STATE OF NEW JERSEY v. PAUL ASARE (2013)

Defendant appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) without an evidentiary hearing.   We affirm.

I.

State Accusation 04–06–713A charged defendant with a single count of fourth-degree false swearing, N.J.S.A. 2C:28–2(a).   The accusation charged that on December 28, 1999, defendant “knowingly did falsely state while under oath” that statements made on an application submitted to the United States Department of State were true.   On June 22, 2004, while represented by counsel, defendant signed a plea form agreeing to enter a plea of guilty to the accusation in return for a sentence of 180 days' imprisonment in the Morris County Correctional Facility.   The plea form recited defendant's understanding of the charge and his waiver of various rights.   In addition, defendant answered “YES” on the form 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?”

On the day he executed the plea form, defendant appeared in court to place his plea on the record.   Defendant was sworn and, in response to questions posed by his attorney, acknowledged his waiver of the right to proceed by indictment returned by the grand jury and his agreement to plead guilty to the accusation.   Defendant also expressly waived his trial rights and stated he understood the charge to which he would be pleading, and that he “would have a criminal record as a result of this.”

After a discussion between the prosecutor and defense counsel on the record, defendant stated he understood that in return for the guilty plea, he would receive a sentence of probation conditioned on serving 180 days in the county correctional facility.   During the plea colloquy, defense counsel asked defendant, “[Y]ou are not a United States citizen and there is a risk or chance that you can be deported as a result of this plea.   Do you understand that?”   Defendant replied, “Yes” and then acknowledged that he was satisfied with counsel, had no questions and had been given enough time to think about the plea.

Defendant thereafter provided a factual basis for the plea, admitting that he had knowingly submitted a passport application that contained false information.   Defendant was sentenced on July 23, 2004, to two years of probation, conditioned upon 180 days of incarceration in the county correctional facility.   Defendant filed no appeal.

On April 26, 2010, defendant filed a pro se PCR petition, in which he stated he had been incarcerated for “the last three years” in the Maryland Correctional Institute on charges that were “not related” to his false swearing conviction in New Jersey.   Defendant alleged his counsel in New Jersey was ineffective because he “failed to adequately advise” defendant of his right to a speedy trial, trial by jury, to confront the State's witnesses, due process, compulsory process, and “to be informed of the nature and cause of the accusations against him[.]”  Defendant also alleged his counsel failed to advise him “to consult a competent immigration attorney who is able to competently and adequately advise him concerning immigration laws and the consequences of his (involuntary) plea.”   He added that counsel “never told me that I was subject to mandatory deportation.”

In a later brief filed by new counsel in support of his PCR petition, defendant explained he was “in federal custody awaiting deportation to his Native Ghana” and would not have entered the guilty plea if he had been “properly advised of the mandatory deportation.”   The brief also stated that defendant “pled guilty to crimes which made deportation mandatory[,]” but did not identify what other “crimes” defendant had pled guilty to, other than the fourth-degree false swearing charge in New Jersey.   No documents pertaining to the deportation proceedings were provided, with the exception of a “Notice of Hearing in Removal Proceedings” scheduled for December 2, 2010.

On November 15, 2010, the PCR judge, after considering the arguments of counsel, stated he would deny the petition and would provide counsel with a written opinion shortly.   On the same date, the judge executed an order denying the petition, and in a subsequent “statement of reasons and conclusions of law” concluded that the petition was time-barred under Rule 3:22–12.   The judge also addressed the merits of defendant's petition, and opined that, after reviewing the plea form and the plea colloquy on the record, defendant had “made a knowing and voluntary waiver” of his trial rights.

As to defendant's claim respecting deportation, the judge opined, in pertinent part, that while the plea forms in use in New Jersey were modified to be more explicit after State v. Nunez–Valdez, 200 N.J. 129 (2009), and Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L. Ed.2d 284 (2010), were decided, he could not “ignore” the plea forms and protocols in use in 2004 which were followed here.   He concluded that the plea form signed by defendant was “crystal clear” and that, on the basis of that and the plea colloquy, “defendant was expressly informed that his deportation was a potential consequence of his guilty plea.”   He added that defendant's plea was therefore “sufficient as a matter of law[.]”  This appeal followed.

II.

Defendant raises the following arguments on appeal:

POINT I

THE PCR COURT ERRED RULING THAT MR. ASARE'S PETITION FOR POST–CONVICTION RELIEF WAS TIME–BARRED[.]

POINT II

THE PCR COURT ERRED IN RULING THAT THE FAILURE OF TRIAL COUNSEL TO ADVISE MR. ASARE THAT, AS A RESULT OF HIS PLEA, HE WOULD BE DEPORTED, DID NOT DEPRIVE MR. ASARE OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL[.]

