On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 95-12-2225.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 26, 2007
Before Judges Lisa and Lihotz.
Defendant appeals from an order denying his post-conviction relief (PCR) petition. On April 18, 1996, pursuant to a plea agreement, defendant pled guilty to third-degree possession of a controlled dangerous substance (CDS) with intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7. As recommended in the plea agreement, he was sentenced to three years probation conditioned upon serving 180 days in the county jail. He served his sentence uneventfully. He did not appeal his conviction. Ten years later, on April 17, 2006, facing deportation proceedings, defendant filed his PCR petition. He alleged his attorney was deficient for misinforming him at the time of his plea about the potential deportation consequences of his conviction, as a result of which he contended his plea was not knowing and voluntary and he should be permitted to withdraw it. After an evidentiary hearing, Judge Theemling found no deficient conduct by counsel and denied the petition.
On appeal, defendant argues:
THE TRIAL COURT BELOW COMMITTED REVERSIBLE ERROR (A-15 TO A-35) IN DECLINING TO VACATE THE DEFENDANT-APPELLANT'S GUILTY PLEA AS THE DEFENDANT-APPELLANT WAS EFFECTIVELY DENIED HIS CONSTITUTIONALLY PROTECTED RIGHT TO COUNSEL -- HAVING BEEN PROVIDED WITH MISINFORMATION AS TO THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA.
We reject this argument and affirm.
When charged with the offense that is the subject of this appeal, defendant sought representation by the Office of the Public Defender in Hudson County. The Uniform Defendant Intake form, containing information provided by defendant, reflected that his birthplace was St. Thomas and he was a citizen of the United States.
At the time of his plea, in answering the questions on the plea form, defendant's attorney reviewed each question with defendant. Question 17 asked, "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 permitted answers were "yes," "no," or "N/A [not applicable]." Defendant's attorney circled "N/A."
At the plea hearing the judge addressed defendant directly and asked him whether he was a citizen of the United States, to which defendant replied, "Yes." At the sentencing hearing, in discussing defendant's personal circumstances, his attorney advised the court that defendant's girlfriend was present in court, that defendant never knew his mother, and that his father and brother were in St. Thomas. The judge commented, "That's part of the United States. So Mr. Jarvis is a citizen of the United States." Defendant's attorney responded, "Certainly. There's no doubt about that." Defendant did not say otherwise.
In support of his PCR petition, defendant certified as follows:
With respect to Question 17 on the Plea Form, I asked [my attorney] if entry of a guilty plea would negatively impact my status in the United States, as I am from St. Thomas, Virgin Islands. [My attorney] replied that I had nothing to be concerned about since St. Thomas was a United States territory. As a result, the Plea Form Question 17 (exhibit 1) response was circled "N/A[.]" [Emphasis added.]
At the evidentiary hearing in the PCR proceeding, defendant called as witnesses the attorney who represented him at the plea and the attorney who was then representing him in his immigration case. His plea attorney testified that he had no recollection of his meeting and conversation with defendant but that he probably circled "N/A" because he believed defendant to be a United States citizen. He was an experienced criminal attorney, and he customarily discussed each question on the plea form with his clients. He would not have circled "N/A" if his client informed him that he or she was not a United States citizen. The attorney further testified ...