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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...