STATE OF NEW JERSEY v. DEBORAH GRAHAM (2011)

Defendant appeals from the denial of post-conviction relief (PCR) in connection with her conviction on a plea to third-degree child endangerment, contrary to N.J.S.A. 2C:24-4a.   She entered the plea in exchange for the State's promise to dismiss a second-degree change-endangerment charge, not oppose her application to be sentenced one degree lower than the second-degree charge to which she pled, and recommend probation.   This conviction was based on defendant's failure to supervise her cousin, I.C., who was nine years old, and her brother, J.G., who was four years old at the time of the incident.   We now affirm the denial of PCR.

On August 26, 2003, defendant had been left at home with her cousin and brother after her aunt, Inez Cunningham, left the apartment, allegedly informing defendant that she would be back shortly.   When Cunningham had not returned in time for defendant to go to work, she left the two children unattended, claiming that she expected Cunningham to return to the apartment and continue supervising them.

Before Cunningham returned, I.C. took the keys to the family car and took J.G. for a ride because she was bored.   While operating the car, I.C. struck four parked cars and knocked down an elderly pedestrian, causing $35,228.02 in damages.   The police were called to the scene resulting in the charges filed against defendant and her aunt.   Defendant is from Jamaica and is a permanent resident who now faces deportation.

At the time defendant entered into the plea agreement, she answered yes to Question No. 17 on the plea form, “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?”   The plea agreement required defendant to pay restitution in the amount of the damages.   The prosecutor recommended a period of probation with counseling, if necessary.

During the examination of defendant at the plea hearing on September 20, 2004, neither her attorney, nor the prosecutor, nor the judge examined her with respect to the possibility that she could be deported based on her conviction for third-degree child endangerment.   However, defendant expressed her concerns about deportation to the probation officer who interviewed her on September 30, 2004, as part of his pre-sentence investigation (PSI).   The PSI report indicated that defendant had attempted suicide once between the date of the incident and her PSI interview and also had a seizure.   She was twenty-two years old at the time of the offense.   Her entire immediate family, including her four siblings, all lived in the United States.   Defendant was sentenced to a five-year term of probation on October 29, 2004, which she completed without incident.

On January 14, 2009, the Department of Homeland Security ordered defendant to appear at a deportation hearing based on her conviction for a crime involving moral turpitude.   This notice led defendant to file a verified petition for PCR. Therein defendant alleged that her guilty plea was not made voluntarily, knowingly, and intelligently with an understanding of the charge and the consequences of her plea.   Specifically, she asserted the plea colloquy indicated that the court did not inform her of the possibility of deportation.   She alleged that she had advised her attorney that she was a green-card holder and that her attorney did not advise her that she could be deported from the United States.   Had he done so, she would have gone to trial.   Specifically, she alleged that:

4.  On several occasions, I informed my attorney that I was a [Lawful] Permanent Resident and that I was concerned about how the plea would affect my immigration status.

5. My attorney replied by saying that the immigration matter was separate and that the focus was on making sure I got a favorable outcome in the criminal case and that I should hire a separate attorney for any immigration issues that may arise.

6. At no time during discussion of the plea agreement or at the sentencing did my attorney indicate to me that acceptance of the plea would make me deportable.

7. Had I known that pleading guilty to [e]ndangering the [w]elfare of a [c]hild in the [t]hird degree made me deportable, I would have never entered the plea agreement and instead would have insisted on going to trial.

Defendant's mother, Rose Graham, also signed an affidavit in support of her daughter's request for PCR. Her mother is a naturalized citizen, and defendant is her oldest daughter.   She helped her daughter retain counsel and pay his attorney's fee.   She advised defendant's attorney that defendant had recently arrived from Jamaica as a lawful permanent resident and that the mother was concerned about how the case might affect defendant's immigration status.   She contended that counsel mentioned that the State was going to offer defendant “a plea and that the plea would not have an effect on her immigration status.”   She fur-ther certified that counsel during the plea did not discuss the impact of the plea agreement on defendant's immigration status.

The PCR judge quite properly ordered an evidentiary hearing, which took place on November 2, 2009.   Three witnesses testified at the hearing:  defendant, her mother, and the attorney who advised her with respect to the plea.

