STATE OF NEW JERSEY v. HERBERT POWELL (2013)

Defendant Herbert Powell appeals the Law Division's June 15, 2011 order denying his petition for post-conviction relief (PCR).  We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In July 1998, Powell was indicted for fourth-degree forgery, contrary to N.J.S.A. 2C:21–1(a)(3) (count one);  third-degree fraudulent use of a credit card, contrary to N.J.S.A. 2C:21–6(h) (count two);  and third-degree theft by deception, contrary to N.J.S.A. 2C:20–4 (count three).   He entered a guilty plea to the third-degree theft by deception in April 1999, and was subsequently sentenced to a five-year term of probation.

In October 2003, Powell was charged with violation of probation.   Following a hearing in November 2003, he was found guilty of the probation violation and sentenced to incarceration for five years.   He appealed the sentence and we remanded for articulation of the reasons for imposition of an extended term, pursuant to State v. Natale, 184 N.J. 458, 488 (2005).

Powell filed his PCR petition in July 2010, alleging that he received constitutionally deficient assistance of counsel at the time of the plea because he was not informed of the immigration consequences of the plea.   He also sought to withdraw his guilty plea and raised additional issues concerning trial counsel.

Shortly thereafter, Powell was served with a notice of deportation.   His eligibility for deportation was premised on two convictions, the one at issue in this appeal and a 1996 conviction for second-degree robbery in the State of New York. Although a lawful permanent resident of the United States for over forty years, Powell was born in Jamaica and is not a citizen of the United States.

The PCR judge heard argument on the petition on June 15, 2011, and placed an oral decision denying relief on the record.   The implementing order was entered the same day.   This appeal followed.

II.

Powell raises the following issues on appeal:

POINT I:  THE ORDER DENYING POST–CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S GUILTY PLEA VACATED BECAUSE THE FAILURE TO INFORM DEFENDANT OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA, IN CONJUNCTION WITH THE CHANGE IN IMMIGRATION LAW AND POLICY ON THE FEDERAL LEVEL, VIOLATED DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS BECAUSE OF ITS EX POST FACTO EFFECTS.

POINT II:  THE ORDER DENYING POST–CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S GUILTY PLEA VACATED BECAUSE TRIAL COUNSEL'S FAILURE TO ADVISE DEFENDANT OF THE IMMIGRATION CONSEQUENCES OF HIS PLEA DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.

POINT III:  THE COURT MISAPPLIED ITS DISCRETION IN DENYING POST–CONVICTION RELIEF WITHOUT CONDUCTING A FULL EVIDENTIARY HEARING.

POINT IV:  DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST–CONVICTION RELIEF.

(A) DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS PLEA OF GUILTY.

(B) TRIAL COUNSEL'S FAILURE TO CONDUCT AN ADEQUATE PRETRIAL INVESTIGATION;  HIS FAILURE TO SEEK DISCOVERY;  HIS FAILURE TO INTERVIEW WITNESSES;  AND HIS FAILURE TO MEET WITH DEFENDANT WAS INEFFECTIVE ASSISTANCE OF COUNSEL, AND CLAIMS SHOULD NOT HAVE BEEN PROCEDURALLY BARRED.

“Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.”  State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted).   Under Rule 3:22–2(a), a criminal defendant is entitled to PCR relief if there was a “[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey.”  “A petitioner must establish the right to such relief by a preponderance of the credible evidence.”  Preciose, supra, 129 N.J. at 459 (citations omitted).  “To sustain that burden, specific facts” that “provide the court with an adequate basis on which to rest its decision” must be articulated.  State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review.   R. 3:22–4(a)(2);  Preciose, supra, 129 N.J. at 460.   In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L. Ed.2d 674, 698 (1984) and United States v. Cronic, 466 U.S. 648, 658–60, 104 S.Ct. 2039, 2046–47, 80 L. Ed.2d 657, 667–68 (1984).  Preciose, supra, 129 N.J. at 463;  State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of the Strickland test, a “defendant must show that [defense] counsel's performance was deficient.”  Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693.   Under the second prong, a defendant must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  Id. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance․”  Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L. Ed.2d at 694) (internal quotation marks omitted).   Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate “how specific errors of counsel undermined the reliability of the finding of guilt.”  Cronic, supra, 466 U.S. at 659 n.26, 104 S.Ct. at 2047, 80 L. Ed.2d at 668;  see Roe v. Flores–Ortega, 528 U.S. 470, 482, 120 S.Ct. 1029, 1037, 145 L. Ed.2d 985, 998 (2000).   There must be “a probability sufficient to undermine confidence in the outcome.”  Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698.

