On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-11-0893.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 argues he was denied the effective assistance of counsel because his trial attorney did not adequately advise him of the deportation consequences of his guilty plea. Because defense counsel was under no duty in 2006 to provide such advice, we reject defendant's arguments and affirm.
On January 31, 2006, defendant, a noncitizen, entered a guilty plea to, among other things, possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-5(b)(12), which constituted, for immigration purposes, an aggravated felony subjecting defendant to mandatory removal from this country, see 8 U.S.C.A. § 1101(a)(43)(B); 8 U.S.C.A. § 1227(a)(2)(A)(iii). Defendant was sentenced to a three-year prison term, subject to a fourteen-month period of parole ineligibility.
Defendant was later detained by federal immigration officials for removal to Jamaica. On November 12, 2007, defendant filed a pro se motion for relief from the judgment of conviction, asserting that his trial attorney failed to properly advise him about the deportation consequences of his guilty plea. Specifically, defendant alleged that his attorney advised "he had negotiated" a plea that "was in [defendant's] best interest." Defendant also alleged that his attorney told him that defendant could "contact him subsequently to file an
[a]ppeal if [he found himself] subjected to [i]mmigration
[d]eportation [p]roceedings." Defendant claims he would not have entered into the guilty plea if aware that deportation would follow.
The PCR judge denied relief*fn1 and defendant appealed, presenting the following arguments for our consideration:
I. DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT HIS PLEA REGARDING THE MANDATORY DEPOR[T]ATION CONSEQUENCE OF ENTERING A PLEA OF GUILTY (Partially Raised Below).
A. Defendant was not properly advised regarding the deportation consequence of entering a guilty plea (Raised Below).
B. Plea counsel failed to procure an appeal on behalf of defendant (Not Raised Below).
II. DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF PCR ...