At the hearing, defendant testified that she was concerned about how a conviction would affect her ability to become a citizen later on and how it would affect her immigration status.   She claimed that her attorney assured her that “[t]o the best of his knowledge, it would not affect those areas.”   She could not recall whether her attorney reviewed Question No. 17 with her in detail.   He advised her that she was being offered the best deal she could get “and not to worry about anything else.”   She did not know that a plea to third-degree child endangerment was a deportable offense.   Had she known this, she would have insisted on going to trial.   Based on what her attorney told her, she did not feel that she needed to hire an immigration attorney, even though he insisted she do so.

After reading portions of the PSI report, she recalled telling the investigator that she was concerned about her immigration status.   On recross-examination, she admitted that she knew the State had evidence sufficient to prove her guilty, she faced prison time, and could possibly still have been deported.   She admitted that her primary concern was to avoid incarceration.   “[T]he only thing I was focusing on if it went to court would be the being incarcerated portion․  [T]he biggest part of it was you could go to jail.”   Defendant's mother testified briefly and corroborated defendant's version of events.

Defendant's attorney testified that the first time he met defendant was three or four months before the plea, and one of the issues they discussed was defendant's status as a permanent resident.   He advised her that if there “was to be any finding of guilt in the matter, ․ there could be potential ramifications on her ․ immigration status.”   It might also affect her ability to become a United States citizen.   Further,

I advised her that since ․ I do not consider myself well versed in immigration law, that she consult with an attorney--if she did not have one already, that she consult with an attorney who would be more of an immigration attorney that could give her advice as to what may happen.

THE COURT:  What did she tell you she was going to do?

THE WITNESS:  I believe she said that she would seek an immigration attorney, or an attorney who was more familiar with those immigration matters to consult with.

After receiving discovery in the case, counsel had discussed potential defenses to the charge but opined that the defenses would not be persuasive.   He told defendant that if she was found guilty of both second-degree charges, she would face the prospect of five to ten years in prison on each and that they could be run consecutively.   The prosecutor would not consider pre-trial intervention, and counsel did not seek relief from the court in that respect.

Late in the summer of 2004, defendant indicated that she wanted to accept the plea offer, and she and counsel again discussed the issue of her immigration status.   Counsel told her that if she was concerned about her immigration status, she should speak to someone with expertise in immigration law to obtain legal advice respecting the impact of the guilty plea.

Counsel testified that, on the day of the plea, he went over each and every question in the plea form, which was filled out in his handwriting.   He reviewed the questions with defendant and then circled her answer.   In particular, he reviewed Question No. 17 and explained that question to her.   He repeated his earlier discussions and asked if she understood that she could be deported as a result of entering a plea.   She told him that she did understand that.   Counsel denied ever telling defendant she did not need to worry about the impact of the plea on her immigration status, and he never told her that she would not be deported.

On cross-examination, counsel stated that he was not aware of the immigration laws that were in effect in 2004;  he was not an immigration attorney.   He so advised defendant, telling her that immigration law was not his specialty.   But he also told her that pleading guilty to the third-degree offense “could put her at risk in terms of her immigration status.”   He was not aware that permanent residents who were convicted of a crime involving moral turpitude were automatically deportable.   He did understand that third-degree endangering the welfare of a child was a crime of moral turpitude.   Counsel recalled asking defendant before the plea whether she had consulted with an immigration attorney, but he could not recall her answer.

Counsel admitted that the family had raised some concerns about the impact of a conviction.   He acknowledged that defendant or members of her family had raised concerns with respect to Cunningham's profession as a nurse and what a conviction would do to her ability to continue her employment.   They felt that defendant taking blame for the case was better for the family.   He also acknowledged that the PSI report indicated that plaintiff did express concerns about deportation to the investigator who prepared the PSI report.

On questioning from the court, counsel testified that if defendant had gone to trial and been convicted, she would have gone to state prison and still would have been deported.   Defendant faced deportation whether she pled guilty or went to trial, unless she was acquitted of the charges.

The judge reviewed the testimony of all three witnesses and rejected defendant's testimony that her attorney told her that she did not need to worry about deportation as it flew in the face of her answer to Question No. 17 on the plea form that she signed.   He found that had defendant gone to trial and been convicted, she would still have faced deportation.   Based on the evidence respecting the crime, he found that counsel was correct to advise her to accept the plea “because this [was] not a case to try.”

