                                NOT FOR PUBLICATION WITHOUT THE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-1000-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CARLOS J. AMORIM,

     Defendant-Appellant.
______________________________

                    Submitted December 4, 2018 – Decided January 10, 2019

                    Before Judges Sabatino and Mitterhoff.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Accusation No. 05-05-0490.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Frank M. Gennaro, Designated Counsel;
                    William P. Welaj, on the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Frank J. Ducoat,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Carlos Amorim appeals from the Law Division's May 19, 2017

order denying his petition for post-conviction relief ("PCR"). We affirm.

      We briefly recite the relevant facts from the record. In 2005, defendant

was charged with numerous drug offenses in a six-count accusation. On May

27, 2005, defendant pled guilty, pursuant to a plea agreement, to one count of

conspiracy to commit possession with intent to distribute a controlled dangerous

substance. During the plea hearing, defendant testified that he had reviewed and

understood the plea form and that he had no questions for his attorney or the

court. One question on the plea form asked if defendant understood "that if you

are not a United States citizen or national, you may be deported by virtue of your

guilty plea?" Defendant circled "yes" in response to this question.

      Additionally, the plea court asked defendant if he understood that his plea

may have immigration consequences and if he had discussed the immigration

consequences with his attorney. Defendant answered affirmatively. The court

asked if defendant had consulted with another attorney who specialized in

immigration law, to which defendant's plea counsel responded affirmatively.

After plea counsel elicited a factual basis for the plea, the court accepted

defendant's plea as knowing and voluntary. The court sentenced defendant to




                                                                          A-1000-17T3
                                        2
time served and two years of probation and dismissed the remaining counts in

the accusations on the State's motion, in accordance with the plea agreement.

      In 2015, defendant became aware that a warrant had been issued for his

deportation. On April 6, 2016, defendant filed a petition for PCR while in the

custody of Immigration and Customs Enforcement. He alleged that his plea

counsel was constitutionally ineffective because counsel misinformed defendant

about the immigration consequences of his plea. After hearing legal argument

in February 2017, Judge Verna G. Leath ordered an evidentiary hearing to

address defendant's contention that his plea counsel gave immigration advice

and represented himself to defendant as an immigration attorney.

      At the evidentiary hearing on May 9, 2017, both plea counsel and

defendant testified. Plea counsel testified that did not specifically remember the

case, but explained his normal practices in representing non-citizens at the time

defendant entered his plea, including how he would review the plea form with

each defendant.     Plea counsel testified that he would have responded

affirmatively to the plea court's inquiry if defendant had consulted an

immigration attorney "because either [he] directed [defendant] there or that there

was discussion that there was some sort of consultation." Defendant testified

that on the day of the plea hearing, plea counsel told him that an immigration


                                                                          A-1000-17T3
                                        3
stamp had been lifted and that everything was going to be okay. Defendant also

testified that he never consulted with another immigration attorney and that had

he known his plea counsel did not specialize in immigration law, he would have

hired a different attorney who specialized in both criminal and immigration law

to represent him.

      On May 19 2017, Judge Leath issued an oral decision denying defendant's

petition for PCR.   Judge Leath found that defendant had shown excusable

neglect to waive the five-year time bar on his PCR petition. See R. 3:22-

12(a)(1)(A). Addressing the merits of defendant's petition, Judge Leath found

that defendant failed to establish that his counsel was constitutionally

ineffective. Judge Leath found that the plea court conducted a sufficient voir

dire of defendant regarding his understanding of the potential immigration

consequences of the plea.     Judge Leath also found that plea counsel was

"credible when he testified how he reviewed the plea form with his client and

the merits of the plea offer." However, Judge Leath "had greater difficulty

accepting defense counsel's averment that he would not have said that defendant

consulted with an immigration attorney if he had not." Nonetheless, Judge Leath




                                                                        A-1000-17T3
                                       4
noted that the plea in this case predated Nunez-Valdez1 and Padilla2 and found

that defendant had failed to establish that his plea counsel's performance was

constitutionally deficient.

