On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Accusation No. 91-10-0821-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Nugent.
In this appeal from the denial of post-conviction relief (PCR), defendant asserts, albeit in an unusual way, that his trial attorney was ineffective because she failed to adequately advise him about the deportation consequences of his guilty plea. That is, defendant argues he is entitled to relief from his 1991 judgment of conviction because he should not have been sentenced without a presentence report -- notwithstanding his waiver of that right -- and, if a presentence report had been prepared and considered by the sentencing judge, it likely would have revealed, contrary to defendant's assertions at the plea hearing, that he was not a citizen; and if the fact that he was not a citizen was known, defendant would have been entitled to advice that his guilty plea presented a basis for mandatory deportation. We reject these arguments and affirm.
On October 29, 1991, pursuant to a negotiated agreement, defendant pleaded guilty to third-degree possession of a controlled dangerous substance with the intent to distribute within 1,000 feet of school property, N.J.S.A. 2C:35-7, in exchange for the State's recommendation of a three-year prison term with a one-year period of parole ineligibility and the dismissal of the other counts of the accusation. On the same day, defendant waived his right to a presentence report and the judge sentenced him to the prison term recommended by the State. During this proceeding, defense counsel also represented to the judge that defendant "advise[d] [her] that he is a U.S. citizen. He apparently applied for citizenship and did acquire citizenship." Defendant did not then contradict this statement regarding his citizenship.
In March 2009 -- nearly eighteen years after the judgment of conviction -- defendant received notice that a proceeding for the purpose of seeking his removal from the country would take place before an immigration court in Baltimore. In June 2009, defendant filed a PCR petition, which, contrary to the requirements of Rule 2:6-1(a), has not been included in defendant's appendix. Nevertheless, we assume from the oral argument occurring in the trial court that defendant asserted he was denied the effective assistance of counsel required by the Sixth Amendment because of his waiver of the presentence report and the concomitant loss of an opportunity to ferret out the fact that he was not a citizen.
Judge Honigfeld did not conduct an evidentiary hearing into these
allegations. Instead, by way of a thorough oral opinion, he agreed
with defendant that it was inappropriate for the trial judge to
sentence defendant without a presentence report but that it "would not
in any way, shape, or form have conceivably affected the outcome of
what the sentence would have been." As a result, Judge Honigfeld
concluded that the second prong of the Strickland/Fritz*fn1
test could not be met and denied relief.
Defendant appealed, arguing:
I. THE SUPERIOR COURT ERRED IN HOLD[I]NG THAT THE ABSENSE OF A PRESENTENCE INVESTIGATION REPORT AT THE TIME OF SENTENCING DID NOT [GENERATE] AN ILLEGAL SENTENCE DESPITE FINDING THE WAIVER OF THE APPELLANT'S PRESENTENCE REPORT RESULTED IN INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Appellant's Counsel Erred In Waiving The Presentence Investigation Report Constituting A Serious Deficiency.
B. But For The Error Of The Defense Counsel, Petitioner Would Have Received A Legal Sentence And A Proper Plea.
We find insufficient merit in these arguments to warrant discussion in a written opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons set forth in Judge Honigfeld's oral decision. We add only the following brief comments.
As noted earlier, defense counsel advised the trial judge when defendant entered his guilty plea that defendant had represented he was a United States citizen. In his decision denying post-conviction relief, Judge Honigfeld additionally observed that defendant "indicated on the plea form that he was a United State[s] citizen."*fn2 Because all the evidence available at or before the plea hearing suggested defendant was a citizen, defense counsel was under no obligation to ...