State v. Santos
| Citation | 210 N.J. 129,42 A.3d 141 |
| Parties | STATE of New Jersey, Plaintiff–Appellant, v. Juan Pablo SANTOS, Defendant–Respondent. |
| Decision Date | 08 May 2012 |
| Court | United States State Supreme Court (New Jersey) |
OPINION TEXT STARTS HERE
Samuel J. Marzarella, Supervising Assistant Prosecutor, argued the cause for appellant (Marlene Lynch Ford, Ocean County Prosecutor, attorney).
Ubel G. Velez, a member of the Pennsylvania bar, argued the cause for respondent (Maritza Colon, attorney).
Michael J. Williams, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Jeffrey S. Chiesa, Attorney General, attorney).
This is a post-conviction relief (PCR) matter. Defendant Juan Pablo Santos, a Mexican citizen, had been removed from the United States to Mexico in 2008 within weeks of sentencing following his plea to third-degree endangering the welfare of a child. Santos had been found in bed with a fourteen-year-old girl, with whom he had been living and with whom he confessed to having an ongoing sexual relationship. At some point within the year following his removal, he illegally reentered the United States, was discovered, and was returned to Mexico after the United States Department of Homeland Security reinstated its removal order. He thereafter filed a PCR petition in which he claimed ineffective assistance of counsel on the asserted basis that he was not informed that removal was a possible consequence of his guilty plea. The PCR court granted Santos an evidentiary hearing on his petition.
We initially granted leave to appeal to consider troublesome practical aspects to the way in which that evidentiary PCR hearing was to be conducted. Because Santos now resides in Mexico and is legally barred from reentering the United States, he filed a motion seeking permission to testify via telephone. Over the State's strenuous objection, the court granted the motion. The matter was stayed by this Court and, after the Appellate Division denied the State's interlocutory appeal, we granted leave to appeal. State v. Santos, 207 N.J. 226, 23 A.3d 933 (2011). No evidentiary proceedings have occurred yet.
Telephone testimony has received scant attention in our case law. To the extent it has been addressed, it has been viewed with some skepticism and has been approved for use in only limited circumstances, chiefly due to the obstacles it creates for the factfinder in verifying the identity and assessing the demeanor of witnesses and rendering credibility determinations. While the proper use of telephone testimony, or the more modern forms of video communication, in PCR proceedings deserves careful attention, recent developments in the law suggest that this case is not an appropriate vehicle for considering alternative means of securing live testimony from a distant essential witness. Issuance of the decision in State v. Gaitan, 209 N.J. 339, 37 A.3d 1089 (2012), calls into serious question the validity of the grant of an evidentiary hearing in this matter. Accordingly, we determine that the grant of an evidentiary hearing must be reversed and the matter remanded to the trial court for complete reevaluation as to whether Santos can meet the standard for entitlement to an evidentiary hearing under Gaitan, particularly in light of the later-produced affidavit from Santos's defense counsel and related evidence which the PCR court did not have.
In June 2005, police discovered defendant Santos naked and in bed with a fourteen-year-old girl, A.A., in Santos's home in Lakewood Township. He was arrested and, after receiving Miranda1 warnings, admitted that he lived with the girl and that they had an ongoing sexual relationship. As a result, he was indicted by an Ocean County grand jury on one count of second-degree sexual assault, N.J.S.A. 2C:14–2(c) (4), and one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24–4(a).
Following negotiations with Santos's counsel, Norman Smith, the State proposed a plea agreement under which Santos would plead guilty to third-degree endangering the welfare of a child in exchange for the State's agreement to drop the sexual assault charge and recommend to the sentencing court that his term of imprisonment be limited to time served. Santos would also be required to register as a sex offender and submit to the lifetime parole supervision required by Megan's Law, N.J.S.A. 2C:14–2(c)(4). After consulting with Smith on more than one occasion, Santos decided to accept the deal.
On March 14, 2008, Santos appeared in Superior Court to enter his guilty plea. Prior to the hearing, Santos, who speaks only Spanish, met with Smith and a court interpreter to complete the plea form and other required paperwork. In response to Question 17 on the plea form, which read: “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?,” Santos circled “Yes.” Santos also indicated on the form that he was satisfied with the advice he had received from Smith and had no questions concerning the plea. However, when the hearing began, Santos informed the court that he no longer wished to enter the plea and that he wanted to speak to a Spanish-speaking attorney named Carlos Ferreira. The court granted Santos leave to seek alternate counsel and rescheduled the plea hearing.
Ten days later, Santos and counsel appeared for the rescheduled plea hearing. An interpreter for Santos was also present. Noting that Santos was still represented by Smith, the court asked Smith to explain what had transpired since the earlier proceeding. Smith stated that Santos had consulted with Ferreira on two occasions and that Ferreira had advised Santos that accepting the plea deal was “the only rational course.” Smith further explained that Santos had hesitated at the prior proceeding because he had not fully understood the consequences of the plea, but that all of his questions had since been answered. Following Smith's explanation, the court, through the interpreter, asked Santos to verify that he understood the terms of the plea:
....
Smith engaged Santos in a short colloquy to establish a factual basis, and the court accepted his guilty plea to third-degree endangering the welfare of a child. On July 11, 2008, Santos was sentenced to the agreed-upon terms of time served and lifetime parole supervision.
Less than three weeks after he was sentenced, the United States Department of Homeland Security took Santos into custody and served him with an order to appear before an immigration judge. The order indicated that Santos was subject to removal from the United States under section 237(a)(2)(E)(i) of the Immigration and Nationality Act 2 because he had “been convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment.” Santos submitted a written statement conceding the truthfulness of the allegations contained in the order and requesting that he be removed to Mexico. On August 14, 2008, the immigration judge found that Santos's request “constitutes a conclusive determination of the alien's removability” and issued an order of removal to Mexico, which was executed three weeks later.
Thereafter, Santos illegally reentered the United States in violation of the removal order. The record does not disclose the precise date on which he reentered or his reasons for returning. He was discovered and the Department of Homeland Security again removed him to Mexico after reinstating its removal order on August 17, 2009.3
On August 28, 2009, Santos filed a PCR petition alleging that he had not read, and Smith had not explained, the plea form before he signed it. Santos also argued that his plea lacked an adequate factual basis. Several months after defendant filed the petition, the United States Supreme Court issued Padilla v. Kentucky, ––– U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), in which it held that defense counsel has an affirmative duty to inform a criminal defendant of the immigration consequences of a guilty plea. On July 31, 2010, Santos filed an amended petition, adding the allegation that Smith never informed him that deportation was a possible consequence of his plea and contending that he would not have entered the plea had he been properly advised.
A hearing on the petition was held on November 3, 2010, at which the court determined that Santos's allegations that counsel failed to inform him of the immigration consequences of his plea were sufficient to establish a prima facie claim of ineffective assistance of counsel and that Santos was entitled to an evidentiary hearing, which the court scheduled for January 12, 2011. Before the hearing, Santos filed a motion seeking leave to testify telephonically from Mexico. The court converted the January 2011 evidentiary hearing into a hearing on whether to grant the motion, at which Santos's PCR counsel...
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