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State of New Jersey v. Gregory Maitland

January 7, 2013

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GREGORY MAITLAND, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-12-2292.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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