July 12, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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.
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,  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. 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 about the issue of the deportation?
A. No. No Sir.
Defendant testified he returned to his attorney after his arrest on November 29, 2006. Defendant's PCR counsel asked defendant:
Q. When you met with [your lawyer] for the second charge, did you again talk to him about your situation here in the United States and about deportation?
A. I asked him if everything was going to be all right. He said yes, everything was going to be all right. I did.
Q. When you say you asked him if everything would be all right, do you remember if the topic of deportation was specifically discussed, or was it just in general that you were asking whether or not things were going to be all right?
A. Just in general.
Defendant was also asked:
Q. And did you ask him, do you remember, about whether or not there would a problem with deportation?
A. No, I did not ask him, sir. At the time I didn't ask him, sir.
Defendant's plea counsel testified on behalf of the State. Counsel stated that he advised defendant:
I was familiar with INS, or . . . their policy was and essentially it was through my experience that if someone was not in jail, receiving a custodial sentence, they didn't bother. They didn't track them down and deport them. And I think that is evident by what happened here. It didn't happen. Things have changed.
[T]he situation has changed. But back at that time again, although I don't remember exactly what I said to Dwayne, I'm sure it was something to the effect, you know, if you don't go to jail, my experience has been that you are probably not going to get deported. There's no guarantee, because obviously the plea form provides that there is that possibility.
But I probably did tell him that the chances of him being deported were based on my experience. Not real significant, because at that time INS was not just grabbing people who were on probation. They were jumping on people that were in custody.
Counsel also testified he did not recall the court asking him at defendant's sentencing on September 21, 2007, "are there any immigration problems with this case?" and his answering "no." He explained he answered no because he did not interpret the court's question to mean "is there a possibility he'll be deported?" Rather, he understood the question to mean "are there any immigration problems pending against defendant now." Given that counsel was unaware of any immigration issues pending against defendant, he answered no. Counsel's testimony was unmistakable; he advised defendant that he could not guarantee that he would not be deported.
Thereafter, the court issued a written opinion finding trial counsel had misadvised defendant as to the immigration consequences of his plea, but concluded defendant had failed to establish he was prejudiced thereby. The court denied defendant PCR and this appeal follows.
Defendant raises the following arguments on appeal:
DEFENDANT IS ENTITLED TO WITHDRAW HIS GUILTY PLEA AND PROCEED TO TRIAL UNDER STATE V. NUNEZ-VALDEZ, AS HE WAS MATERIALLY MISINFORMED BY COUNSEL CONCERNING DEPORTATION AND WOULD NOT HAVE PLED GUILTY IF HE HAD RECEIVED ACCURATE INFORMATION.
A. Defendant Was Affirmatively Misinformed By Defense Counsel's Statements That Immigration Would Be "No problem."
B. State v. Gaitan Does not Bar Relief In This Case, As Defense Counsel Gave Defendant False Or Misleading Advice, And Not Merely Inadequate Advice.
DEFENDANT RE-ASSERTS ALL POINTS RAISED BELOW IN SUPPORT OF HIS PETITION FOR POST-CONVICTION RELIEF.
We begin our discussion with the relevant standard of review. We are reviewing a decision after an evidentiary hearing and, as such, we must "uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). However, we owe no deference to the trial court's rulings on questions of law. State v. Gandhi, 201 N.J. 161, 176 (2010).
The relevant legal principles guiding our consideration of the issues on appeal are well settled. PCR is "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citations omitted). "A petitioner must establish the right to such relief by a preponderance of the credible evidence."
Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which were adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant must first show that his attorney's performance was deficient. Id. at 52 (quoting
Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693). The evaluation of the reasonableness of an attorney's performance must be made in reference to the time of the attorney's conduct. State v. Gaitan, 209 N.J. 339, 350 (2012) (citation and internal quotation marks omitted). Next, a defendant must show that his attorney's deficient performance prejudiced his defense.
Fritz, supra, 105 N.J. at 52. Even if counsel was ineffective, under the second prong prejudice is not presumed and must be proven by the defendant. Ibid.
In demonstrating that counsel's performance is deficient under the first prong of Strickland, a defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]'"
Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n. 26, 80 L.Ed.2d 657, 668 n.26 (1984).
To justify withdrawing a guilty plea premised on ineffective assistance of counsel, a defendant must satisfy a modified Strickland standard showing "(i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." State v. Nunez-Valez, 200 N.J. 129, 139 (2009) (internal quotation marks omitted).
Additionally, in order to obtain relief under the second prong, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284, 297 (2010).
Applying the foregoing principles, we find defendant has not met his burden under either the performance or prejudice prong of the Strickland test. The record demonstrates defense counsel did not provide inaccurate information to defendant with respect to his eligibility for deportation. While counsel could not recall exactly what he told defendant, he testified that it was his practice in 2005 and 2007 to advise non-citizen clients in connection with Question No. 17 on the plea agreement form that they were subject to deportation but estimated the likelihood of their deportation was not significant if they received a non-custodial sentence. Given plea counsel informed defendant he was subject to deportation as a result of his guilty plea, the fact that he also opined that he believed the likelihood of deportation was not significant because defendant was receiving a non-custodial sentence, does not make the advice provided false or misleading. Indeed, the PCR judge found, "the advice that was given at the time of these pleas in 2005 and 2007 to the effect that federal immigration authorities were then deporting no one who had been placed on probation for drug offenses was certainly and unquestionably factually correct at those times in the past."