The judge quoted portions of the plea allocution where defendant testified that she read and signed the plea form, her attorney explained it to her, he reviewed all of the questions, and she understood it.   She also said at the time of her plea that she had enough time to go over the plea with her attorney and had no questions for him.   The judge found this testimony to be inconsistent with defendant's claim that she did not recall having the questions explained to her.   He rejected defendant's claim that she was not apprised of the impact a conviction would have on her immigration status as not credible in the face of the plea allocution and the concern she expressed about it when she was interviewed as part of the PSI at the time when she could still have retracted her plea.

Finally, the judge concluded as follows:

From the standpoint of pure ineffective assistance of counsel, there's-- there's nothing in this case that indicates to me that this defendant was advised by this attorney in any manner that was anything but effective under the guidelines and the circumstances of what a reasonable, prudent attorney would have done at the time.

․

My--my decision is based on the fact that what was done in this case was done above board.   The transcript, the plea--LR-27 form, the presentence report all indicate[ ] clearly that [defendant] had a pure understanding, college graduate that she was, of what was going on in this case.   And for her to say that she didn't know and thought that the attorney had smoothed everything over and yet tell the presentence report person she was concerned is self-serving.

I don't find ineffective assistance of counsel, and there's no grounds for me to [vacate] this guilty plea at this particular time either based on the fact that she certainly knew at the time, in my opinion, when she took this plea that she had a problem from a standpoint of her citizenship non-status, and no matter what she did subject [sic] other than to an acquittal, there was a real possibility of being deported.

I find credible the testimony of the attorney to that extent.   I find not credible the fact that [defendant] didn't understand that.

I think this case, like some of these cases unfortunately proceeded until more or less a circumstance occurred when immigration came out of the woodwork and said well, you're being deported because of what you pled to.

In this particular case there's no indication here, in my opinion, that under Strickland that the attorney function[ed as] anything other than a reasonably prudent attorney.   And there's no grounds in this-- in this particular case, in my opinion, for withdrawal of the plea.   Therefore, the post-conviction relief application is denied.

Defendant raises the following issues for our consideration:

POINT I - MS. GRAHAM'S POST-CONVICTION RELIEF PETITION SHOULD BE GRANTED BECAUSE MS. GRAHAM WAS MISADVICED [SIC] BY HER ATTORNEY ABOUT THE IMMIGRATION CONSEQUENCES OF HER GUILTY PLEA.

A. STANDARDS OF INEFFECTIVE ASSISTANCE ARE REVIEWED UNDER STRICKLAND V. WASHINGTON'S TWO-PART TEST.

B. COUNSEL PROVIDED GRAHAM IN-CORRECT LEGAL ADVICE ON THE ISSUE OF DEPORTATION AND HAD SHE BEEN PROPERLY ADVISED SHE WOULD NOT HAVE PLED GUILTY AND INSTEAD INSISTED ON GOING TO TRIAL.

C. CONSIDERING THE AUTOMATIC DE-PORTATION THAT AWAITS MANY NON-CITIZENS AS A RESULT OF THEIR PLEAS AN [ ]EFFECTIVE COUNSEL DEFENDING A LAWFUL PERMANENT RESIDENT SHOULD HAVE BEEN AWARE OF THE IMMIGRATION LAWS IN EFFECT AT THE TIME DEFENDANT-APPELLANT ENTERED HER PLEA IN 2004.

D. MS. GRAHAM WAS EXTREMELY CON-CERNED THAT HER IMMIGRATION STATUS NOT BE AFFECTED BY HER GUILTY PLEA AND BEING ACCURATELY INFORMED ABOUT THE IMMIGRATION CONSEQUENCES OF HER PLEA WAS MATERIAL TO HER DECISION TO PLEADING KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY.

We review the legal conclusions of a PCR judge de novo.  State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir.2004);  Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir.1993)), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L. Ed.2d 898 (2005).   The same scope of review applies to mixed questions of law and fact.  Id. at 420 (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir.1999)).   We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir.1991), cert. denied, 505 U.S. 1229, 112 S.Ct. 3055, 120 L. Ed.2d 921 (1992)), and accord deference to credibility determinations, id. at 420-21 (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir.1997), cert. denied, 522 U.S. 1119, 118 S.Ct. 1059, 140 L. Ed.2d 121 (1998)).

