June 27, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDMUND MENSAH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 01-08-0962.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 21, 2008
Before Judges Sapp-Peterson and Messano.
Defendant Edmund Mensah appeals from the January 23, 2006, order that denied his petition for post-conviction relief (PCR). He raises the following argument for our consideration:
THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S POST-CONVICTION RELIEF PETITION BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL, BECAUSE THE DEFENDANT'S PLEA COUNSEL COMMITTED SERIOUS ERRORS BY MISINFORMING THE DEFENDANT ABOUT THE DEPORTATION CONSEQUENCES OF A GUILTY PLEA; BY FAILING TO INSURE THAT THE PLEA JUDGE CONDUCTED A PROPER PLEA HEARING; AND [BY] FAILING TO EXPLAIN TO THE DEFENDANT THAT, AT A TRIAL, THE STATE WOULD HAVE THE SIGNIFICANT BURDEN OF ESTABLISHING THAT THE DEFENDANT KNEW HIS POST[-]DATED CHECK WOULD NOT BE HONORED.
Having considered these contentions in light of the record and applicable legal standards, we affirm.
On August 2, 2001, defendant, represented by Hassen Abdellah, Esq., entered a plea of guilty to a single-count Union County accusation charging him with issuing a bad check, N.J.S.A. 2C:21-5. In what we concede was a highly unusual procedure, defendant and two other defendants all appeared before the trial judge at the same time, each represented by their respective counsel. The judge posed certain predicate questions to all three defendants at once, noting, "You have to answer out loud because there's a tape. I need to hear your voices." She then asked, "Are you all citizens of the United States?" The transcript reveals a single, "Yes," as the answer and does not indicate whether it was one or all defendants who responded.
The judge explained the various rights that all defendants were waiving by entering guilty pleas, and then she directed her remarks to defendant.
Judge: Mr. Mensah, did you on April 2nd in the Township of Union issue a check for $4,270 that you knew was not good?
On December 7, 2001, defendant appeared before another judge for sentencing, once again represented by Abdellah. The victim of the crime, Richard E. Marczak, appeared and provided an impact statement to the judge in which he alleged that defendant had "given [him] four other bad checks." He also advised the judge that defendant owed him "$11,000 in back rent." The judge noted that the plea agreement provided for restitution as part of defendant's probation, and then sentenced defendant to two years probation, restitution in the amount of $4270, and imposed the appropriate financial penalties.
Defendant violated the conditions of his probation, and a notice of violation was filed in July 2002. Defendant failed to appear for a hearing on the violation of probation (VOP) and a warrant was issued. Defendant made bail but subsequently failed to comply with a payment schedule and failed to report to his probation officer. In addition, a VOP had also issued as a result of defendant's conviction in Morris County for similar charges, and he had also failed to appear in Morris County, resulting in a warrant for his arrest.
On August 20, 2004, defendant appeared before a third judge in Union County and pled guilty to the VOP based upon a willful failure to report and willful failure to make payments toward restitution. The judge vacated defendant's prior probationary sentence and imposed a custodial term of three years in prison.
On August 24, 2005, defendant filed a pro se petition for PCR, in which he noted that he had "filed for a reconsideration of sentence . . . on 10/8/04  which [he was] converting into a PCR motion to vacate [his] plea." He noted he also had filed a PCR petition based upon the Morris County conviction. Defendant claimed that he was being held at the Middlesex County Jail "by the ICE (Immigration and Customs Enforcement)" and "undergoing deportation proceedings as a result of the guilty plea . . . ." He noted his "deportation [was] imminent."
Defendant also set forth his legal grounds for the PCR petition: "1) counsel did not advise me of the additional immigration consequences of the plea"; "2) counsel did not advise me of the essential elements of the crime, namely that it constitutes a crime of moral turpitude for immigration purposes"; and "3) no money nor services was obtained from the check and it was post[-]dated. The recipient of the check was to confer with me before attempting to deposit [the check]."
The Office of the Public Defender undertook representation of defendant on his PCR petition and filed a letter brief on January 5, 2006. PCR counsel's certification included a copy of the deportation charges, which revealed that defendant was "a native of Ghana," entered the United States in 1985, was provided the status of "Lawful Permanent Resident" on December 1, 1990, and was now being deported having been "convicted of two crimes involving moral turpitude."
On January 23, 2006, defendant appeared before a fourth judge in Union County for a hearing on his PCR petition. Defendant testified that when Abdellah inquired where he was from, defendant told him that he had emigrated from Ghana, that "[he] was legal," and had been "legal[ly] in this country at that point for about [eleven] years." Defendant claimed that Abdellah advised him that because he was "legal for a long time," and because of "the nature of the offense," his immigration status would not be affected by the guilty plea. Defendant claimed that he "pled guilty knowing that [he] would not be deported," because "that was [his] primary concern at the time." Defendant testified that at the plea hearing, he did not tell the judge he was a citizen, but rather responded that he was not, and that the transcript of the plea proceedings did not accurately reflect this.
Defendant further claimed that he issued a post-dated check to Marczak because he was unsure if he had sufficient funds in the account. He testified that Marczak was supposed to call him before depositing the check, but did not do so, resulting in the check bouncing. Defendant claimed that Abdellah never discussed with him "the legal implications of a post-dated check." Defendant claimed that he would not have pled guilty if he "knew about the presumptions with regard to post-dated checks."
On cross-examination, the prosecutor directed defendant's attention to the plea forms he executed on the day he pled guilty. In particular, defendant acknowledged that his answer to question seventeen on the form--"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?"--was "N/A," meaning not applicable.
