STATE OF NEW JERSEY VS. JOHN D. GABRIELE(12-03-0521, OCEAN COUNTY AND STATEWIDE)
A-3129-15T4
| N.J. Super. Ct. App. Div. | Nov 6, 2017Background
- In 2003 defendant (a Polish immigrant) drove drunk, struck another vehicle, fled the scene, and was later found with a BAC of .224. He was charged with assault by auto.
- Through counsel defendant pleaded guilty on October 4, 2004; the plea form and the court used a Polish interpreter and advised defendant he "may" be deported.
- Sentenced January 6, 2005 to three years probation and 270 days in county jail consistent with the plea agreement.
- Defendant did not appeal; in November 2013 he filed a post-conviction relief (PCR) petition claiming counsel was ineffective for failing to adequately advise him about deportation consequences of his plea.
- The PCR court dismissed the petition without an evidentiary hearing; defendant appealed. The Appellate Division affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plea counsel was ineffective for failing to advise about deportation | State: pre-Padilla law controls; no affirmative duty then; defendant acknowledged possibility of deportation | Kolodziej: counsel failed to sufficiently advise on likelihood of deportation, rendering plea involuntary/ineffective | Denied — pre-Padilla rule applies; only affirmative misadvice (not silence) can support relief for pre-Padilla pleas; defendant was warned he "may" be deported and had interpreter |
| Whether Padilla error applies retroactively | State: Padilla not retroactive; Chaidez bars retroactive application | Kolodziej: seeks benefit of Padilla despite timing | Denied — Chaidez and New Jersey precedent treat Padilla as prospective only |
| Whether defendant merits an evidentiary hearing | State: no prima facie showing of ineffective assistance | Kolodziej: claims factual dispute about advice given would justify hearing | Denied — PCR judge properly found no prima facie case under controlling law |
| Constitutional challenges to immigration consequences (double jeopardy/criminalization) | State: immigration consequences are collateral and governed by Padilla framework | Kolodziej: deportation here is punitive/double jeopardy or unconstitutional criminalization of status | Denied — arguments without merit; case disposed under ineffective-assistance/Padilla precedent |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise of deportation risk, but rule prospectivity issues arise)
- Chaidez v. United States, 568 U.S. 342 (2013) (Padilla does not apply retroactively)
- State v. Gaitan, 209 N.J. 339 (2012) (Padilla treated prospectively in New Jersey)
- State v. Santos, 210 N.J. 129 (2012) (pre-Padilla ineffective-assistance claims require affirmative misadvice)
- State v. Nuñez-Valdéz, 200 N.J. 129 (2009) (pre-Padilla relief where counsel affirmatively misled client about immigration consequences)
- State v. Preciose, 129 N.J. 451 (1992) (prima facie standard for granting evidentiary hearings on PCR petitions)