January 7, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GREGORY MAITLAND, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-12-2292.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2012
Before Judges Sapp-Peterson and Haas.
Defendant Gregory Maitland appeals from a September 8, 2010 order denying his petition for post-conviction relief (PCR). We affirm.
On May 10, 1999, defendant was charged in Bergen County Accusation No. A-948-99 with fourth-degree possession of a stolen credit card, N.J.S.A. 2C:21-6(c). On that date, he was admitted to the Pretrial Intervention Program (PTI). Defendant was subsequently arrested on a unspecified disorderly persons charge and he was terminated from PTI.
On March 7, 2000, Accusation No. A-948-99 was dismissed and defendant was charged under a new Accusation, No. 00-03-0373-A, with fourth-degree possession of a stolen credit card. He pled guilty to this offense on that same date.
Defendant is a citizen of Jamaica and was a "resident green card holder" at the time of the plea. The plea judge did not question defendant on the record concerning his immigration status and did not advise him of the possible deportation consequences of his plea. However, in the certification defendant submitted in support of his petition for PCR, he stated that his attorney advised him that he "could face the possibility of deportation or removal from the United States as [a] consequence of my guilty plea." On April 18, 2000, the judge sentenced defendant to two years probation in accordance with the negotiated plea.*fn1
Defendant thereafter violated his probation. The transcript of this proceeding is not a part of the record on appeal and the details of defendant's violation have not been provided to us by the parties. On March 12, 2002, defendant was sentenced to one year in prison on the violation of probation. This sentence was concurrent to a sentence defendant had received under Bergen County Accusation No. 01-11-2781-A.*fn2
On December 2, 2004, defendant was charged in Bergen County Indictment No. 04-12-2292-I with third-degree assault on a police officer, N.J.S.A. 2C:12-1b(5) (count one); and third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a) (count two). On March 22, 2005, defendant pled guilty to third-degree resisting arrest. As part of the plea colloquy, the judge questioned defendant about his immigration status and advised him "that if you are not a United States citizen or national you may be deported by virtue of your guilty plea[.]" On May 13, 2005, defendant was sentenced to two years probation, conditioned upon 180 days in the county jail. However, the custodial portion of the sentence was suspended. Defendant did not file a direct appeal from any of these convictions and sentences.
In March 2010, after he had been detained for an unspecified period by federal authorities for possible deportation,*fn3 defendant filed a petition for PCR. He asserted that he was never advised by the judge at the time of his plea to the stolen credit card charge that he would be deported as a result of the plea. He did not specifically reference the violation of probation proceeding or his 2005 conviction for resisting arrest.
Defendant's assigned counsel thereafter filed a supplemental brief. In this brief, counsel argued that both of defendant's pleas, to the stolen credit card and resisting arrest charges, were invalid because he was not properly advised of the deportation consequences of his decisions. The violation of probation proceeding was mentioned in the statement of facts section of the brief, but a separate legal argument was not presented concerning it and a transcript of the proceeding was not provided to the PCR judge. Similarly, no challenge was raised as to defendant's conviction and custodial sentence under Accusation No. 01-11-2781-A.
On August 13, 2010, the PCR judge held oral argument and determined an evidentiary hearing was not required. In an oral opinion rendered on that date, the judge denied defendant's petition for PCR.
The judge determined that, even though defendant had not filed his petition within five years of either of his convictions, he would give defendant the "benefit of the doubt" on the question of whether the petition was time-barred under Rule 3:22-12(a)(1). Moving to the merits of defendant's claims, the judge found that defendant had been "advised of the likelihood of him being deported" and that "[t]he crimes he pled guilty to are not clearly . . . aggravated felonies" which would require that he be deported. Thus, the judge concluded that defendant's "counsel only had to advise [defendant] that deportation would be likely or may be a consequence of his guilty plea." As noted, defendant had conceded that this advice was provided to him by his attorney on the stolen credit card charge and the plea judge on the resisting arrest charge provided defendant with similar advice on the record.
Therefore, the judge rejected defendant's argument that his attorneys had been ineffective. This appeal followed.
On appeal, defendant raises the following contentions:
THE PCR COURT BELOW FAILED TO RULE ON CLAIMS MADE BY DEFENDANT IN HIS PRO SE PETITION FOR POST-CONVICTION RELIEF AND THIS MATTER MUST BE REMANDED.
POINT II THE COURT BELOW ERRED BY FAILING TO DETERMINE WHETHER THE RESISTING ARREST CONVICTION, PLUS THE CREDIT CARD CONVICTION, ARE CRIMES OF MORAL TURPITUDE, WHICH ARE MANDATORY DEPORTABLE OFFENSES WHEN TAKEN TOGETHER.
POINT III THE ONE-YEAR SENTENCE ON THE CREDIT CARD OFFENSE MIGHT BE ILLEGAL; DEFENDANT WAS A FIRST OFFENDER OF A FOURTH-DEGREE OFFENSE, AND THE COURT MAY HAVE ERRED BY FAILING TO APPLY THE PRESUMPTION OF NON-IMPRISONMENT.
Our review of the record convinces us that the judge acted properly in denying defendant's petition for PCR.
To establish a deprivation of the Sixth Amendment right to the effective assistance of counsel, a defendant must demonstrate that: (1) counsel's performance "fell below an objective standard of reasonableness," such that he or she "was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hess, 207 N.J. 123, 146 (2011) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984)).
