October 3, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDDIE JARVIS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 that the Uniform Defendant Intake form was in his file and that he typically would have relied upon the information it contained as having been furnished by the client.
Defendant's immigration attorney testified that the "charging document" in the immigration proceedings sought defendant's removal from the United States because he was an alien illegally in this country, his country of origin being Antigua, and because he entered the country falsely representing himself to be a citizen through the fraudulent use of a United States passport. The charging document made no mention of defendant's 1996 conviction for violating N.J.S.A. 2C:35-7. However, the immigration attorney testified that the government attorney in the immigration case informed him that he was aware of the conviction and that its existence would likely be added as an additional basis for seeking defendant's removal.
Based upon the testimony at the evidentiary hearing, Judge Theemling concluded that in connection with the 1996 proceedings, defendant uniformly represented that he was a native of St. Thomas and therefore a United States citizen, that neither his attorney nor the judge taking the plea and imposing sentence had any reason to think otherwise, and that his attorney was in no way deficient in his representation. Specifically, the judge said, "So I do not find as a matter of fact that [defense counsel] in any way gave any erroneous information or failed to give appropriate information to the defendant." We accept these findings, which are more than amply supported by the record. See State v. Johnson, 42 N.J. 146, 162 (1964).
Where a defendant argues that the ineffective assistance of counsel led to the entry of a guilty plea, the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), applies. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 369-70, 88 L.Ed. 2d 203, 209-10 (1985); State v. Chung, 210 N.J. Super. 427, 434 (App. Div. 1986) (applying the Strickland test to guilty pleas entered in state court). Accordingly, to prevail on the ineffective assistance claim, the defendant must satisfy two prongs.
First, the defendant must show that the attorney's representation "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Specifically, the voluntariness of a represented defendant's guilty plea "depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.'" Hill, supra, 474 U.S. at 56, 106 S.Ct. at 369, 88 L.Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed. 2d 763, 773 (1970)). Reviewing courts must indulge in a strong presumption that counsel provided reasonable assistance. Chung, supra, 210 N.J. Super. at 434 (citing Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695).
The defendant must also demonstrate that the attorney's deficient performance prejudicially affected the plea process. "[T]he defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."
Hill, supra, 474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed. 2d at 210. Prejudice is not presumed. State v. Fritz, 105 N.J. 42, 61-62 (1987).
Defendant contends that his attorney failed to provide reasonably competent representation when he assured defendant that the entry of a guilty plea would not lead to deportation. However, this contention must be considered in light of the unrefuted evidence, reiterated in defendant's certification in support of his PCR petition, that at all times, defendant represented to his attorney (as well as the court) that he was a native of St. Thomas and a citizen of the United States.
Because deportation is a "collateral" rather than "penal" consequence of a criminal conviction, State v. Heitzman, 107 N.J. 603, 604 (1987) (per curiam), aff'g 209 N.J. Super. 617 (App. Div. 1986); State v. Wilkerson, 321 N.J. Super. 219, 224 (App. Div.), certif. denied, 162 N.J. 128 (1999); State v. Garcia, 320 N.J. Super. 332, 336 (App. Div. 1999), an attorney's complete failure to consult or advise his or her client with respect to the deportation consequences of a guilty plea will not give rise to an ineffective assistance claim. Garcia, supra, 320 N.J. Super. at 336-37. Similarly, there is no constitutional requirement that the trial judge explain the possibility of deportation to the defendant. Chung, supra, 210 N.J. Super. at 433.
However, an attorney fails to provide reasonably competent representation when the attorney provides "erroneous information concerning possible immigration ramifications," id. at 434, or the attorney engages in "actual misrepresentation" of the collateral consequences, id. at 435. The common theme running through the misinformation cases is the provision of incorrect legal advice despite counsel's actual or constructive knowledge of particular facts raising questions about the deportation consequences of a guilty plea.
It is clear to us, as it was to Judge Theemling, that defendant's attorney possessed neither actual nor constructive knowledge that defendant was not a United States citizen. We find unpersuasive defendant's reliance on Garcia and State v. Vieira, 334 N.J. Super. 681 (Law Div. 2000). In those cases, as in this one, Question 17 was answered "N/A." In Garcia, we found error for failure to conduct an evidentiary hearing where a factual dispute existed between defendant and his attorney as to whether or not defendant had advised the attorney that he was an illegal Cuban refugee. Garcia, supra, 320 N.J. Super. at 335-40. The ultimate determination of ineffective assistance based upon alleged misrepresentation of deportation consequences would abide the outcome of that factual determination. In the case before us, however, the factual determination has been made after an evidentiary hearing, and, as we have stated, that factual determination is well supported by the record.
The defendant in Vieira disclosed at the time of his arrest that he was born in Portugal and was a resident alien in this country for thirty years. Vieira, supra, 334 N.J. Super. at 683. That information was contained in his intake form and was accessible to defense counsel and the court. Ibid. Further, defense counsel testified that she did not review each question with defendant and did not complete the plea form in his presence. Id. at 684. The court concluded that the attorney's conduct was constitutionally deficient, noting that the information contained in the intake form could fairly be imputed to counsel. Id. at 688. This was further bolstered by the defendant's statement in court that he had difficulty understanding the English language and by the attorney's failure to discuss the plea form with defendant. Ibid. The circumstances in the case before us are materially different. As we have explained, there was no basis for defendant's attorney to believe or suspect that defendant was not a United States citizen. The only misrepresentations in this case were those emanating from defendant.
Accordingly, Judge Theemling correctly concluded that defendant's counsel was not deficient, as a result of which the first Strickland prong was not satisfied. There is no need to address the second prong.
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