Our analysis in State v. Brewster, 429 N.J.Super. 387 (App. Div. 2013) further informs our analysis here. In Brewster, the defendant, a resident alien, was arrested and charged with various narcotic offenses. Id. at 390. Defendant later pled guilty to a charge that allowed him to avoid a mandatory minimum period of incarceration. Id. at 391. At the plea hearing, the judge did not question defendant about the possibility of his deportation. Ibid. Twelve years after his conviction, defendant was arrested on a deportation complaint, based on his conviction in New Jersey. Ibid. He thereafter filed a PCR petition, claiming his attorney had misadvised him as to the deportation consequences of his plea. Ibid. In his petition, defendant argued when he had asked his attorney about the immigration consequences of his guilty plea, his attorney advised "he didn't think there would be any issue with immigration, and that he would talk to the prosecutor." Ibid. at 395.
The trial court denied defendant's PCR petition and defendant appealed. We affirmed finding "unlike in
Nunez-Valdez, supra, 200 N.J. at 141, defense counsel . . . did not assure defendant that he would not be deported. Rather, he . . . stated that he did not think that deportation would be an issue. . . ."
Brewster, supra, at 396. We found "[a]ccurate advice was provided to defendant in 1998 by the court's warning through its plea procedures that defendant 'may' be deported as a result of his conviction." Id. at 397.
As such, we concluded defendant had failed to demonstrate that his attorney's advice amounted to constitutionally deficient representation, holding "considering the attendant circumstances in 1998, counsel's prediction that defendant would not have an immigration issue, in conjunction with the warning [on the plea form] that he may be deported, was not unreasonable advice or outside the norms of the profession." Id. at 397-98.
Like the defendant in Brewster, the defendant here executed the pleas forms with the assistance of his attorney. He concedes counsel went over the questions with him. He does not dispute that Question No. 17 advised that he may be deported as a result of his plea. He contends only that he does not recall the question. However, defendant acknowledged at the plea hearings in 2005 and 2007 that he that he read over the plea agreement form with this attorney prior to his allocution, understood the form, the answers he provided were truthful and he was entering the plea of his own free will. Additionally, he advised the court that no promises, other than what was provided in the plea agreement, were made to him in exchange for his plea. At no time during either the 2005 or 2007 plea hearing did defendant advise the court that his attorney had told him he did not have to worry about the deportation consequences of his plea. Taken together, we do not find the facts of this case demonstrate that defendant was denied effective assistance of counsel.
We also note little is offered to establish Strickland's second prong. Defendant's bare assertion that he would not have entered guilty pleas had he known he would be subject to deportation standing alone does little to demonstrate a reasonable probability that, but for counsel's misinformation, defendant would not have accepted the plea bargain. State v. Cummings, 321 N.J.Super. 154, 169-70 (App. Div.) (holding "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel"), certif. denied, 162 N.J. 199 (1999).
While defendant argues that avoiding deportation was his main concern, the record does not support this claim. Rather, the evidence suggests defendant's principal concern at the time of his pleas was avoidance of lengthy prison terms. Defendant was facing terms of imprisonment ranging between five and ten years, with a mandatory minimum period of parole ineligibility of three years on the 2005 charges and between three to five years on the 2006 charges, with exposure to a mandatory minimum period of parole ineligibility. Defendant concedes he did not even ask his attorney about the possibility of deportation in connection with his 2006 charges. Rather, in an effort to ensure that he would avoid incarceration, defendant entered into a cooperation agreement with the State. The record suggests that defendant was willing to give up a viable suppression motion in 2005 and enter into a cooperation agreement with the State in 2007 in order to avoid incarceration.
Overall, this record lacks credible evidence "there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different" and defendant would not have pled guilty and would have insisted on going to trial.
Strickland, supra, 446 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
Finally, the record reveals that defendant's deportation may not have been caused by his 2006 and 2007 criminal convictions. Defendant testified he entered the country in either 1999 or 2000 on a ten-year entertainer's visa, which required that he leave the country every six months, and then reenter. Defendant admitted at the PCR hearing that he had not left the United Stated since 2004, thus violating the terms of his visa.
As of the date of the PCR hearing, defendant had not received a response from immigration on his green card application. Further, at the time of the hearing, there was no detainer on defendant nor had he received notice from immigration or any other agency that he was subject to deportation based on his 2006 and 2007 convictions No one had asked defendant to leave the country.
The only information we have regarding defendant's immigration status and his pleas of guilty are defendant's version of what was allegedly said to him by some unnamed immigration employee The absence of any enforcement effort by immigration authorities from 20 06 to sometime in 2010 or 2011 despite knowing about defendant's convictions without more undermines this Court finding any causal connection between the two.
We conclude defendant's proofs are insufficient to establish ineffective assistance of counsel under Strickland Accordingly the order denying defendant's petition for PCR is affirmed.