       Defendant appealed the PCR's court denial of his petition. On appeal,

defendant raises the following point for our review:

             POINT I:    THE   POST-CONVICTION    RELIEF
                         COURT ERRED IN DENYING THE
                         DEFENDANT'S PETITION FOR POST-
                         CONVICTION RELIEF FOLLOWING
                         THE EVIDENTIARY HEARING SINCE
                         THE   DEFENDANT     FAILED   TO
                         RECEIVE    ADEQUATE      LEGAL
                         REPRESENTATION    FROM    TRIAL
                         COUNSEL     REGARDING       THE
                         DEPORTATION      CONSEQUENCES
                         ARISING OUT OF HIS GUILTY PLEA,
                         RESULTING IN A GUILTY PLEA
                         WHICH HAD NOT BEEN FREELY,
                         KNOWINGLY AND VOLUNTARILY
                         ENTERED, WHILE THE FACTUAL
                         FINDINGS    MADE      BY    THE
                         POSTCONVICTION RELIEF COURT
                         UNDERLYING ITS DENIAL WERE
                         NOT SUPPORTED BY THE RECORD
                         ESTABLISHED AT THE HEARING.

       Mindful of the trial judge's opportunity to hear and see live witnesses, we



1
    State v. Nuñez-Valdéz, 200 N.J. 129 (2009).
2
    Padilla v. Kentucky, 559 U.S. 356 (2010).
                                                                          A-1000-17T3
                                        5
defer to a trial court's factual findings made after an evidentiary hearing on a

petition for PCR. State v. Nash, 212 N.J. 518, 540 (2013). "[W]e will uphold

the PCR court's findings that are supported by sufficient credible evidence in

the record." Ibid. (citing State v. Harris, 181 N.J. 391, 415 (2004)). However,

"we need not defer to a PCR court’s interpretation of the law; a legal conclusion

is reviewed de novo." Id. at 540-41 (citing Harris, 181 N.J. at 415-16).

      A PCR petitioner faces the burden to establish the grounds for relief by a

preponderance of the credible evidence. State v. Goodwin, 173 N.J. 583, 593

(2002).   Further, to establish an ineffective-assistance-of-counsel claim, a

convicted defendant must demonstrate: (1) counsel's performance was deficient,

and (2) the deficient performance actually prejudiced the accused's defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Fritz, 105

N.J. 42, 58 (1987) (adopting two-part Strickland test in New Jersey).

      In this case, defendant contends his counsel was constitutionally

ineffective because counsel failed to adequately advise him of the deportation

consequences arising out of the guilty plea. "In [Nuñez-Valdéz], our State

Supreme Court held a defendant can show ineffective assistance of counsel by

proving that his [or her] guilty plea resulted from 'inaccurate information from

counsel concerning the deportation consequences of his plea.'"          State v.


                                                                           A-1000-17T3
                                       6
Brewster, 429 N.J. Super. 387, 392 (App. Div. 2013) (quoting Nuñez-Valdéz,

200 N.J. at 143). The United States Supreme Court has clarified that counsel's

duty is not limited to avoiding "false or misleading information," as our Court

identified in Nuñez-Valdéz, 200 N.J. at 138, but also includes an affirmative

duty to inform a defendant entering a guilty plea of the relevant law pertaining

to mandatory deportation. See Padilla, 559 U.S. at 368-69.

      The United Supreme Court, however, held that the rule announced in

Padilla imposed a new obligation and announced a new rule of law. Chaidez v.

United States, 568 U.S. 342, 357-58 (2013). Consequently, the holding of

Padilla would be applied prospectively and "defendants whose convictions

became final prior to Padilla therefore cannot benefit from its holding." Id. at

358. Accordingly, pleas entered prior to Padilla are reviewed to determine

whether counsel provided affirmatively false or misleading information

regarding the plea's immigration consequences. State v. Santos, 210 N.J. 129,

143-44 (2012). "Only if defendant's attorney affirmatively gave incorrect advice

about the deportation consequences of his [or her] guilty plea might he [or she]

be entitled to set aside his [or her] conviction in accordance with the holding of

Nuñez-Valdéz." Brewster, 429 N.J. Super. at 394-95.




                                                                          A-1000-17T3
                                        7
      In this case, defendant pled guilty prior to the Supreme Court deciding

Padilla. Under the pre-Padilla standards, we agree with the PCR court that

defendant cannot meet the first Strickland prong. The PCR court found that plea

counsel was credible when he testified that he reviewed the plea form with

defendant and discussed the merits of the plea offer with defendant. Giving

deference to this credibility determination, we conclude that the PCR court's

finding that defendant failed to establish that plea counsel provided affirmative

misinformation    regarding   immigration    consequences    is   supported    by

substantial, credible evidence in the record. See In re Return of Weapons to

J.W.D., 149 N.J. 108, 117 (1997) ("Deference to a trial court's fact-findings is

especially appropriate when the evidence is largely testimonial and involves

questions of credibility."). Accordingly, defendant failed to meet the burden

under Nuñez-Valdéz to establish that his plea counsel was constitutionally

ineffective.

      Affirmed.




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                                       8
