June 24, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
SHERIN MAKAR, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 12, 2013
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 06-07-0563 and 06-08-0631.
Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the briefs).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
Before Judges Ostrer and Kennedy.
Defendant Sherin G. Makar appeals from the trial court's February 14, 2011, order denying, without an evidentiary hearing, his petition for post-conviction relief (PCR) from two judgments of conviction. Defendant argues his plea attorney provided ineffective assistance of counsel with respect to his immigration status. Having considered defendant's arguments in light of the facts and applicable law, we affirm.
Defendant is a non-citizen from Egypt. Born in 1962, he entered the United States in August 1985, married here in 1991 and has two children. He became a permanent resident in 1993. In May 2007, defendant pleaded guilty to third-degree burglary, N.J.S.A. 2C:18-2, and fourth-degree criminal mischief, N.J.S.A. 2C:17-3, as charged in one Somerset County indictment. He pleaded guilty to two additional counts of third-degree burglary, two counts of criminal mischief, and one count of third-degree theft, N.J.S.A. 2C:20-3, as charged in another Somerset indictment. Judge Paul W. Armstrong sentenced defendant to an aggregate term of five years in prison, with two years of parole ineligibility, after accounting for concurrent sentences. The sentences were also to be served concurrently with a ten-year flat sentence recently imposed in Morris County, and another sentence imposed in Bergen County.
In defendant's written plea agreement, entered May 2, 2007, the "yes" answer was circled in response to question seventeen, which asked, "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" Judge Armstrong did not explicitly address defendant's immigration status. However, he elicited from defendant during his plea hearing that he understood all of the questions on the form, and had the opportunity to discuss each question with his attorney.
At sentencing, no one directly addressed the impact of defendant's convictions on his immigration status. Defendant mentioned he came to the United States in 1985. He claimed that he had worked hard, but after he bought a business that later failed, he turned to drugs and alcohol and then burglaries. However, as Judge Armstrong noted in reviewing defendant's criminal history, defendant's criminal history actually began in 1999, when he was convicted in New York of criminal sexual contact and was sentenced to three years of probation. He committed a first burglary in Bergen County, for which he received probation in January 2004. He then reoffended in Bergen, Morris and Somerset counties.
In his sworn pro se application for PCR, dated April 23, 2010, defendant alleged his attorney was ineffective. He asserted his attorney did not review the plea agreement "line by line" and "did not even explain [to] me any of its contents, and just advised me to sign this agreement. The agreement was already prepared; every answer was circled, so I signed it."
Defendant variously alleged (1) his attorney "never mentioned [to] me the collateral damages upon accepting the plea bargain regarding the [i]mmigration consequences"; (2) "counsels [sic] said that I may get deported"; (3) "his lawyer had inadequately informed him that he would not be deported, if he pled guilty"; and (4) his attorney "mentioned [to him] that he were [sic] completely unaware about the immigration consequences. They did not talk about that issue[.]" Defendant alleged that but for counsel's errors, the result of the proceeding would have been different, but he did not expressly allege that he would not have pleaded guilty had he known that he faced deportation.
In an amended verified petition, prepared with the assistance of counsel, defendant reiterated that "[t]rial [c]ounsel was ineffective for failing to advise the [p]etitioner regarding the [i]mmigration consequences of his guilty plea." As a result, he alleged his plea was not made knowingly and voluntarily.
After hearing argument on January 20, 2011, Judge Robert B. Reed denied the petition in an oral decision. Judge Reed applied the two-prong test for establishing ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2D 674, 693, 698 (1984), which requires a showing that (1) his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different. Judge Reed distinguished State v. Nunez-Valdez, 200 N.J. 129 (2009), where our Court held that affirmatively misinforming a defendant about the immigration consequences of a plea may constitute ineffective assistance. The judge concluded that defendant had not demonstrated he was misinformed or misled. At most defendant alleged a failure to inform. Furthermore, the court was convinced defendant was aware of the possibility of deportation, given his affirmative answer to question seventeen.
This appeal followed. Defendant presents the following issues for our consideration:
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. Even if the Court Were to Find that the Post-Conviction Relief Court's Finding That Defendant Failed to Allege That Trial Counsel Misinformed him is Supported by the Record, Defendant is Entitled to Relief Under Padilla.
THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF (NOT RAISED BELOW).
We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed.2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421.
As noted, to establish a prima facie claim of ineffective assistance of counsel, a petitioner must satisfy the two-prong test under Strickland, supra, 466 U.S. at 687, 694, 104 S.Ct. at 2064, 2068, 80 L.Ed.2d at 693, 698. A petitioner is obliged to establish the right to relief by a preponderance of the credible evidence. State v. Preciose, 129 N.J. 451, 459 (1992). The court must consider the petitioner's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
A hearing should be held if the PCR petition involves material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J.Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). On the other hand, a court need not hold a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed.2d 88 (1997). "[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J.Super. at 170.
Turning to the specific claim here, a defendant is entitled to effective assistance in the process of plea negotiation. Missouri v. Frye, 566 U.S. ___, ___, 132 S.Ct. 1399, 1405, 182 L.Ed.2d 379, 387 (2012). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S. ___, ___, 132 S.Ct. 1376, 1387, 182 L.Ed.2d 398, 410 (2012). An attorney provides ineffective assistance when he or she affirmatively misinforms a defendant about the consequences of a plea. Frye, supra, 566 U.S. at ___, 132 S.Ct. at 1406, 182 L.Ed.2d at 388 (citing Padilla v. Kentucky, 559 U.S. ___, ___, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284, 299 (2010)).
In particular, an attorney renders ineffective assistance when providing "affirmative misinformation" about the immigration consequences of a plea. State v. Gaitan, 209 N.J. 339, 351-52 (2012), cert. denied, ___U.S. ___, ___, 133 S.Ct. 1454, 185 L.Ed.2d 361 (2013); Nunez-Valdez, supra, 200 N.J. 140-42. Moreover, given the evolving standards of professional conduct, our Court held that prospectively, beginning with the 2010 decision in Padilla, supra, "an attorney must tell a client when removal is mandatory — when consequences are certain[.]" Gaitan, supra, 209 N.J. at 380.
Where a defendant, as a result of attorney ineffectiveness, accepts a guilty plea instead of going to trial, the petitioner may satisfy the prejudice prong by showing "a reasonable probability that, but for counsel's errors, [he or she] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985); see also Gaitan, supra, 209 N.J. at 351 (same). A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
Applying these standards, we affirm the trial court's denial of defendant's petition. Although Judge Reed did not have the benefit of the Court's decision in Gaitan, he correctly drew the distinction between affirmative misinformation, which would have violated the professional standard in effect when defendant pleaded, and the failure to inform a defendant of the near certainty of deportation, which would not.
Defendant's petition fails to establish a prima facie claim of affirmative misinformation. Although defendant claimed his attorney "informed him that he would not be deported" — a claim of affirmative misinformation — he contradicted that very claim by asserting his attorney both said nothing, and said he "may get deported." These contradictory claims fall short of even a bald assertion. See Cummings, supra, 321 N.J.Super. at 170. They cannot suffice to establish a prima facie claim of ineffective assistance, particularly in view of defendant's affirmative answer to question seventeen and his statement under oath in open court that he understood the questions and his answers.
Nor are we persuaded by defendant's claim that his contradictory statements are the fault of his PCR counsel, who allegedly was ineffective by failing to correct them in the amended petition The inconsistent allegations belong to defendant He presented them to the court under oath Contrary to his argument defendant has presented no evidence that he misunderstood his own statements
Finally defendant failed to present a prima facie claim that he suffered prejudice as a result of his attorney's alleged failure to disclose the immigration consequences of his plea Defendant faced indictments in three counties He already had two adult convictions — one for burglary in Bergen County in 2004 and another for criminal sexual contact in New York in 1999 Defendant presented no claim let alone a plausible one that he would have proceeded to go to trial in multiple counties and faced the risk of consecutive sentences particularly inasmuch as he apparently already faced deportation based on his convictions from 1999 and 2004
To the extent we have not addressed any other arguments presented by defendant they lack sufficient merit to warrant discussion in a written opinion R 2:11-3(e)(2)