, asserting

that because he was unaware of the immigration consequences and because Orr

never advised him that he could file a motion to suppress evidence regarding a

warrantless search, his plea was not knowing and voluntary. The petition and

motion were argued in January 2019, and the PCR judge denied the petition and

motion in February 2019, without holding an evidentiary hearing.

      The court denied the petition without an evidentiary hearing because

pursuant to defendant's certification, his answer of "N/A" to the plea

immigration question, and incorrect identification as a citizen at the plea hearing

"do not indicate that plea counsel provided . . . affirmative misinformation or

misleading advice." Rather, the court found that the responses only showed that

defendant "provided the court with inaccurate information[,]" and that it was

"extremely unlikely" that Orr was to blame since he wrote the 2004 letter to the

Essex County Prosecutor's Office stating that defendant could be deported.

      The court also found that the petition was untimely under Rule 3:22-12(a)

because the 2004 letter demonstrated defendant knew he could be deported


                                                                           A-2992-18T4
                                        6
before his contact with ICE, and even if defendant learned about the risk of

deportation in 2016, his petition was not filed within a year of obtaining that

information.

      The court also denied defendant's motion to withdraw his plea under Rule

3:21-1, concluding defendant had not asserted a colorable claim of innocence,

he did not show that he was misadvised, there was a plea bargain, and the State

would be prejudiced by his withdrawal. This appeal followed.

      On appeal, defendant argues:

            POINT I.
            THE COURT ERRED IN DENYING THE PCR
            PETITION   WITHOUT    AN   EVIDENTIARY
            HEARING BECAUSE DEFENDANT PRESENTED A
            PRIMA FACIE CASE THAT HE WAS PREJUDICED
            BY PLEA COUNSEL'S MISADVICE ABOUT HIS
            RISK OF DEPORTATION.

            A. Defendant Established a Prima Facie Claim that Plea
            Counsel Provided Inaccurate Immigration [Advice]
            Amounting to Ineffective Assistance of Counsel.

            B. The PCR Petition Was Not Time-Barred Because the
            Delay in Filing Was Due to Excusable Neglect.

            POINT II.
            THE MATTER SHOULD BE REMANDED FOR AN
            EVIDENTIARY HEARING ON DEFENDANT'S
            MOTION TO WITHDRAW HIS GUILTY PLEA.




                                                                       A-2992-18T4
                                      7
              A. The Plea Was Not Knowingly Entered Due to the
              Misadvice of Counsel and a Hearing Was Needed to
              Resolve that Issue.

              B. The Slater[2] Factors Favored Withdrawal and the
              Court Erred in Denying the Motion Without an
              Evidentiary Hearing.

              POINT III.
              THE MATTER SHOULD BE REMANDED TO A
              DIFFERENT COURT GIVEN THE COURT'S
              PREMATURE CREDIBILITY FINDINGS.

        We first address timeliness. When a petitioner claims excusable neglect

for a filing beyond the time prescribed by the rules, the petition itself must allege

the facts relied upon to support that claim. State v. Mitchell, 

126 N.J. 565

, 576

(1992). Defendant asserts in his petition that in November 2016, while serving

a sentence at Northern State Prison, he was informed by ICE agents that an

immigration detainer had been lodged against him and that he would be

deported. He asserted that prior to this time he did not know his convictions

required mandatory deportation and also that he became aware for the first time

that a permanent resident was not the equivalent of a naturalized citizen.

Defendant asserts he discussed the situation with Orr, who advised him to file a

petition for PCR on indictment 11-08-0836. That petition was granted, and on



2
    State v. Slater, 

198 N.J. 145

(2009).
                                                                             A-2992-18T4
                                            8
December 18, 2017, defendant pleaded guilty to a different offense and was

resentenced.