Abdellah was called as a witness by the State. He testified that defendant never asked him any questions regarding the consequences his guilty plea might have upon his immigration status. On cross-examination, Abdellah claimed that if defendant had told him that he was not a citizen, he would have advised him that by pleading guilty he could be subject to deportation. However, Abdellah recalled that defendant led him to believe he was a United States citizen and that question seventeen on the plea form simply was not applicable to defendant's situation. Abdellah testified that he was familiar with the issues of immigration status because he "ha[d] someone who work[ed] in [his] office who d[id] immigration . . . ." Furthermore, under questioning by the judge, Abdellah testified that if defendant had told him he was not a citizen, but rather was here "legally," he would not have answered question seventeen on the plea form as "not applicable."
The judge issued his decision orally on the record following the hearing. He did "not believe  defendant when he sa[id] that  Abdellah did not discuss with him this issue." Rather, he found Abdellah's testimony "persuasive," and concluded "defendant was advised of the consequences and that he told  Abdellah he was . . . a citizen and that's why [question seventeen] was answered as N/A." In short, the judge found Abdellah "did nothing wrong."
Regarding defendant's argument that he would not have pled guilty if he understood the substantive law regarding the charge, the judge concluded, "I don't believe that to be true." The judge concluded that there was no credible "evidence that . . . defendant was improperly represented or not told about the consequence of his plea." He denied the PCR petition, and this appeal ensued.
Defendant reiterates before us, as he did before the PCR judge, that Abdellah provided ineffective assistance in three respects. First, he contends Abdellah "misinformed" him "about the deportation consequences of a guilty plea." Second, he claims Abdellah "failed to object at the plea hearing to the judge's improper simultaneous questioning of three defendants . . . ." Third, he argues that Abdellah "failed to adequately explain to [him] that, had the case gone to trial, the State would have the considerable burden of proving that [he] knew his post[-]dated check would not be honored at the later date." We find none of the arguments persuasive.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S.Ct. at 2066-67, 80 L.Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58.
While we "are not bound by and give no deference to the legal conclusions of the PCR court," we defer to the judge's factual findings when they are "supported by adequate, substantial and credible evidence." State v. Harris, 181 N.J. 391, 415 (2004)(citations omitted), cert. denied sub nom., Harris v. New Jersey, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). In particular, "[a]ppellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999).
Turning to defendant's first contention, the PCR judge had the opportunity to assess the credibility of both defendant and Abdellah. He determined that defendant's claims that he told his lawyer he was not a citizen and that his lawyer failed to discuss the consequences the guilty plea might have on his immigration status were not credible. Instead, the judge believed Abdellah who essentially testified that in his discussions with defendant, he was led to believe that defendant was a citizen. Abdellah specifically testified that if defendant told him he was not a citizen, but was "here legally," he would not have answered "N/A" to question seventeen on the plea form. Having heard the evidence, and having had the opportunity to judge the credibility and demeanor of the respective witnesses, we defer to the PCR judge's factual findings. As a result, defendant has failed to demonstrate that Abdellah's performance was deficient in this regard, and thus, failed to demonstrate that he received ineffective assistance of counsel.
Defendant next argues that Abdellah provided ineffective assistance because he permitted the judge to question three defendants at the same time while taking their guilty pleas, and did not object to the procedure. While we do not condone the procedure, any substantive arguments defendant now raises regarding its impropriety under Rule 3:9-2 are deemed waived since they could have been raised on direct appeal, and were not. R. 3:22-4.
We assume arguendo that Abdellah's failure to object to the procedure was an error and that defendant has proven the first prong of the Strickland test. We are, nonetheless, hard-pressed to see how defendant has demonstrated that had he objected, a different result would have occurred, in particular, defendant would not have entered his guilty plea.
In this regard, defendant testified that when asked by the judge if they were all United States citizens, the other two defendants answered "yes," but he said "no." He further contends that somehow his voice was drowned out by the other two and the transcript inaccurately reflects a single answer, "yes," but does not reflect his answer. Defendant testified that when this happened, he looked over to Abdellah, who shook his head indicating defendant should not say anything else.
However, it is clear from the PCR judge's findings that he did not believe that defendant ever advised Abdellah that he was not a citizen. We think it was implicit in this finding that the judge did not believe defendant's testimony that he actually said "no" when questioned by the judge; rather, the judge concluded the transcript accurately reflected a "yes" answer from all three defendants. Thus, even if Abdellah had objected to the procedure, and even if defendant's plea allocution was taken individually, it would not have altered the result in the least.
Lastly, defendant argues that Abdellah provided ineffective assistance because he did not adequately explain the substantive law regarding the bad check charge. Defendant argues that because the check he gave Marczak was "post-dated," the presumption set forth in N.J.S.A. 2C:21-5, i.e., that he knew the check would not be paid when presented, was unavailable to the State. Therefore, the prosecution would have had a more difficult time in proving that he knew the check was drawn against insufficient funds.
However, we find this argument unpersuasive for two reasons. First, the PCR judge specifically did not believe defendant's testimony that had he known about the lack of any presumption he would not have pled guilty. As the judge noted, defendant's reason to now make such a claim, years after pleading guilty, was his imminent deportation. Second, when asked at the time of his guilty plea, defendant told the judge that he knew the check he issued to Marczak was not good when he gave it to him, thus admitting all the elements of the crime without reservation. Defendant never protested his innocence regarding the charge, and even now only claims that Marczak was supposed to call him before cashing the check. In short, even if Abdellah did not fully explain the substantive law to defendant, we have no doubt that it did not matter. Defendant would have still pled guilty pursuant to the generous plea agreement because he acknowledged he had no defense to the charge.
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