January 17, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KERRON BRATHWAITE, A/K/A KERRON P. BRATHWAITE, AND KERON BRATHWAITE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-00533.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 31, 2012
Before Judges Grall and Koblitz.
Defendant Kerron Brathwaite appeals from the February 8, 2011 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. He was deported to Trinidad and claims that at his plea hearing counsel did not advise him accurately as to the deportation consequences of his guilty plea to various drug crimes. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant pled guilty to two counts of third-degree possession of controlled dangerous substances with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) & (b)(3), stemming from charges in Essex County Indictments Nos. 2009-02-0533 and 2009-02-0534. The State dismissed the remaining counts of these two indictments as well as Essex County Indictment No. 2008-04-1319 and a disorderly persons complaint. Defendant was sentenced to four years' probation on October 26, 2009.
On December 22, 2009, defendant filed a pro se PCR petition in which he alleged that his counsel did not inform him of the immigration consequences of entering a guilty plea and that if he knew that deportation was certain, he would not have entered such a plea. Defendant's PCR counsel filed an amended verified petition, dated April 19, 2010. In it, PCR counsel states that trial counsel misinformed defendant that his guilty plea would not result in his deportation.
Defendant raises the following issues on appeal:
POINT I: THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. DEFENDANT WAS MISINFORMED REGARDING THE IMPACT OF HIS GUILTY PLEA UPON HIS IMMIGRATION STATUS.
B. DEFENDANT IS ENTITLED TO RELIEF UNDER PADILLA v. KENTUCKY, [559 U.S. __,] 130 S. Ct. 1473[,] 176 L. Ed. 2d 284 (2010).
POINT II: THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.
POINT III: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF (NOT RAISED BELOW).
In his pro se supplemental brief, defendant raises the following single point:
TRIAL COUNSEL PROVIDED INCORRECT INFORMATION TO DEFENDANT REGARDING THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA.
Pursuant to the Sixth Amendment of the United States Constitution, a person who is accused of a crime is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed 2d 674, 693 (1984). In order to establish a deprivation of that right, a convicted defendant must satisfy the two-part Strickland test:
The defendant must demonstrate first that counsel's performance was deficient,
i.e., that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. In making that demonstration, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance.
A showing of deficient performance, standing by itself, is insufficient. In addition, a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. If defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful. [State v. Parker, 212 N.J. 269, 279-80 (2012) (internal quotation marks and citations omitted).]
This standard also applies in the context of guilty pleas:
[T]he first half of the Strickland v. Washington test is nothing
more than a restatement of the standard of attorney competence already
set forth in Tollett v. Henderson, [411 U.S. 258, 93 S. Ct. 1602, 36
L. Ed. 2d 235 (1973)], and McMann v. Richardson, [397 U.S. 759, 90 S.
Ct. 1441, 25 L. Ed. 2d 763 (1970)]. The second, or "prejudice,"
requirement, on the other hand, focuses on whether counsel's
constitutionally ineffective performance affected the outcome of the
plea process. In other words, in order to satisfy the "prejudice"
requirement, the defendant must show that there is a reasonable
probability that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial.
[Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985) (emphasis
The standard under State v. Nunez-Valdez, 200 N.J. 129 (2009), governs in this matter because defendant's guilty plea was entered before the decision in Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and the Padilla standard is not retroactive. State v. Gaitan, 209 N.J. 339, 371 (2012), but see United States v. Orocio, 645 F. 3d 630, 641 (3d Cir. 2011) (holding that "because Padilla followed directly from Strickland and long-established professional norms, it is an 'old rule' . . . and is retroactively applicable on collateral review."). For petitioners who challenge the entry of a guilty plea prior to Padilla, the well-settled Nunez-Valdez standard explains that the focus should be "on whether counsel provided affirmative misadvice regarding the immigration consequences of a guilty plea." State v. Santos, 210 N.J. 129, 143 (2012) (emphasis added) (citing Gaitan, supra, 209 N.J. at 373-74). Under Padilla, which does not apply here, defense counsel has an affirmative duty to discuss a clear deportation issue arising from a guilty plea and the advice must be correct. Padilla, supra, 559 U.S. at __, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296.
When entering defendant's guilty plea, the judge established through questioning defendant that he could read, write and understand English. The judge also established that defendant received his high school diploma; did not have trouble reading the plea form; read each question; was explained each question by his attorney; and understood each question. The judge specifically addressed the deportation issue. The following exchange between the judge and defendant took place after defendant had been placed under oath:
The Court: (Pause). I see that you reported that  you are not a citizen of the United States. Am I correct?
Defendant: Yes, Your Honor.
The Court: And that you make a comment here that you have some
citizenship application pending or someone in your family does?
Defendant: Yes, my wife.
The Court: Your wife does.
Defendant's Counsel: No, Your Honor, . . . he is married to his wife who is a U.S. citizen and I believe that is the basis of the application.
The Court: So, you're not a citizen, but your wife is a citizen.
Defendant: -- Yes, Your Honor.
The Court: -- Is that correct? And you understand that these offenses are offenses that are listed as offenses that would result in someone being deported. Do you understand?
Defendant: Yes, Your Honor.
The Court: And you know that you face that in this case.
Defendant: Yes, Your Honor.
The Court: Knowing that, do you continue with your willingness to plead guilty? Defendant: Yes, Your Honor.
The Court: Do you want to speak to a deport -- an immigration lawyer about the chances for deportation before you plead guilty? Defendant: No, Your Honor.
The Court: You're satisfied to proceed at this time.
Defendant: Yes, Your Honor.
Thus, the judge himself specifically informed defendant that he was pleading guilty to charges that would result in deportation. The same judge who presided over the guilty plea and sentencing heard defendant's PCR petition. Defendant argues that the judge should have conducted an evidentiary hearing to determine whether or not defendant's plea counsel misinformed him as to the deportation consequences of his guilty plea to two drug crimes, which made him "deportable." 8 U.S.C.A. § 1227(a)(2)(B)(i) (providing "[a]ny alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance . . ., other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.")
The judge's clear explanation to defendant before he pled guilty, that he would be deported as a result of entering his guilty plea, negates any claim that even if defendant's counsel had misinformed him as to the deportation consequences of his guilty plea, that misinformation prejudiced his defense. Thus, defendant does not satisfy the second prong of the Strickland test.
"[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington . . . ." Id. at 463. A defendant, however, "must do more than make bald assertions that he was denied effective assistance of counsel. He must allege [specific] 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 argues that because he did not verify PCR counsel's amended petition, he did not have effective assistance of counsel. R. 3:22-8. He also argues that the matter should be remanded because PCR counsel failed to obtain an affidavit from trial counsel addressing the advice she provided defendant.
Defendant does not argue that any information contained in the amended petition was inaccurate. Similarly, he cites no support for his argument that his PCR counsel is required to submit an affidavit from defendant's trial counsel.
Additionally, defendant's claim that PCR counsel was ineffective is without merit. R. 2:11-3(e)(2).
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