      Defendant asserts he did not receive Orr's 2004 letter that stated he was

deportable. He asserts excusable neglect in that he did not become aware of his

deportable status until 2016. Accepting defendant's claim as true, it still means

he was aware of the deportation consequences by November 2016 and

nevertheless did not file this petition until 2018. He further asserts excusable

neglect because Orr filed a successful petition in January 2017 on the later Union

County indictment. The defendant asserts Orr did not advise him to file a similar

petition for the earlier matter herein. In particular, he states "[b]ecause Mr. Orr

represented me on the PCR for Indictment 11-08-0836, I did not believe I could

challenge the effectiveness of his representation in my other matters. Once the

PCR was granted and the case resolved, I sought out different counsel to

represent me on those other matters."

      Under Rule 3:22-12(a), a petition for reasons other than to correct an

illegal sentence must be filed within five years of entry of the judgment of

conviction, unless there is a showing of excusable neglect or injustice. We

recognize the rule's time constraint may only be relaxed for exceptional

circumstances. State v. Afanador, 

151 N.J. 41

, 52 (1997). "As time passes,

                                                                           A-2992-18T4
                                        9
justice becomes more elusive and the necessity for preserving finality and

certainty of judgments increases."

Ibid. Accordingly, “[a]bsent compelling,

extenuating circumstances, the burden to justify filing a petition after the five -

year period will increase with the extent of the delay."

Ibid. Nonetheless, “a court

may relax the time bar if adherence to it would result

in an injustice." State v. McQuaid, 

147 N.J. 464

, 485 (1997). We think the

overall circumstances here require relaxation of the time bar.

       In State v. Gaitan, 

209 N.J. 339

(2012), the Supreme Court held that

attorneys "have specific duties as to how they must advise pleading noncitizen

criminal defendants, depending on the certainty of immigration consequences

flowing from the plea."

Id. at 380.

Because an attorney is required to advise a

client "when removal is mandatory," the effect on the Strickland v. Washington3

standard    "represents    a   qualitatively   new   rule   of   expected   attorney

performance[.]" 

Gaitan, 209 N.J. at 380

. The Court ruled that from that point

forward,

             counsel's failure to point out to a noncitizen client that
             he or she is pleading to a mandatorily removable
             offense will be viewed as deficient performance of
             counsel; affirmative advice must be conveyed as part of
             the counseling provided when a client enters a guilty
             plea to a state offense that equates to an aggravated

3
    

466 U.S. 668

(1984).
                                                                             A-2992-18T4
                                         10
            felony [under federal law], triggering eligibility for
            mandated removal.

            [Ibid.]

      The Court stressed that transcripts of plea colloquies must reflect a

defendant's clear understanding of the consequence of his guilty plea.

Id. at 381.

"[I]f counsel provided false information, or inaccurate and affirmatively

misleading advice about removal consequences of a guilty plea, then deficiency

may exist for purposes of establishing . . . a prima facie ineffective assistance of

counsel claim entitling defendant to an evidentiary hearing in a PCR

proceeding."

Ibid. A defendant is

only entitled to an evidentiary hearing where he establishes

a prima facie case in support of PCR. See R. 3:22-10(b). Viewing the facts in

the light most favorable to defendant on this record, as we must, if he was

incorrectly advised regarding the legal effect of his plea on his immigration

status, that may warrant PCR. State v. Nuñez-Valdéz, 

200 N.J. 129

(2009); State

v. Marshall, 

148 N.J. 89

, 158 (1997); State v. Preciose, 

129 N.J. 451

, 462-63

(1992). An evidentiary hearing is therefore necessary to develop facts important

to the ultimate decision. State v. Porter, 

216 N.J. 343

, 355 (2013). Thus, we

vacate the order and remand for that purpose.



                                                                            A-2992-18T4
                                        11
      Defendant also asserts error in the court's denial of his motion to withdraw

his guilty plea because he pleaded guilty without full knowledge of the

immigration consequences he faced, and also because Orr did not file a motion

to suppress. Because we are remanding for an evidentiary hearing, we need not

address these issues at this time.

      Reversed and remanded for an evidentiary hearing consistent with this

opinion. We do not retain jurisdiction.




                                                                          A-2992-18T4
                                      12

Add comment

By

Recent Posts

Recent Comments