In Strickland supra, 466 U.S. at 685-86, 104 S.Ct. at 2063-64, 80 L. Ed.2d at 692, the United States Supreme Court explained the constitutional guarantee of effective assistance of counsel for every criminal defendant embodied in the Sixth Amendment.   A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel.  Id. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693.   To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors.  Ibid. Second, the defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial.  Ibid. Our Supreme Court has adopted the standards embodied in Strickland.  State v. Fritz, 105 N.J. 42, 57-58 (1987).

“ ‘Judicial scrutiny of counsel's performance must be highly deferential,’ and must avoid viewing the performance under the ‘distorting effects of hindsight.’ ”  State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L. Ed.2d at 694).   Moreover, there is a strong presumption that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”  Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L. Ed.2d at 695.   Adequate assistance of counsel should be measured by a “reasonable competence” standard.  Fritz, supra, 105 N.J. at 60-61.   That standard does not require “the best of attorneys,” but rather that attorneys not be “so ineffective as to make the idea of a fair trial meaningless.”   State v. Jack, 144 N.J. 240, 248 (1996) (citation and internal quotation marks omitted).

Bound as we are by the PCR judge's credibility determinations, and concluding that his fact-findings have substantial support in the record, we consider whether he misapplied the law to the facts.   Defendant asserts that her counsel provided ineffective assistance to her at the time of her plea based on Padilla v. Kentucky, _ U.S. _, 130 S.Ct. 1473, 176 L. Ed.2d 284 (2010);  State v. Nuñez-Valdéz, 200 N.J. 129 (2009);  State v. Vieira, 334 N.J.Super. 681, 688 (App.Div.2000);  and State v. Nichols, 71 N.J. 358 (1976).   Obviously, Padilla and Nuñez-Valdéz had not been decided when defendant pled guilty in 2004.

In Padilla, supra, _ U.S. at _, 130 S.Ct. at 1478, 176 L. Ed.2d at 289-90, the defendant asserted that, at the time of his plea, his attorney “told him that he ‘did not have to worry about immigration status since he had been in the country’ ” for forty years as a lawful permanent resident.   The Kentucky Supreme Court “held that the Sixth Amendment's guarantee of effective assistance of counsel does not protect a criminal defendant from erroneous advice about deportation because it is merely a ‘collateral’ consequence of his conviction.”  Id. at _, 130 S.Ct. at 1478, 176 L. Ed.2d at 290 (citation omitted).   The United States Supreme Court disagreed.  Ibid.

The Court began with the following proposition:

The landscape of federal immigration law has changed dramatically over the last 90 years.   While once there was only a narrow class of deportable offenses and judges wielded broad discretionary authority to prevent deportation, immigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation.   The “drastic measure” of deportation or removal is now virtually inevitable for a vast number of noncitizens convicted of crimes.

[Ibid. (citation omitted).]

In reviewing the development of immigration law since the founding of our country, id. at _, 130 S.Ct. at 1478-80, 176 L. Ed.2d at 290-93, the Court observed,

Under contemporary law, if a noncitizen has committed a removable offense after the 1996 effective date of these amendments [to the 1952 Immigration and Nationality Act], his removal is practically inevitable but for the possible exercise of limited remnants of equitable discretion vested in the Attorney General to cancel removal for noncitizens convicted of particular classes of offenses.

[Id. at _, 130 S.Ct. at 1480, 176 L. Ed.2d at 292 (footnote and citation omitted).]

The consequence of these changes was to “dramatically raise[ ] the stakes of a noncitizen's criminal conviction.”  Ibid. This led the Court to conclude that “as a matter of federal law, deportation is an integral part--indeed, sometimes the most important part--of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”  Id. at _, 130 S.Ct. at 1480, 176 L. Ed.2d at 293 (footnote omitted).   The Court held that because “advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel[,] Strickland applies to Padilla's claim.”  Id. at _, 130 S.Ct. at 1482, 176 L. Ed.2d at 294.

