STATE OF NEW JERSEY v. MOHAMMED SALAWU

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. MOHAMMED SALAWU, Defendant–Appellant.

DOCKET NO. A–1392–12T3

Decided: April 9, 2014

Before Judges Waugh and Nugent. Joseph E. Krakora, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the brief). Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Reema Sethi Kareer, Special Deputy Attorney General/Acting Assisting Prosecutor, on the brief).

Defendant Mohammed Salawu, a non-citizen, appeals from the order that denied both his petition for post-conviction relief (PCR) and his request for a hearing on his petition.   He contends that his guilty plea to the offenses of shoplifting and leaving the scene of a motor vehicle accident should be vacated because he was not effectively represented when he pled guilty to those charges.   Specifically, he asserts that his attorney did not give him correct advice about the deportation consequences of his plea.   The PCR court denied defendant's petition after concluding that defendant's PCR contention is refuted by his own sworn testimony at the plea hearing.   We agree and therefore affirm.

According to defendant's statements at the plea hearing, in September 2009 he drove Jennifer Petrocco to a Walgreens store in Parsippany–Troy Hills and waited while she went into the store to steal merchandise.   Defendant knew Petrocco intended to shoplift and resell the stolen merchandise.   When Petrocco ran out of the store, chased by security guards, defendant panicked, attempted to drive away before Petrocco reached his car, and ran over Petrocco.   Rather than remain at the scene, defendant sped away.   Petrocco suffered a broken arm as a result of the accident.

A Morris County grand jury indicted defendant on charges of fourth-degree assault by auto, N.J.S.A. 2C:12–1(c)(1) (count one);  third-degree leaving the scene of an accident resulting in serious bodily injury, N.J.S.A. 2C:12–1.1 (count two);  second-degree robbery, N.J.S.A. 2C:15–1(a)(1) (count three);  second-degree robbery, N.J.S.A. 2C:15–1(a)(2) (count four);  and third-degree criminal restraint, N.J.S.A. 2C:13–2 (count five).

Following the indictment, defendant agreed to accept a plea offer.   The State agreed to recommend a five-year custodial term with no period of parole ineligibility and to dismiss the remaining charges if defendant pled guilty to count two, leaving the scene of an accident resulting in serious bodily injury;  to count three, amended to shoplifting;  and to reckless driving.   Before defendant entered his plea, his attorney and the court questioned him to ensure that he was knowingly and voluntarily pleading guilty.   His attorney and the court also addressed the deportation consequences of his plea.

Defense counsel first questioned defendant about the plea form defendant had signed.   Adjacent to question 17.a, “[a]re you a citizen of the United States,” was the handwritten notation, “not a citizen.”   The typewritten word “Yes” was crossed off and the typewritten word “No” was circled.   The answer “Yes” was also circled in response to subparts b, c, and d of question 17, which asked defendant whether he understood that if he were not a United States citizen or national, “[he] may be deported by virtue of [his] plea of guilty”;  that if his guilty plea were “to a crime considered an ‘aggravated felony’ under [f]ederal law” he “[would] be subject to deportation/removal”;  and that he had the right to seek legal advice on his immigration status prior to entering his guilty plea.

Defense counsel explained that he had mistakenly written “yes” on the plea form in response to question 17.a, crossed it out, and written in that defendant was not a citizen.   Defense counsel also circled “No” in response to the question.   Defendant acknowledged the accuracy of counsel's representations and also acknowledged that he had then initialed the plea form.   After clarifying the cross-out on the plea form, counsel continued to question defendant about the deportation consequences of the plea.   The following exchange occurred:

Q. You are not a citizen of the United States then?

A. I'm not a citizen of the United States.

Q. That's correct.   And, because of this offense, there's felony offenses, you may be deported by your plea of guilty.   Are you aware of that?

A. I'm aware of that.

Q. You've had a—I don't know whether it's an aggravated felony or not.   I—I've been told that it's not.   But I don't make any representations.   I'm not an immigration lawyer.   But actually you have had—I did arrange for a telephone conversation with you with an immigration counsel.   Do you recall that?

A. I recall.

Q. And he discussed with you at length the possibilities and—of deportation, and many aspects of your particular case, and how—because there is a detainer against you right at this moment, correct, by Immigration?

A. That's correct.

Q. So, you're satisfied with the advice that he's given and that you are aware at least of what possibilities, and you still with [sic] to enter a plea of guilty?

A. I am aware of that.

Q. Okay.

THE COURT:  And you wish to enter a plea of guilty?

[Defendant]:  Yes, sir.

When counsel finished questioning defendant about the plea, he asked if defendant were satisfied with his services.   Defendant replied, “I'm very satisfied.”

After defendant provided an adequate factual basis for his plea, the court questioned him further about deportation.

BY THE COURT:

Q. First of all, I don't mean to highlight the immigration issue, but having presided over other proceedings prior to today, Mr. Salawu, I know that the immigration status played a large role in your determination as to how to resolve this case.   Would that be fair to say?

