On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-08-1961.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 4, 2012 -
Before Judges Alvarez and Ostrer.
Defendant appeals from an order denying post-conviction relief (PCR). Defendant entered a plea in Monmouth County to third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5b(3), and distribution of over one-half ounce of CDS, cocaine, to an undercover detective, N.J.S.A. 2C:35-5b(2).*fn1
He had been charged in a seventeen-count indictment with multiple CDS-related offenses on various days in the fall of 2006. Pursuant to the plea agreement, Judge Thomas F. Scully treated the second-degree offense as a third-degree offense for sentencing purposes and sentenced defendant to five years probation, conditioned on participation in Drug Court.
Defendant argued in his pro se PCR petition and through appointed PCR counsel, that his trial counsel was ineffective because he failed to inform defendant that, as a permanent legal resident from the Dominican Republic, he was subject to mandatory deportation as a consequence of his conviction. Defendant certified that he would not have entered into the plea agreement had he been so informed. Judge Scully denied defendant's petition without an evidentiary hearing. We affirm.
In his allocution, defendant admitted that he sold cocaine to an undercover detective on multiple days, including on December 28, 2006 in Matawan. He admitted that he distributed over one-half ounce of cocaine. Before defendant entered his plea, both defense counsel and the court expressly addressed defendant's status as a non-citizen, and the consequences of his plea.
Upon stating his appearance at the outset of the plea hearing February 15, 2008, defense counsel noted defendant's status and the likelihood of deportation.
John Brown on behalf of Mr. Jarvis, Your Honor.
I do note that Mr. Jarvis is a permanent resident. He came here from Antigua, so that question was marked that he understands that he can be deported.
I informed him that - I cannot give him any legal advice on whether he would be deported, though we had two former Drug Court clients that, despite their successful participation in Drug Court, when pled guilty to the similar offenses, were deported.
So, I've instructed him to seek . . .
[c]counsel immediately on that ...