NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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