POINT III

THE PCR COURT ERRED IN RULING THAT MR. ASARE'S PLEA WAS FREELY AND VOLUNTARILY GIVEN[.]

POINT IV

THE PCR COURT ERRED WHEN IT DENIED MR. ASARE'S REQUEST FOR AN EVIDENTIARY HEARING[.]

Having considered these arguments in light of the record and the law, we affirm the order denying defendant's PCR petition without an evidentiary hearing.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693.   Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient.  Ibid. 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.   The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).

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.’ ”  Id. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L. Ed.2d at 694).   Further, because prejudice is not presumed, ibid., a defendant must demonstrate “how specific errors of counsel undermined the reliability” of the proceeding.  United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L. Ed.2d 657, 668 n.26 (1984).

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)).]

Moreover, to obtain relief under the second 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, supra, 559 U.S. at 369, 130 S.Ct. at 1485, 76 L. Ed.2d at 297.   An evaluation of the reasonableness of counsel's performance must take into account the time of counsel's conduct.   State v. Gaitan, 209 N.J. 339, 350 (2012), cert. denied, 568 U.S. _, 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 defendant.  Ibid.

Applying these standards, we discern no reason to disturb the findings and conclusions of the PCR judge.   We have reviewed defendant's arguments and conclude they are without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).   We add only the following comments.

The United States Supreme Court's decision in Padilla, supra, imposed an affirmative obligation on criminal defense attorneys to inform their clients of the possible immigration consequences of entering a guilty plea.  559 U.S. 356, 130 S.Ct. 1473, 176 L. Ed.2d 284.   In extending counsel's duty beyond not rendering incorrect advice, the Court declared that counsel has an affirmative duty to inform a defendant when a guilty plea will result in deportation, at least where the relevant law pertaining to mandatory deportation is “succinct, clear, and explicit.”  Id. at 366, 130 S.Ct. at 1483, 176 L. Ed.2d at 295.

Thereafter, our Supreme Court held the rule enunciated in Padilla only applied prospectively.  Gaitan, supra, 209 N.J. at 371–72.   The Court noted new rules typically “do[ ] not apply retroactively to a case where direct appeal is over and the case is only being reviewed on a collateral basis,” as is the case here.  Id. at 364 (citing Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L. Ed.2d 334, 356 (1989)).   Additionally, the Court addressed results flowing from misinforming a defendant of the deportation consequences of a guilty plea in Nuñez–Valdéz, supra, 200 N.J. 129, a holding which did not change the law, but reinforced prior principles.

“[T]he level of attorney competence described in Padilla has no application to guilty pleas entered prior to March 31, 2010, the day the decision in Padilla was announced,” State v. Barros, 425 N.J.Super. 329, 332 (App.Div.2012) (citing Gaitan, supra, 209 N.J. at 372, 373, 375–76), and its holding only applies prospectively.  Gaitan, supra, 209 N.J. at 371–72.¹  Defendant entered his guilty plea in 2004, and therefore cannot rely on Padilla.   Defendant expressly acknowledged that his guilty plea could result in deportation.   We perceive no error in the conclusions reached by the PCR judge.

We also perceive no error in the decision not to grant an evidentiary hearing.   Before granting an evidentiary hearing, the trial court must examine the affidavits or certifications submitted, and “the transcripts of the plea colloquy and sentencing hearing ․ to determine if either transcript provides support” for an ineffective assistance of counsel claim.  Gaitan, supra, 209 N.J. at 381.   The record here does not contain any certifications, affidavits, or other evidence to support a prima facie claim of ineffective assistance of counsel.   Moreover, defendant's answer to Question 17 on the plea form, and his admission during the plea hearing, reflect he reviewed the form with counsel, understood its contents, and answered all questions accurately, thus belying a claimed lack of awareness his conviction could entail immigration consequences.   On this record, an evidentiary hearing was not necessary.

Affirmed.

FOOTNOTES

FN1. Subsequently, the United States Supreme Court in Chaidez v. United States,_U.S._, _, 133 S.Ct. 1103, 1105, 185 L. Ed.2d 149, 154 (2013), ruled that Padilla is not retroactively applicable to convictions beyond direct review..  FN1. Subsequently, the United States Supreme Court in Chaidez v. United States,_U.S._, _, 133 S.Ct. 1103, 1105, 185 L. Ed.2d 149, 154 (2013), ruled that Padilla is not retroactively applicable to convictions beyond direct review.

PER CURIAM