On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-06-795.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2010
Before Judges Skillman and Simonelli.
On September 17, 2004, defendant pled guilty pursuant to a plea bargain to aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a). On February 4, 2005, the trial court sentenced defendant in accordance with the plea bargain to a twelve-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On October 16, 2007, after hearing argument on a sentencing calendar, see R. 2:9-11, we affirmed the judgment of conviction. State v. Cooper, No. A-3644-05T4.
On November 20, 2007, defendant filed a petition for post- conviction relief based on alleged ineffective assistance of trial counsel. In support of his petition, defendant submitted a certification, dated June 6, 2008, which stated in pertinent part:
2. Up until the time of my sentencing I was represented by Frank Shamy as my defense counsel.
3. I was offered a plea offer of a sentence of 12 years in state prison with 85% to be served without the possibility of parole.
4. At the time that I entered into a plea agreement on September 17, 2004 I was a citizen of Jamaica and resident alien in the United States. I was not a United States citizen. I had informed my counsel, Mr. Shamy, when we first met that I was not a citizen.
5. On the day that I entered into the plea agreement, Mr. Shamy filled out the plea form but never discussed any of the questions on it with me, much less question #17 which I now know asks whether a defendant knows that, if he or she is not a United States citizen, he or she can be deported if they enter a guilty plea.
6. I would not have entered into this plea agreement if I had known that I would be subject to deportation upon the completion of my prison sentence.
7. When I entered Northern State Prison I was placed on immigration detainer by ICE and have been told that I will be deported back to Jamaica when I complete my prison sentence.
Without conducting an evidentiary hearing, the trial court denied defendant's petition by an oral opinion rendered on July 17, 2008. In rejecting defendant's claim that he received ineffective assistance of counsel with respect to his status as a non-citizen and the risk ...