April 30, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KINGSLEY PENIANAH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-09-1444.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 20, 2012
Before Judges Yannotti and Guadagno.
Defendant Kingsley Penianah appeals from the denial of his petition for post-conviction relief (PCR) and raises the following points:
IT WAS JUDICIAL ERROR TO DENY THE MOTION FOR POST-CONVICTION RELIEF POINT II
THE DEFENDANT IS ENTITLED TO A REMAND TO THE TRIAL COURT FOR AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL POINT III
ALL POINTS RAISED BY DEFENDANT-APPELLANT IN ANY AND ALL PRIOR AND SUBSEQUENT SUBMISSIONS TO THE COURT ARE INCORPORATED BY REFERENCE INTO THIS BRIEF We have carefully considered these arguments in light of the record and applicable legal standards. We affirm.
Defendant entered the United States in September 2007 on a tourist visa from his home country of Ghana under the name Kingsley Penianah. The visa allowed defendant to remain for six months but did not permit employment. Nevertheless, defendant took a job as a home health aide with At Home Senior Care (At Home), under the name Evans Gambler. To obtain the position, defendant presented documents in the name Evans Gambler, including a New Jersey Division of Consumer Affairs (NJDCA) home health aide license. At Home placed defendant in the home of a customer to provide care. He remained in the United States after March 16, 2008, the end of his permitted stay, without applying for an extension.
On April 2, 2008, the director of At Home learned that defendant was not Evans Gambler and sent a representative to defendant's home to question him about his identity. There was a confrontation, the police were called, and defendant was arrested and charged with harassment.
The police later determined that defendant had overstayed his visa and notified federal immigration authorities. A warrant was issued by Immigration and Customs Enforcement (ICE) for defendant's arrest and removal proceedings were initiated to deport him. Defendant was released after posting $10,000 bail.
Shortly after his release, defendant returned to At Home to attempt to collect a paycheck. The police were again summoned and questioned defendant as to his true identity. Defendant admitted assuming the identity of Evans Gambler to obtain employment, but denied presenting false identification. During the investigation, the police seized a NJDCA license and a forged alien card, both in the name of Evans Gambler, from defendant.
Defendant was rearrested and charged with two counts of impersonation/identity theft, in violation of N.J.S.A. 2C:21-17(a)(1) and (a)(4). ICE filed another detainer, but bail was not permitted and defendant was detained.
On September 25, 2008, defendant waived prosecution by indictment and pled guilty before Judge James Den Uyl to one count of third-degree impersonation/identity theft under N.J.S.A. 2C:21-17a(1). Defendant, who was represented by an Assistant Deputy Public Defender, signed a plea agreement and admitted his guilt under oath. As part of his plea agreement, defendant was sentenced to a one-year probationary term conditioned upon the service of 120 days in jail but was given credit for the entire term of 129 days he had spent in jail as time-served. The remaining impersonation and theft charges were dismissed, as was the harassment charge.
Defendant did not appeal this sentence, but on October 21, 2008, filed a pro se PCR petition alleging ineffective assistance of counsel. He was later assigned counsel who filed an amended PCR petition on April 13, 2009.
In November 2008 defendant applied for asylum with the federal Department of Homeland Security (DHS). On April 20, 2009, a United States immigration judge granted defendant's petition for asylum and ordered his removal to Ghana withheld.
DHS appealed, but on September 9, 2009, the Board of Immigration Appeal (BIA) issued a four-page decision dismissing the appeal.*fn1
On July 22, 2009, Judge Den Uyl heard oral argument on defendant's PCR application. Defendant claimed that his attorney pressured him to accept the plea agreement and told him he would be convicted only of a disorderly persons offense.
Without conducting an evidentiary hearing, Judge Den Uyl denied the petition for PCR, finding defendant's claims without merit and unsupported by the record.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, he "must show . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693) (internal quotation marks omitted). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Ibid. A defendant must show by "a reasonable probability" that the deficient performance affected the outcome of the trial. Id. at 58.
While a "claim of ineffective assistance of ... counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992). "An evidentiary hearing ... is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2012); see also State v. Rountree, 388 N.J. Super. 190, 214 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). "[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999).
Applying these standards, we find that defendant's claims on appeal lack sufficient merit to warrant extensive discussion in this opinion and affirm for the reasons placed on the record by Judge Den Uyl. R. 2:11-3(e)(2). We make only the following observations.
The record is devoid of any mention of a downgraded plea and the charge was carefully explained to defendant:
THE COURT: All right. Now, in pleading guilty to this charge, and it's a third degree criminal impersonation, it carries, I'm required to tell you, a statutory maximum penalty of five years in state prison, a $15,000 fine, and state-mandated fines and penalties, such as VCCA. Do you understand that?
DEFENDANT: Yes, your honor.
The plea form initialed and signed by defendant and his sworn testimony during the plea hearing indicate he understood exactly what he was pleading to and all of the provisions of the plea agreement.
Nothing in the record supports defendant's claim that his counsel pressured him to plead guilty by telling him on September 25, 2008, that his case might not be reached for trial until March 2009. Even if this representation was made, Judge Den Uyl found that this was "a reasonable estimate of the anticipated court schedule." Moreover, we agree with Judge Den Uhl that:
By virtue of pleading at the juncture which the Petitioner did, he received the benefit of a non-custodial sentence and only one-year term of probation, despite the fact that this third degree charge carried a maximum sentence of five years. Therefore, trial counsel was not deficient in this regard, nor was Petitioner prejudiced as a result.
Finally, there has been no showing that representation by a different attorney at sentencing prejudiced defendant. Both plea and sentencing counsel were members of the Public Defender's office and defendant raised no objection to the substitution when given an opportunity to address the court. To the contrary, defendant was fully prepared for sentencing and read from a prepared text where he admitted his conduct, took full responsibility, and apologized for his actions. His statement and expressions of remorse evidenced a complete understanding of the proceedings. Moreover, we recognize the high volume of cases handled by the Public Defender and the occasional need to reassign counsel for a defendant. See e.g. N.J.S.A. 2A:158A-9 and-10; State v. Muniz, 260 N.J. Super. 309, 316 (App. Div. 1992).
As defendant failed to present a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required. Cummings, supra, 321 N.J. Super. at 170-71 (citing Preciose, supra, 129 N.J. at 462-63).