November 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PRINCE HASAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 04-10-0359.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 12, 2008
Before Judges Sapp-Peterson and Baxter.
Defendant Prince Hasan appeals from the June 27, 2007 order denying his Petition for Post-Conviction Relief (PCR) following an evidentiary hearing. On appeal, Hasan contends that he was deprived of the effective assistance of trial counsel, who failed to investigate and properly advise him concerning his "jeopardy regarding his immigration status and represented [him] while representing a co-defendant." We disagree and affirm.
On July 16, 2004, as part of a negotiated plea agreement, defendant pled guilty to third-degree distribution of CDS under two separate indictments, in exchange for the dismissal of the remaining counts contained in those two indictments and recommended concurrent sentences that would not exceed four years. On November 29, 2004, defendant pled guilty, in connection with a third indictment, to one count of third-degree conspiracy to possess CDS with the intent to distribute. He was sentenced on the same day to another four-year custodial term that would run concurrent to the sentences he received on the earlier indictments.
On April 1, 2005, defendant filed a pro se petition for PCR. The initial petition did not specifically set forth the basis for the petition. On August 4, 2006, through retained counsel, defendant submitted a supplemental letter brief in support of the petition.*fn1 Defendant argued that at the time he entered his initial plea of guilty, he was unaware that "he would be subject to immigration problems as a consequence of his plea." Defense counsel explained that a deportation detainer was lodged against defendant on July 11, 2005, and that defendant was facing deportation proceedings. Defendant asserted that he would not have pled guilty had he known that as a result of doing so he would be subject to deportation.
On August 11, 2006, the trial court conducted a PCR hearing that resulted in an amendment of the judgment of conviction to reflect defendant's plea on the first two indictments to third-degree conspiracy to distribute CDS rather than third-degree distribution of CDS. This amended judgment, according to the court, "would avoid the deportation issue for Mr. Hasan[.]"
On September 15, 2006, however, defendant filed a second pro se PCR petition. He claimed that he received ineffective assistance of counsel because his PCR counsel failed to advance any of the post-conviction relief issues that he had raised. He sought a "remand" because he was "inadequately advised about the penal consequences of the plea, as he was never informed that he would be subject to immigration problems as a consequence of his plea."*fn2 On June 22, 2007, following oral argument, the court denied the petition.
The court reasoned that although at the time defendant entered his plea, there had been dual representation on behalf of defendant and a co-defendant in connection with Salem County Indictment No. 04-05-0171, that indictment was actually dismissed against defendant. Further, the court found, albeit on the representations of the prosecutor, that defendant's trial counsel did not actually represent the co-defendant in negotiating the plea agreement. Rather, another attorney negotiated the agreement with the prosecutor and represented the co-defendant at the time the plea agreement was entered, but retired before the sentencing of the co-defendant. The court thus concluded there was a brief seven-day period when there was dual representation, but citing State v. Murray, 162 N.J. 240, 250 (2000), the court found the conflict did not rise to the level of ineffective assistance of counsel on defendant's behalf that warranted post-conviction relief.
We agree and note that the facts here are distinguishable from those we recently addressed in State v. Alexander, ___ N.J. Super. ___ (App. Div. 2008) (slip op. at 7), where we reversed the denial of PCR based upon dual representation of two defendants being charged under the same indictment. The trial counsel negotiated a plea agreement on behalf of the defendant, but prior to that defendant's sentencing, he also commenced representation on behalf of the defendant's co-defendant. The trial counsel was in possession of discovery, which suggested that either of the defendants could have been a witness against the other, thereby potentially leading to a reduced sentence for either defendant. No such factual scenario is reflected here, nor proffered by defendant. As the Court observed in Murray, supra, "not every potential attorney conflict rises to such an unacceptable level that it deprives a defendant of the right to effective assistance of counsel." Murray, supra, 162 N.J. at 249. Thus, based on this record, the PCR judge properly found that "there was no actual ineffectiveness of counsel presented[.]" Id. at 250.
Turning to defendant's claim that he was never advised of the immigration consequences of pleading guilty, the court first noted that there is no requirement that a defendant be advised of collateral consequences of a plea, but only that a defendant be advised of penal consequences of a plea. State v. Johnson, 182 N.J. 232, 236-37 (2005). The court also observed that there is a distinction between not being informed of collateral consequences and being misinformed of collateral consequences. The court stated that the latter situation "triggers potentially a Strickland v. Washington analysis, and we would go down a separate track." See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). The court acknowledged that it could not make any finding in this regard because defendant's prior counsel was not present, although defendant had been given an opportunity to produce him.*fn3 The court then noted that on the July 16, 2004 plea form that defendant executed, he checked "n/a" in response to the question, "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?"
Further, the court pointed out that on that same date when the plea agreement was placed on the record, the judge at that time specifically asked defendant whether he was a "U.S. citizen" and defendant responded, "Yes, Sir." Based upon these findings the judge determined:
Now, I'm willing to take your word for it that he thought he was a citizen. I don't know if he thought he was or whether he was deliberately being false with the Court. I don't know which it was. But in any event, if he said that to the Court with [defense counsel] present, yes, I am a United States citizen, which he did say that, [defense counsel] can hardly be held to the standard which you suggest, which would be to make further inquiry into someone's national origin status. That would -- that is simply not the law. It's not the test that we would impose upon a defense counsel to take that . . . step.
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, supra, applies. 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, a defendant must satisfy the two prongs of the test. Ibid.
First, "a defendant must show that counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 1608, 36 L.Ed. 2d 235, 243 (1973)). Second, a defendant must also establish "'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.'" Ibid. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 210 (1985)).
Proof of the first prong is established when a defendant demonstrates that an 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).
Because deportation is a "collateral" rather than "penal" consequence of a criminal conviction, 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. Chung, supra, 210 N.J. Super. at 433-35. Similarly, there is no constitutional requirement that the trial judge explain the possibility of deportation to the defendant. Id. at 433.
However, an attorney fails to provide reasonably competent representation when the attorney provides "erroneous information concerning possible immigration ramifications," or the attorney engages in "actual misrepresentation" of the collateral consequences. Id. at 434-35. See also State v. Garcia, 320 N.J. Super. 332, 339 (App. Div. 1999) (stating "[d]efense attorney, during the plea process, can provide inadequate assistance by misinforming his or her client").
Nothing in the record suggests that defendant was misinformed about the collateral consequences of his guilty plea regarding deportation. As the PCR judge noted, there would have been no reason for defense counsel to provide any advice to defendant about the possibility of deportation because defendant represented on his plea form and to the court, in defense counsel's presence, that he was a United States citizen. Consequently, since defendant failed to satisfy the first prong of the Strickland test, the court did not err in denying defendant's PCR petition.