On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-09-1643.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 24, 2012 -
Before Judges Simonelli and Koblitz.
Defendant Abbas Elcheikhali appeals from the May 5, 2010 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant, who is not an American citizen, claims that his defense attorney misinformed him that his guilty plea to third-degree theft by deception, N.J.S.A. 2C:20-4 and third-degree issuance of a bad check, N.J.S.A. 2C:21-5,*fn1 would not result in deportation. Because the court judged the credibility of conflicting certifications from defendant and his plea counsel without an evidentiary hearing, we reverse and remand for a hearing.
In 2004 and 2005, defendant engaged in fraudulent activities connected with the sale of a car including identity theft victimizing the car purchaser. On September 28, 2006, defendant was charged in Bergen County Indictment No. 06-09-1643 with two counts of third-degree theft by deception and three counts of third-degree issuing bad checks. Defendant pled guilty to two counts of the indictment as part of a plea agreement that called for him to pay a total of $28,500 in restitution, including $10,000 from his attorney's trust account to be paid within seven weeks. In exchange, the State agreed to recommend a non-custodial probationary term and dismiss the remaining counts of the indictment.
At the time of sentencing on October 5, 2007, defendant had been arrested for federal and state crimes committed prior to the entry of the guilty plea. He had charges pending in Passaic and Essex Counties and was about to be sentenced in federal court. Counsel and the court agreed on the record, but out of the presence of defendant, that in light of this development, a custodial sentence was required and defendant was sentenced to 365 days in New Jersey State Prison and $25,000 in restitution. The sentence was stayed until after the federal imposition of sentence, and the court indicated that it had no objection to running the sentence concurrent to the federal sentence. Defendant raises the following issues on appeal:
POINT I: THE PCR COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF DEFENDANT'S CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR MISINFORMING HIM OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA.
POINT II: THE PCR COURT COMMITTED REVERSIBLE ERROR BY APPLYING A R. 3:22-4 PROCEDURAL BAR TO DEFENDANT'S CLAIM THAT TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY FAILING TO RAISE A DOUBLE JEOPARDY CLAIM.
POINT III: DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY ASSENTING TO A MORE SEVERE SENTENCE THAN PROVIDED FOR IN THE PLEA AGREEMENT. (PARTIALLY RAISED BELOW).
POINT IV: DEFENDANT RE-ASSERTS ALL POINTS RAISED BELOW IN SUPPORT OF HIS PETITION FOR POST-CONVICTION RELIEF.
Our Supreme Court has recently reviewed the Strickland*fn2 standard for ineffective assistance of counsel claims in the PCR context. State v. Parker, 212 N.J. 269 (2012). The Court emphasized that when a defendant brings such a claim, the trial judge assigned to handle [a] defendant's petition views those contentions against a well-settled standard, one that is identical under both the United States Constitution and the New Jersey Constitution.
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 ...