On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 03-12-1594 and 03-11-1492.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2011 - Decided Before Judges Lisa and Reisner.
Defendant appeals from Judge DeVesa's order of May 29, 2009 denying her petition for post-conviction relief (PCR) and denying her request for an evidentiary hearing. Defendant argues:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HER AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HER CONTENTION THAT SHE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSELS.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO APPELLANT'S CASE.
C. DEFENDANT'S CONVICTIONS MUST BE VACATED SINCE DEFENSE COUNSEL FAILED TO EXPLAIN ALL OF THE CONSEQUENCES OF HER GUILTY PLEAS.
D. DEFENDANT'S ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO EXPLAIN THE CONSEQUENCES A GUILTY PLEA WOULD HAVE ON HER IMMIGRATION STATUS.
We reject these arguments and affirm.
Defendant's present incarceration results from numerous convictions, for which sentences were imposed on several different dates. However, her PCR petition pertained only to her convictions resulting from guilty pleas on February 20, 2004 under two indictments. Defendant appeared on that date before Judge Cantor and pled guilty to: (1) one of the counts in Indictment No. 03-11-1492, charging her with second-degree distribution of a controlled dangerous substance (cocaine) within 500 feet of a public building on August 22, 2003, N.J.S.A. 2C:35-7.1, and (2) one of the counts in Indictment No. 03-12-1594, charging her with third-degree distribution of a controlled dangerous substance (cocaine) within 1000 feet of school property on July 16, 2003, N.J.S.A. 2C:35-7.*fn1
On that same date, February 20, 2004, defendant also pled guilty to another drug charge in a third indictment. Pursuant to a plea agreement, the State recommended that for all three offenses, defendant would receive an aggregate sentence of seven years imprisonment with a three-year parole disqualifier, to be served concurrently with a violation of probation sentence that was anticipated. At the plea hearing, defendant advised the court, in response to questioning, that she was twenty-one years old, had graduated high school, and was able to read and understand the plea form. Defendant acknowledged that she had ample time to discuss the plea form with her attorney, that she reviewed it with him, and that she signed it. She also acknowledged that her attorney had answered all of her questions and that she was satisfied with his advice. Finally, when the judge asked whether she had an opportunity to talk to any other person of her choosing, such as a family member or friend, before entering a guilty plea, she responded affirmatively.
Question number seventeen on the plea form asks: "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?" The possible answers were "YES," "NO," and "N/A [not applicable]." Defendant initially circled "YES," but then crossed it out and circled "N/A." That had been done out of the presence of the court. When the completed plea form was submitted to the court, "N/A" was circled, and the previous circling of "YES" was shown to have been crossed out. Judge Cantor asked defendant: "Are you a citizen of this country, Miss Pryce?" Defendant answered: "Yes, I am."
The State has furnished us with a copy of defendant's Uniform Defendant Intake Report with respect to Indictment No. 03-12-1594. Although the form reflects Jamaica as defendant's place of birth, "Alien Status" is ...