State v. Gaitan

• Decision Date: 28 February 2012
• Citation: 37 A.3d 1089,209 N.J. 339
• Court: New Jersey Supreme Court
• Parties: STATE of New Jersey, Plaintiff–Appellant, v. Frensel GAITAN, Defendant–Respondent.State of New Jersey, Plaintiff–Appellant, v. Rohan Goulbourne, Defendant–Respondent.

209 N.J. 339

37 A.3d 1089

STATE of New Jersey, Plaintiff–Appellant,

v.Frensel GAITAN, Defendant–Respondent.State of New Jersey, Plaintiff–Appellant,

v.Rohan Goulbourne, Defendant–Respondent.

Supreme Court of New Jersey.

Argued Nov. 9, 2011.Decided Feb. 28, 2012.

Frank J. Ducoat, Deputy Attorney General, argued the cause for appellant State of New Jersey (Paula T. Dow, Attorney General, attorney).

Carol M. Henderson, Assistant Attorney General, argued the cause for appellant State of New Jersey (Paula T. Dow, Attorney General, attorney).

Mark H. Friedman, Assistant Deputy Public Defender, argued the cause for respondent Frensel Gaitan (Joseph E. Krakora, Public Defender, attorney).Christopher T. Howell, Bloomfield, argued the cause for respondent Rohan Goulbourne.Jeffrey S. Mandel, Morristown, argued the cause for amici curiae Association of Criminal Defense Lawyers of New Jersey and American Civil Liberties Union of New Jersey (PinilisHalpern, attorneys).Justice LaVECCHIA delivered the opinion of the Court.

These companion appeals arose out of defendants' petitions for post-conviction relief (PCR). In both cases, defendants were lawful permanent residents who were indicted for drug offenses and entered guilty pleas. The guilty pleas rendered both defendants removable ¹ under the Immigration and Nationality Act (INA), 8 U.S.C.A. § 1227(a)(2). Each alleges that he received ineffective assistance of counsel contrary to the standards set forth in State v. Nuñez–Valdéz, 200 N.J. 129, 975 A.2d 418 (2009), and Padilla v. Kentucky, 559 U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), because his attorney provided either no or incomplete information about the immigration consequences of a guilty plea, rendering the advice false and misleading.

In Nuñez–Valdéz, supra, we agreed that defendant demonstrated that he received ineffective assistance of counsel under Sixth Amendment standards when initial counsel had provided false advice assuring that deportation would not flow from defendant's guilty plea, and substituted counsel augmented that with affirmatively misleading information concerning the deportation consequences of defendant's plea of guilty, a matter that was of material interest to defendant at the time of his plea. 200 N.J. at 140–42, 975 A.2d 418. The United States Supreme Court went further in Padilla, supra, holding that defense attorneys now must advise their clients of potential immigration consequences of pleading guilty or risk providing constitutionally deficient assistance of counsel. 559 U.S. at ––––, 130 S.Ct. at 1484, 176 L.Ed.2d at 297. That standard for effective assistance of counsel was not fixed, for constitutional purposes, prior to Padilla.

The present appeals squarely raise the question of the retroactive application of the broader Padilla holding. Because of the shared issue of Padilla's retroactivity, we consolidated these appeals.

I.

A.

To anchor our analysis of the legal question raised by defendants, we begin with a brief summary of the circumstances giving rise to their PCR petitions. Additional factual detail is provided hereinafter.

On November 16, 2004, defendant Frensel Gaitan was indicted in Camden County for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35–10(a)(1); third-degree distribution of a CDS to a minor, N.J.S.A. 2C:35–5(a)(1), (b)(3), and N.J.S.A. 2C:35–8; and distribution of a CDS within one thousand feet of a school, N.J.S.A. 2C:35–7. He pled guilty to the charge of third-degree distribution of a CDS within one thousand feet of a school on June 27, 2005, and was sentenced on October 7, 2005, to five years' probation. Gaitan did not file a direct appeal.

In 2008, based on the drug conviction, which constitutes an aggravated felony, a removable offense under the INA, see 8 U.S.C.A. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii), Gaitan was removed. He thereafter filed a PCR petition on May 28, 2008, alleging ineffective assistance of counsel. Although Gaitan had responded “yes” to Question 17 on the plea form, which asked “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,” he asserted that counsel failed to warn him that his plea carried with it potential immigration consequences. That failure, according to Gaitan, constituted ineffective assistance of counsel. The PCR court denied defendant's petition on March 20, 2009, finding that defendant's affirmative answer to Question 17 implied that he was aware of his plea's possible impact on his immigration status.

