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State v. Donaldson

Superior Court of New Jersey, Appellate Division

July 12, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
DWAYNE R. DONALDSON, a/k/a RAYNOR DONALDSON, RAYNOR DWAYNE DONALDSON, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2013.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Accusation No. 05-11-2512 and Accusation No. 07-05-1197.

Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Ian D. Brater, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Before Judges Ostrer and Mantineo.

PER CURIAM.

Defendant Dwayne Raynor Donaldson appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) following an evidentiary hearing. Defendant argues his trial attorney was ineffective by misinforming him about the immigration consequences of his pleas. We reject defendant's argument and affirm.

I.

We discern the following facts from the record. Defendant was born and raised in Jamaica and entered the United States in either 1999 or 2000 on a ten-year entertainer's visa. Defendant was arrested on September 16, 2005, and charged with fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3); third-degree possession with intent to distribute, N.J.S.A. 2C:35-5b(11); and second-degree possession with intent to distribute within 500 feet of a Public Property, [1] N.J.S.A. 2C:35-7.1. He waived his right to indictment, did not pursue a viable suppression motion and pursuant to a negotiated plea agreement, pled guilty on November 28, 2005, to fourth-degree possession of marijuana. Defendant was sentenced on February 22, 2006, to a one-year period of probation, together with fines and other mandatory penalties.

Defendant was arrested again on November 29, 2006, and charged with fourth-degree possession of marijuana, N.J.S.A. 2C: 35-10a(3), and third-degree possession with intent to distribute, N.J.S.A. 2C:35-5b(11). On May 21, 2007, defendant waived his right to indictment and pled guilty to third-degree possession of CDS with intent to distribute.[2] Defendant was then sentenced on September 21, 2007, to a one-year period of probation, together with applicable fines and penalties.

Defendant successfully completed both terms of probation and did not appeal either conviction.

Defendant married a United States citizen in October of 2006 and thereafter made an application for a green card. Defendant testified that when he went to immigration for an interview sometime in 2009 he was informed that he had charges on his record that he had to get reduced.

Defendant filed a timely PCR petition seeking to vacate his 2006 and 2007 convictions. Defendant argued his guilty pleas were not voluntarily entered as a result of his attorney's misinformation regarding the consequences a conviction would have on his immigration status.

Defendant was granted an evidentiary hearing at which his plea counsel and he testified. At his hearing, defendant testified he met with his attorney three times prior to entering his 2005 guilty plea. Defendant stated he told his attorney he "cannot afford to [be] deported" and the lawyer told him "don't worry about it." In response to his PCR attorney's question, defendant replied:

Q. Other than your lawyer telling you don't worry about it, do you know or do you remember having any more discussions ...

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