After discussing Strickland, the Supreme Court turned to the first prong and determined, based on professional standards from the mid-1990s to the present, that “[t]he weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation.”   Ibid. It further found that “the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence for Padilla's conviction.”  Id. at _, 130 S.Ct. at 1483, 176 L. Ed.2d at 295 (citing 8 U.S.C.A. § 1227(a)(2)(B)(i)).   As a consequence, the Court concluded, “This is not a hard case in which to find deficiency:  The consequences of Padilla's plea could easily be determined from reading the removal statute, his deportation was presumptively mandatory, and his counsel's advice was incorrect.”  Ibid. The Court acknowledged:

Immigration law can be complex, and it is a legal specialty of its own.   Some members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it.   There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain.   The duty of the private practitioner in such cases is more limited.   When the law is not succinct and straightforward ․, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.   But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.

[Id. at _, 130 S.Ct. at 1483, 176 L. Ed.2d at 295-96 (footnote omitted).]

The Court did not consider the prejudice prong of Strickland, leaving that issue for determination by the Kentucky courts.   Id. at _, 130 S.Ct. at 1483-84, 176 L. Ed.2d at 296.

The Court also considered “the importance of protecting the finality of convictions obtained through guilty pleas.”  Id. at _, 130 S.Ct. at 1484, 176 L. Ed.2d at 297.   As in Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L. Ed.2d 203, 209-10 (1985), the Court rejected the “floodgates” concern expressed by the Solicitor General and others.  Id. at _, 130 S.Ct. at 1484-85, 176 L. Ed.2d at 297.

A flood did not follow in that decision's wake.   Surmounting Strickland 's high bar is never an easy task.   See, e.g., 466 U.S. at 689, 104 S.Ct. 2052, 80 L. Ed.2d 674 (“Judicial scrutiny of counsel's performance must be highly deferential”);  id. at 693, 104 S.Ct. 2052, 80 L. Ed.2d 674 (observing that “[a]ttorney errors ․ are as likely to be utterly harmless in a particular case as they are to be prejudicial”).   Moreover, to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.   See Roe v. Flores-Ortega, 528 U.S. 470, 480, 486, 120 S.Ct. 1029, 145 L. Ed.2d 985 (2000).   There is no reason to doubt that lower courts--now quite experienced with applying Strickland --can effectively and efficiently use its framework to separate specious claims from those with substantial merit.

It seems unlikely that our decision today will have a significant effect on those convictions already obtained as the result of plea bargains.   For at least the past 15 years, professional norms have generally imposed an obligation on counsel to provide advice on the deportation consequences of a client's plea.   See, supra, at 11-13.   We should, therefore, presume that counsel satisfied their obligation to render competent advice at the time their clients considered pleading guilty.  Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L. Ed.2d 674.

[Id. at _, 130 S.Ct. at 1485, 176 L. Ed.2d at 297-98.]

In Nuñez-Valdéz, supra, 200 N.J. at 139, our Supreme Court decided the same issue under our state constitution.   It rejected the distinction between penal and collateral consequences for purposes of determining whether there had been a Strickland violation.  Id. at 139-40.   The PCR judge there found the defendant's claims that the immigration consequences of the plea were important to him and that his attorney told him there would be no such consequences to be credible.  Id. at 141.

The Court concluded that counsel's assurance that the defendant's guilty plea to fourth-degree criminal sexual contact would not affect his immigration status constituted ineffective assistance of counsel.  Id. at 131, 142.   As to the prejudice prong, the Court affirmed the PCR judge's finding that the defendant was prejudiced in that he would not have pled guilty and would have gone to trial had he known of the deportation consequences of his plea.  Id. at 143.

Assuming without deciding that the rule in Padilla applies on an application for PCR and that the consequence of deportation was sufficiently certain to require defense counsel to do more than recommend consultation with an immigration attorney, we conclude that defendant cannot demonstrate prejudice under the second prong of Strickland.   Defendant has not shown that “a decision to reject the plea bargain would have been rational under the circumstances” as required by Padilla, supra, _ U.S. at _, 130 S.Ct. at 1485, 176 L. Ed.2d at 297.   Further, she has not shown that she would have opted to go to trial if she knew that she was going to be deported.  Nuñez-Valdéz, supra, 200 N.J. at a43.   As she said, “[T]he only thing I was focusing on if it went to court would be the being incarcerated portion․  [T]he biggest part of it was you could go to jail.”   It simply would not have been rational to reject such a favorable plea agreement and risk up to twenty years in prison when she faced such strong evidence of guilt.   As a consequence, we affirm the denial of PCR.

Affirmed.

PER CURIAM