Powell contends that his trial counsel was deficient, in part, because he failed to advise him of the immigration consequences of the plea.   He does not, however, allege that he informed his attorney that he was not a citizen or that he asked about the immigration consequences of the plea.   Indeed, the plea form signed by Powell has “N/A” underlined in response to Question 17 (“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?”).   There was no discussion of immigration status during the plea colloquy.

The evaluation of the reasonableness of an attorney's performance must be made in reference to the time of the attorney's conduct.  State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, 568 U.S. 1454, 133 S.Ct. 1454, 185 L. Ed.2d 361 (2013).   A defendant must show that his attorney's deficient performance prejudiced his defense.  Fritz, supra, 105 N.J. at 52.   Even if counsel was ineffective, under the second prong prejudice is not presumed and must be proven by the defendant.  Ibid.

To justify withdrawing a guilty plea premised on ineffective assistance of counsel, a defendant must satisfy a modified Strickland standard:

When a guilty plea is part of the equation, ․ “a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases;  and (ii) 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.”

[State v. Nuñez–Valdéz, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (internal quotation marks and brackets omitted).]

Moreover, to obtain relief under the second Strickland prong, “a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.”  Padilla v. Kentucky, 559 U.S. 356, _, 130 S.Ct. 1473, 1485, 176 L. Ed.2d 284, 297 (2010).

In Padilla, the United States Supreme Court held that an attorney's failure to advise a non-citizen client of the immigration risks attendant on pleading guilty was ineffective assistance of counsel.  Id. at _, 130 S.Ct. at 1486, 176 L. Ed.2d at 299.   In Gaitan, supra, 209 N.J. at 372, our Supreme Court held that Padilla was not entitled to retroactive application.   Accord Chaidez v. United States, 568 U.S. _, _, 133 S.Ct. 1103, 1113, 185 L. Ed.2d 149, 162 (2013).   Consequently, the holding in Padilla mandating affirmative advice by counsel on immigration consequences of a plea is not applicable to this case, in which the plea was entered in 1999.

However, in Gaitan, supra, 209 N.J. at 373–74, the Court preserved a defendant's right to raise a claim that the attorney rendered affirmatively incorrect advice:

[A]lthough Padilla will not apply retroactively, Nuñez–Valdéz still governs the standard of attorney performance in New Jersey in ineffective assistance of counsel claims on collateral review.   Thus, if [a PCR applicant] presents a claim showing that he was provided with false and affirmatively misleading advice when entering his plea, then the standard of performance expected of counsel may have been breached.

In this case, Powell has not met the requirements for either the performance or prejudice part of the Strickland test.   He does not allege that his trial attorney gave him affirmatively inaccurate information but only that he did not discuss immigration consequences at all.   In Gaitan, supra, 209 N.J. at 374–75, the Court held that the information provided by Question 17, that a conviction may lead to deportation, was not “misadvice” and that counsel's failure to provide any advice on immigration consequences of the plea did not amount to the “affirmative misinformation and misleading advice” found deficient in Nuñez–Valdéz.   We do not perceive counsel's failure to advise Powell of the immigration consequences here to be unreasonable or outside the norms of the legal profession.   Thus, Powell has failed to demonstrate the first prong of the Strickland test.   In addition, we note that Powell also has a New York conviction that would support his deportation.   Consequently, he has not satisfied the second prong.

Having reviewed Powell's remaining arguments, we find them to be without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).

Affirmed.

PER CURIAM