On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 92-10-3045 and 94-07-1614.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 8, 2010
Before Judges Fuentes and Ashrafi.
Defendant John Papamilitiadis appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.
On June 20, 1997, defendant negotiated an agreement with the State through which he agreed to plead guilty to two counts of third-degree theft from a person, N.J.S.A. 2C:20-3. The charges emanated from two separate indictments returned by an Atlantic County Grand Jury which also charged defendant with second-degree robbery, N.J.S.A. 2C:15-1. At the plea hearing, defendant admitted to stealing casino chips on two separate occasions in 1992 from persons playing next to him in a casino.
Pursuant to the plea agreement, the State dismissed the robbery charge and agreed to recommend that defendant be sentenced to concurrent terms of three years, conditioned upon defendant appearing on October 3, 1997, the date scheduled for sentencing. Defendant failed to appear for sentencing and a warrant was issued for his arrest.
Defendant remained a fugitive until he was apprehended in 2005. On February 3, 2005, the United States Immigration and Customs Enforcement Agency filed a notice of detainer directing the Atlantic County Sheriff's Department to hold defendant for deportation once he was deemed eligible for release on the pending State charges.
Defendant was produced for sentencing on May 27, 2005. Because he had violated the explicit condition in the plea agreement requiring his appearance for sentencing in 1997, the court was no loner limited to the three-year term ceiling originally agreed to by the State. Despite this, the court sentenced defendant to concurrent three-year terms as provided for in the plea agreement. It is noteworthy that defendant did not raise the issue of his immigration status or the pending deportation order at the sentencing hearing.
Defendant did not file a direct appeal challenging the sentence imposed by the court or attacking the basis for his guilty plea. On February 27, 2006, defendant was deported to his native country of Greece shortly after being paroled from the three-year sentence imposed by the court.
On March 17, 2006, defendant filed a pro se PCR petition claiming that his trial counsel was ineffective in 1997 when she failed to inform him of the immigration consequences of his guilty plea. Court-assigned PCR counsel thereafter filed a brief in support of defendant's petition. Defendant also submitted a certification claiming that although his attorney advised him that a plea of guilty could result in deportation, the attorney also said that "in reality, no one is ever deported from third degree charges, for cases involving theft." He thus was "unaware of the real deportation exposure my plea of guilty offered."
The matter came before the trial court on October 16, 2008. In order to give the court's ruling analytical context, we must articulate the standard for determining ineffective assistance of counsel claims. We review a claim of ineffective assistance of counsel under the two prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must show that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
The PCR judge began his analysis by noting that despite defendant's claims concerning the advice he received from his trial attorney, he was aware of the immigration consequences of his plea from other independent sources. Specifically, question 17 of the Plea Form completed by defendant asked: "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 "yes." The PCR judge also found
[The] judgment of conviction showed that at sentencing the Court noted that he had a detainer against him from the U.S. Immigration, and his criminal record showed that he faced deportation proceedings in 1967 filed by INS in New York. After 1967, he had numerous deportable convictions and the detainer was in place ...