The Appellate Division reversed, concluding that defense counsel's failure to provide advice on the possibility of deportation constituted attorney deficiency for the purposes of Gaitan's ineffective assistance of counsel claim. State v. Gaitan, 419 N.J.Super. 365, 369–70, 17 A.3d 227 (App.Div.2011). The panel held that, regardless of whether that standard of attorney deficiency constituted a new rule, Gaitan was entitled to a remand for an evidentiary hearing on his claim. Id. at 373–74, 17 A.3d 227.

The State then filed a petition for certification, which was granted. State v. Gaitan, 206 N.J. 330, 20 A.3d 436 (2011).

B.

Defendant Rohan Goulbourne was arrested in Paterson in July 2007 and indicted by a Passaic County Grand Jury on charges of fourth-degree possession of a CDS, N.J.S.A. 2C:35–10(a)(3); two counts of fourth-degree distribution of a CDS, N.J.S.A. 2C:35–5(a)(1) and (b)(12); two counts of third-degree distribution of a CDS within five hundred feet of a public building, N.J.S.A. 2C:35–7.1(a) and N.J.S.A. 2C:35–5(a); two counts of third-degree distribution of a CDS within one thousand feet of a school, N.J.S.A. 2C:35–7 and N.J.S.A. 2C:35–5(a); third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35–5(a)(1) and (b)(11); third-degree possession of a CDS with intent to distribute within one thousand feet of a school, N.J.S.A. 2C:35–7 and N.J.S.A. 2C:35–5(a); second-degree possession of a CDS with intent to distribute within five hundred feet of a public building, N.J.S.A. 2C:35–7.1(a) and N.J.S.A. 2C:35–5(a); and fourth-degree resisting arrest, N.J.S.A. 2C:29–2(a)(2).

Following negotiations between the prosecutor and the public defender, Goulbourne agreed to plead guilty to one count of possession of a CDS with intent to distribute within one thousand feet of a school. The prosecutor, in return, recommended a sentence of three years' imprisonment with a fifteen-month period of parole ineligibility. At a March 2008 plea hearing, both defense counsel and the court informed Goulbourne that he “may very well” be deported as a result of the plea. The court also noted that Goulbourne answered all the questions on the plea form, which included Question 17, and that he signed the form after reviewing it with his attorney. Satisfied that Goulbourne knowingly and voluntarily was pleading guilty, the court accepted the plea. The court imposed the recommended sentence, and Goulbourne did not appeal.

Pursuant to the INA, on July 11, 2008, Goulbourne was charged with removal based on his conviction for a CDS offense, which qualified as an aggravated felony. 8 U.S.C.A. §§ 1101(a)(43)(B), 1227(a)(2)(A)(iii). He was paroled to U.S. Immigration and Customs Enforcement on May 11, 2009.² Goulbourne filed a PCR petition in September 2009, alleging that his counsel was ineffective for failing to explain that he would be deported if he pled guilty and for neglecting to advise him of his right to speak with an immigration attorney. The PCR court conducted an evidentiary hearing on April 8, 2010. After reviewing the testimony, the PCR court determined that, although Goulbourne appeared to be focused during his plea hearing on how much jail time he would be required to serve, the PCR court would give Goulbourne “the benefit of the doubt” that he would not have pled guilty had he been better advised of the certainty of deportation and, specifically, of his right to consult an immigration attorney. Accordingly, finding that the advice rendered to Goulbourne was “incomplete,” the PCR court granted the PCR petition and allowed Goulbourne to withdraw his plea. The Appellate Division affirmed in an unpublished opinion.

The Attorney General superseded the Passaic County Prosecutor's Office and moved for leave to appeal. We granted the motion, State v. Goulbourne, 207 N.J. 226, 23 A.3d 933 (2011), and consolidated the appeal with the appeal in State v. Gaitan.

II.

A.

The Sixth Amendment of the United States Constitution and the New Jersey Constitution guarantee criminal defendants the right to counsel, which right requires that defendants receive “the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763, 773 n. 14 (1970)); see State v. Fritz, 105 N.J. 42, 58, 519 A.2d 336 (1987) (adopting Strickland standard for ineffective assistance of counsel claims under Article I, Paragraph 10 of New Jersey Constitution). To establish 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. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Fritz, supra, 105 N.J. at 58, 519 A.2d 336; see also R. 3:22–1, –2 (establishing right to petition for post-conviction relief and setting forth grounds for relief, which include federal and state constitutional bases for ineffective assistance of counsel claims).

The right to counsel guarantees defendants the right “to competent counsel.” State v. DiFrisco, 174 N.J. 195, 220, 804 A.2d 507 (2002). Attorneys are held to a standard of “reasonableness under prevailing...