On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Accusation Nos. 06-02-0207 and 06-01-0049.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
In this appeal, defendant seeks our reversal of the denial of his petition for post-conviction relief, claiming his attorney was ineffective in failing to advise him about the deportation consequences of a guilty plea. In light of the absence of any evidence that trial counsel was made aware that defendant was not a citizen -- in fact, defendant asserted under oath during his two plea hearings that he was a United States citizen -- we find no adequate evidence that counsel failed to meet the level of competency required by the Strickland/Fritz test.*fn1
The record reveals that defendant was charged in two accusations; the first charged defendant with third-degree distribution of a controlled dangerous substance (CDS) within 1000 feet of a school zone, N.J.S.A. 2C:35-7; the second charged defendant with third-degree conspiracy to distribute CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5a(1), and a disorderly persons offense, N.J.S.A. 2C:33-2.1. Defendant pled guilty to these accusations on February 15 and March 31, 2006. These guilty pleas were entered as part of a plea bargain whereby the State agreed to a prison sentence of no more than three years on the conspiracy and distribution charges and no more than six months on the disorderly persons offense. The State and defendant also agreed that the terms would run concurrently and that defendant would be free to request a lower sentence or diversion to drug court.
Defendant was sentenced to a five-year special probationary term in drug court, N.J.S.A. 2C:35-14. Less than a year later, defendant was found to have violated the terms of probation and was sentenced to three-year concurrent prison terms on the two accusations. No direct appeal was filed.
On June 25, 2007, defendant filed a pro se petition for post-conviction relief; counsel was assigned and filed a supplemental brief. Defendant argued in the trial court that he was not a citizen and that his trial counsel failed to discuss with him the impact his conviction could have on his status as a resident. The petition was denied without an evidentiary hearing.
Defendant appealed the denial of his petition for post-conviction relief, making the following single argument:
THE COURT ABUSED ITS DISCRETION AND ERRED IN FAILING TO GRANT AN EVIDENTIARY HEARING TO DEFENDANT TO ESTABLISH HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.
We find no merit in this argument and affirm.
Prior to entering into his guilty pleas, defendant executed a plea form, which posed the following 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?"
Defendant answered "N/A," thus suggesting to the court he was a United States citizen. At the plea hearings on the two accusations that occurred on February 15, and March 31, 2006, defendant stated under oath, in response to the trial judge's questions, that he was a United States citizen.
In seeking post-conviction relief, defendant did not present a sworn statement discussing whether or to what extent he discussed his immigration status with his trial counsel. In the supplemental brief filed by assigned counsel, it is argued that the plea form, as answered by defendant, demonstrated that defendant and his attorney "had no discussion of the topic" of immigration, and that defendant was thereby reasonably led to believe the conviction would have no impact on his legal permanent residency. In addition, ...