Courts, in reviewing such claims, apply a highly deferential standard by adopting the strong presumption that defense counsel exercised "reasonable professional judgment" and sound strategy in fulfilling his or her responsibilities. Hess, supra, 207 N.J. at 147 (citing Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95). "[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. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant initially argues his PCR counsel was ineffective because she did not advance his contention that he received ineffective assistance of counsel in connection with the VOP proceeding. Defendant asserts that because he "named the attorney who represented him during the violation of probation [(VOP)] hearing in his pro se petition, thereby alleging that VOP counsel ineffectively represented him[,]" his attorney was required to present this argument to the PCR judge. This argument lacks merit.
Regarding a claim that PCR counsel was ineffective, the Supreme Court has stated:
PCR counsel must communicate with the client, investigate the claims urged by the client, and determine whether there are additional claims that should be brought forward. Thereafter, counsel should advance all of the legitimate arguments that the record will support. If after investigation counsel can formulate no fair legal argument in support of a particular claim raised by defendant, no argument need be made on that point. Stated differently, the brief must advance the arguments that can be made in support of the petition and include defendant's remaining claims, either by listing them or incorporating them by reference so that the judge may consider them. [State v. Webster, 187 N.J. 254, 257 (2006).]
"The remedy for counsel's failure to meet the[se] requirements . . . is a new PCR proceeding." State v. Hicks, 411 N.J. Super. 370, 376 (App. Div. 2010) (citing State v. Rue, 175 N.J. 1, 4 (2002)). "This relief is not predicated upon a finding of ineffective assistance of counsel under the relevant constitutional standard. Rule 3:22-6(d) imposes an independent standard of professional conduct upon an attorney representing a defendant in a PCR proceeding." Hicks, supra, 411 N.J. Super. at 376.
Contrary to his current assertion, defendant's certification in support of his petition for PCR cannot fairly be read to include a challenge to the outcome of the VOP proceeding. The passage upon which defendant relies states:
 On March 18, 1999, I was arrested on possession of a stolen credit card 4th degree.  I retained the services of Mark Musella, Esq. to represent me.  On March 07, 2000, I entered a guilty plea to [N.J.S.A.] 2C:21-6(c) [w]ith the expectation that I would receive a sentence of 1 year state prison.
Defendant argues that the attorney mentioned in the certification was the attorney who represented him at the VOP proceeding, not the attorney who represented him on the stolen credit card charge.*fn4 Therefore, he contends this meant that he wanted his PCR counsel to also challenge the outcome of the VOP proceeding. We disagree.
Read in context, it is clear that defendant merely misstated the name of the attorney he worked with on the credit card charge. Defendant specifically referred to the dates of his arrest and sentence on that charge. His certification contains no reference whatsoever to the VOP proceeding. Defendant also raised no complaint about that proceeding in his certification. His arguments were limited to his claim he was not advised of the deportation consequences of his plea on the credit card charge.
Even now, defendant has not identified any argument that he believes his PCR counsel should have raised concerning the VOP proceeding. In his appellate brief, defendant concedes he has not reviewed the transcript or any other documents related to that proceeding and "it is unknown whether the VOP sentence resulted from a plea or from a hearing to determine guilt." He further states that "[i]t is unclear" whether he could argue that he was not informed of the possible deportation consequences of a VOP. Defendant also speculates that he might be able to argue that his attorney failed "to present mitigating factors, present character witnesses, or other arguments that would have reduced [his] sentence."
In short, defendant offers nothing more than the "bald assertions" that we have consistently held are insufficient to establish a prima facie case of ineffective assistance of counsel. Cummings, supra, 321 N.J. Super. at 170-71. Under these circumstances, defendant's PCR counsel cannot be faulted for not contesting the outcome of the VOP proceeding and defendant's contention on this point must be rejected.
Defendant next argues that the PCR judge erred in finding that he was properly advised of the deportation consequences of his guilty pleas to the stolen credit card and resisting arrest charges. Defendant's argument rests primarily on the United States Supreme Court's decision in Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), which held that an attorney's failure to inform a client about the deportation risks of pleading guilty to a criminal charge runs afoul of the Sixth Amendment right to counsel. However, our Supreme Court recently held that this rule is not entitled to retroactive application. State v. Gaitan, 209 N.J. 339, 371-72 (2012). Defendant entered his guilty pleas and was sentenced prior to Padilla. Thus, he cannot rely on Padilla to support his petition for PCR.
Defendant also cites State v. Nunez-Valdez, 200 N.J. 129 (2009) to support his argument. However, we agree with the PCR judge that defendant failed to demonstrate that either of his plea attorneys provided him with affirmative misinformation regarding the potential immigration consequences of pleading guilty. Thus, Nunez-Valdez is inapplicable as well. Gaitan, supra, 209 N.J. at 374.
Although the judge who took the plea and sentenced defendant on the stolen credit card charge did not advise him of the possible deportation consequences of his plea on the record, defendant conceded in his certification in support of his PCR petition that his attorney advised him he "could face the possibility of deportation or removal from the United States as [a] consequence of my guilty plea." The judge who accepted defendant's guilty plea on the resisting arrest charge similarly advised him "that if you are not a United States citizen or national you may be deported by virtue of your guilty plea[.]" Because defendant has failed to establish that either of these offenses mandated deportation, this advice was more than sufficient to put defendant on notice of the possible consequences of his pleas. Ibid.
Finally, defendant argues that the one-year sentence imposed after he violated his probation on the stolen credit card charge "might be illegal" because he believes he was entitled to a presumption of non-incarceration for a fourth-degree offense. Defendant failed to raise this argument before the PCR judge and, therefore, we decline to consider it here. State v. Robinson, 200 N.J. 1, 19 (2009). Defendant's challenge to the legality of his sentence must proceed through a motion before the trial court pursuant to Rule 3:21-10(b)(5).