On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-09-1231.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2007
Before Judges A.A. Rodríguez and C.S. Fisher.
Defendant, a citizen of the Dominican Republic and legal resident of the United States, was charged with committing third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of CDS with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(3) (count two); and second-degree possession of a firearm while engaged in drug activity, N.J.S.A. 2C:35-5 and 2C:29-4.1(a) (count three). Pursuant to a plea agreement, defendant entered a guilty plea on November 13, 2003 to counts two and three; count one was dismissed. Defendant was sentenced, on January 16, 2004, to a prison term of five years on count three, and a concurrent term of four years on count two. Six months later, deportation proceedings were commenced against defendant based solely upon his conviction in this matter.
On April 18, 2006, after being released from prison, defendant filed a petition for post-conviction relief, claiming his attorney's failure to advise of the potential for deportation deprived him of the constitutional guarantee of the effective assistance of counsel. At an evidentiary hearing, on December 8, 2006, the judge heard the testimony of defendant and his trial attorney, reviewed the arrest report, the plea form, and the presentence report, and concluded, by way of an oral decision, that defendant had failed to demonstrate that he had been denied the effective assistance of counsel.
In appealing the order denying post-conviction relief (PCR), which was entered on December 19, 2006, defendant argues that the record demonstrated that the legal advice provided when he agreed to plead guilty was deficient and that, but for this erroneous advice, he would not have pled guilty. Although we agree with defendant that the evidence adduced at the PCR hearing permitted no finding except that defendant's attorney should have but failed to advise of the deportation consequences of defendant's guilty plea, we conclude there was ample evidence to support the judge's findings that, even if proper advice had been provided, it was not reasonable to believe that defendant would have decided to go to trial. Accordingly, for the following reasons, we affirm the order under review.
In determining whether an accused has been deprived of the constitutional right to the effective assistance of counsel, we apply the two-part test formulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). This test was also adopted as the means for determining when the performance of counsel offends our state constitution. State v. Fritz, 105 N.J. 42 (1987). This test requires that it first be ascertained whether "counsel's representation fell below an objective standard of reasonableness," Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693, and, if so, whether "there is 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. As the Court later observed, the "prejudice" requirement of the second aspect of the test "was based on our conclusion that '[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.'" Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369, 88 L.Ed. 2d 203, 209 (1985) (quoting Strickland, supra, 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed. 2d at 696).
Ultimately, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process" that it cannot be relied on as "having produced a just result." Strickland, supra, 466 U.S. at 686, 104 S.Ct. at 2064, 80 L.Ed. 2d at 692-93. And, in holding that a PCR applicant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," the Court defined "reasonable probability" as "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 (emphasis added); accord State v. Fritz, supra, 105 N.J. at 52.
In Hill v. Lockhart, the Court considered the application of these principles to a claim that a guilty plea would not have been entered but for the unprofessional advice provided by counsel. The Court concluded that the showing of prejudice required by Strickland continues to apply in such circumstances in order to "serve the fundamental interest in the finality of guilty pleas," Hill v. Lockhart, supra, 474 U.S. at 58, 106 S.Ct. at 370, 88 L.Ed. 2d at 210, invoking, by way of further explanation, its comments in an earlier decision:
"Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea." [United States v. Timmreck, 441 U.S. 780, 784, 99 S.Ct. 2085, 2087-88, 60 L.Ed. 2d 634, 639 (1979) (quoting United States v. Smith, 440 F.2d 521, 528-29 (7th Cir. 1971) (Stevens, J., dissenting)).]
As a result, the Court concluded that when a claim of ineffective assistance of counsel arises from a defendant's decision to plead guilty, the first half of the Strickland test is "nothing more than a restatement of the standard of attorney competence" previously defined in cases such as Tollet v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed. 2d 235 (1973), and McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed. 2d 763 (1970). Hill v. Lockhart, supra, 474 U.S. at 58-59, 106 S.Ct. at 370, 88 L.Ed. 2d at 210. On the other hand, the Court explained that the second requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process," and, thus, that to satisfy this "'prejudice' requirement, the 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." Id. at 59, 106 S.Ct. at 370, 88 L.Ed. 2d at 210. See also State v. Chung, 210 N.J. Super. 427 (App. Div. 1986).
The Court in Hill v. Lockhart provided examples of how this second aspect of the test should apply:
[W]here the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense ...