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State v. Powell

Superior Court of New Jersey, Appellate Division

May 24, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
HERBERT POWELL, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 7, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 98-07-0718.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Danie lA. Matos, Assistant Prosecutor, of counsel and on the brief).

Before Judges Fisher and Waugh.

PER CURIAM.

Defendant Herbert Powell appeals the Law Division's June 15, 2011 order denying his petition for post-conviction relief (PCR). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In July 1998, Powell was indicted for fourth-degree forgery, contrary to N.J.S.A. 2C:21-1(a)(3) (count one); third-degree fraudulent use of a credit card, contrary to N.J.S.A. 2C:21-6(h) (count two); and third-degree theft by deception, contrary to N.J.S.A. 2C:20-4 (count three). He entered a guilty plea to the third-degree theft by deception in April 1999, and was subsequently sentenced to a five-year term of probation.

In October 2003, Powell was charged with violation of probation. Following a hearing in November 2003, he was found guilty of the probation violation and sentenced to incarceration for five years. He appealed the sentence and we remanded for articulation of the reasons for imposition of an extended term, pursuant to State v. Natale, 184 N.J. 458, 488 (2005).

Powell filed his PCR petition in July 2010, alleging that he received constitutionally deficient assistance of counsel at the time of the plea because he was not informed of the immigration consequences of the plea. He also sought to withdraw his guilty plea and raised additional issues concerning trial counsel.

Shortly thereafter, Powell was served with a notice of deportation. His eligibility for deportation was premised on two convictions, the one at issue in this appeal and a 1996 conviction for second-degree robbery in the State of New York. Although a lawful permanent resident of the United States for over ...


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