A. Yes, sir.

Q. Alright. We know you're not a citizen of the United States and we know that you have acknowledged that you understand, that since you're not a citizen of the United States, that your plea of guilty may result in your being deported.   You've acknowledged that, correct?

A. Yes, sir.

Q. Okay. And you have consulted with an immigration attorney by telephone as arranged by [defense counsel].   And you're satisfied with the advice that that [a]ttorney provided to you?

A. I'm satisfied, Your Honor.

Q. Alright. Do you understand that this Court has no jurisdiction or control over any decisions that an Immigration Court may make, including a decision whether to deport you.   Do you understand that?

A. I understand, Your Honor.

Q. Alright. And, plainly speaking, if I were to write a letter on your behalf saying please don't deport Mr. Salawu, they would ignore it.   Do you understand that?

A. I understand that, sir.

Q. Okay. Now, do you have any questions about the impact of your guilty plea on your immigration status?

A. Not now.

Q. As noted in the plea form, if this crime, leaving the scene of an accident with bodily injury, is considered an aggravated felony under our law—federal law, that [sic] it's very probable that they would seek to deport you?   Do you understand that?

A. Could I ask you a question?

Q. Yes.

[Defendant]:  It is considered [an] aggravated felony under the federal law?

THE COURT:  It could be considered an aggravated felony.   Normally, they go by the length of time of imprisonment or the—the degree of the crime.   But there's no way I can tell you one way or the other, Mr. Salawu, that it will happen or won't happen.   I can only tell you that it might be considered to be an aggravated felony.   And, if it is, it is highly probable that you would be deported.   In other words, you might have to take this fight to the Immigration Court.   But I don't want to mislead you in any way and think that I have any control over that.   In other words, even if I said, I don't think this is an aggravated felony;  again, they wouldn't pay any attention to me.   So, you're taking your chances to be perfectly blunt.

BY THE COURT:

Q. You're—and do you understand that?

A. I understand that, sir.

Q. Alright. So, you should enter this plea today with a full knowledge and understanding that you very well could be deported.

A. I understand that, Your Honor.

Q. Alright. And knowing that that could very well happen, do you still wish me to accept your plea?

A. Yes, Your Honor.

The court accepted the plea and subsequently sentenced defendant to five years on count two.   On count three as amended, the court imposed a $100 fine.   The court also imposed a $200 fine on the reckless driving summons, and imposed mandatory assessments on all charges.

Defendant did not file a direct appeal.   Within the year following his sentence, he filed his PCR petition.   In his petition he alleged, among other things, that his attorney misled him “into believing that there would be no immigration consequences from his taking a guilty plea.”   Defendant further alleged that “[h]e was not told about mandatory deportation at any time before on this case.”

Defendant filed an amended PCR petition after the court appointed counsel to assist him.   In a supplemental certification, defendant averred that “[t]rial counsel gave [him] misinformation and ill-advise [sic] about the deportation consequences of [his] plea.”   Defendant reiterated that he “was told that what [he] was pleading guilty to would likely avoid deportation.”   He claimed his attorney told him “several times that he did not know what the consequences would be because he was not an immigration attorney.   However, he said numerous times that he didn't think that this was the type of offense that would be deportable.”

The court denied defendant's petition.   Citing the discussions that both defense counsel and the court had with defendant during the plea hearing, the court concluded that defendant was aware of the deportation consequences of his plea, and that defendant had not been misled about those consequences.

In this appeal, defendant raises the following argument:

THE MOTION COURT ERRED IN DENYING THE DEFENDANT AN EVIDENTIARY HEARING TO ENABLE HIM TO ESTABLISH HIS CLAIM OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS THE DEFENDANT HAS AT LEAST ESTABLISHED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST. IN THE ALTERNATIVE, THE DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO COUNSEL AND HIS CONVICTIONS SHOULD BE VACATED.

To prevail on a claim that an attorney did not represent him or her effectively, a defendant must establish both that counsel's performance was deficient and that counsel's deficient performance actually prejudiced the defense.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984);  State v. Fritz, 105 N.J. 42, 58 (1987).   The defective performance is prejudicial if “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.

To set aside a guilty plea based on ineffective assistance of counsel, a defendant must demonstrate under the first prong of Strickland that “counsel's assistance was not ‘within the range of competence demanded of attorneys in criminal cases.’ ”  State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 1608, 36 L. Ed.2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed.2d 873 (1996).   Under the second prong of Strickland, defendant must establish “ ‘that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.’ ”  Ibid. (alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L. Ed.2d 203, 210 (1985)).   Here, defendant has failed to make so much as a prima facie case under Strickland.

An attorney who counsels a client concerning a plea “must inform [the] client whether [the] plea carries a risk of deportation.”  Padilla v. Kentucky, 559 U.S. 356, 374, 130 S.Ct. 1473, 1486, 176 L. Ed.2d 284, 299 (2010).   The record in the case before us establishes not only that counsel provided such advice to defendant, but that counsel also arranged to have defendant discuss the consequences of the plea with an immigration attorney.   Moreover, during the plea colloquy, the court informed defendant of the probability that he would be deported if he pled guilty and it was determined that his crime was considered an aggravated felony under federal law.

Defendant's filing a certification that contradicts not only the advice of defense counsel and the court, but also his own sworn statements in open court, is inadequate to establish a prima facie case of ineffective assistance of counsel.   When a defendant states under oath at a plea hearing that his decision is voluntary, his representation is not easily overcome if he later attempts to withdraw his plea.  State v. Simon, 161 N.J. 416, 444 (1999).   That is so because “ ‘[s]olemn declarations in open court carry a strong presumption of verity.’ ”  Ibid. (alteration in original) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L. Ed.2d 136, 147 (1977)).

Here, defendant has not overcome the presumed verity of his sworn statement that he was entering his plea “with a full knowledge and understanding that [he] very well could be deported.”   Defendant has not plausibly addressed the colloquy that included his attorney, the court, and himself during the plea hearing, and though he has acknowledged speaking with an immigration attorney, he has not disclosed what advice the immigration attorney gave to him.   Under those circumstances, the PCR court properly denied both his petition and his request for a hearing.   See State v. Preciose, 129 N.J. 451, 462 (1992).

Defendant also appears to argue that because it was so clear he would be deported if he pled guilty to count two, counsel was required to definitively tell him that his offense was mandatorily deportable.   See Padilla, supra, 559 U.S. at 369, 130 S.Ct. at 1483, 176 L. Ed.2d at 296;  State v. Gaitan, 209 N.J. 339, 380 (2012) (“Prospectively from the time when the decision in Padilla was announced, 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.”).   We disagree.

In a single conclusory sentence, without any explanation or analysis, defendant states that leaving the scene of an accident resulting in serious bodily injury, as defined in N.J.S.A. 2C:12–1.1, “qualifies as an aggravated felony” under federal law.

Under 8 U.S.C.A. § 1227(a)(2)(A)(iii), a non-citizen is deportable if he or she has been convicted of an aggravated felony at any time after admission.   An aggravated felony, under 8 U.S.C.A. § 1101(a)(43)(F), can be a “crime of violence,” as defined in 18 U.S.C.A. § 16, for which the term of imprisonment is at least one year.   A crime of violence is “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person ․ of another,” or “(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person ․ may be used in the course of committing the offense.”   18 U.S.C.A. § 16.

In determining whether a defendant was convicted of a crime of violence, federal courts employ the “categorical approach.”  Rojas v. Att'y Gen., 728 F.3d 203, 214–15 (3d Cir.2013) (en banc);  Oyebanji v. Gonzales, 418 F.3d 260, 262 (3d Cir.2005) (Alito, J.);  Francis v. Reno, 269 F.3d 162, 171 (3d Cir.2001).   The categorical approach “requires a court to determine only whether a conviction under the state statute ‘necessarily’ contained all of the elements of the federal baseline offense ․ by comparing the elements of the state and federal crimes.”  Rojas, supra, 728 F.3d at 214 (citing Taylor v. United States, 495 U.S. 575, 601–02, 110 S.Ct. 2143, 2159–60, 109 L. Ed.2d 607, 629 (1990));  see also Moncrieffe v. Holder, _ U.S.,, 133 S.Ct. 1678, 1684–85, 185 L. Ed.2d 727, 738–39 (2013) (explaining the categorical approach).   In applying the categorical approach, a court “may not delve into the particular facts of a conviction to ascertain if there is a proper fit.”   Rojas, supra, 728 F.3dn at 215.

Determining whether third-degree leaving the scene of an accident resulting in bodily injury is a crime of violence within the meaning of 18 U.S.C.A. § 16 requires a categorical approach analysis.   Additionally, the Supreme Court has stated that in interpreting 18 U.S.C.A. § 16, “we cannot forget that we ultimately are determining the meaning of the term ‘crime of violence.’ ”   Leocal v. Ashcroft, 543 U.S. 1, 11, 125 S.Ct. 377, 383, 160 L. Ed.2d 271, 281 (2004).  “The ordinary meaning of this term, combined with [8 U.S.C.A. § 16's] emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes․”  Ibid.

The crime of leaving the scene of an accident resulting in serious bodily injury is therefore not one that has clear and explicit deportation consequences.   Rather, it triggers a situation where “the law is not succinct and straightforward,” and it requires defense counsel to “do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.”  Padilla, supra, 559 U.S. at 369, 130 S.Ct. at 1483, 176 L. Ed.2d at 296.   That is precisely what defendant's plea counsel did.

Under such circumstances, we cannot agree with defendant that the immigration consequences of pleading guilty to a charge brought under N.J.S.A. 2C:12–1.1 were so clear that defense counsel was required to tell defendant that his conviction would result in mandatory deportation.   Defendant was informed by both counsel and the court of the risk of deportation.   More significantly, he spoke with an immigration attorney, but has not disclosed what he was told.   Defendant has not made out a prima facie case under Strickland.

Affirmed.

PER CURIAM

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