NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 1, 2013
On appeal from the Superior Court of New Jersey,  Law Division, Bergen County, Indictment No. 90-01-0439.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Simonelli and Accurso.
Defendant Sean Milson appeals from the February 2, 2011 Law Division order, which denied his petition for post-conviction relief (PCR) following an evidentiary hearing. We affirm, but for reasons other than those expressed by the PCR judge. Aquilio v. Continental Ins. Co. of N.J., 310 N.J.Super. 558, 561 (App. Div. 1998).
A grand jury indicted defendant for second-degree possession with intent to distribute a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(2) (count one); third-degree possession of a CDS within 1, 000 feet of a school zone, N.J.S.A. 2C:35-7 (count two); and third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count three). On August 27, 1990, defendant pled guilty to count one in exchange for the State's agreement to recommend that defendant would be sentenced as a third-degree offender to a maximum of four years' imprisonment.
Defendant signed the plea forms and answered "Yes" to Question 17, which asked whether he understood that if he was not a United States citizen or national he may be deported by virtue of his guilty plea. At the plea hearing on August 27, 1990, defendant testified under oath that he was not a United States citizen and he understood that because he pled guilty to a CDS charge, an action could be brought to deport him. Defendant then gave a factual basis for his plea, which he does not challenge on appeal. The trial judge determined that defendant entered the plea voluntarily. On October 26, 1990, the judge sentenced defendant in accordance with the plea agreement to a four-year term of imprisonment. Defendant did not appeal.
Nearly twenty years after sentencing, on April 29, 2010, defendant filed a pro se PCR petition. In defendant's supporting affidavit, he asserted that trial counsel rendered ineffective assistance because counsel "was completely unaware" of and "never mentioned" the mandatory deportation consequences of his plea.
At the evidentiary hearing, defendant testified that trial counsel never told him he definitely would be deported. He then added for the first time that counsel misinformed him that he would not be deported if he received a sentence of less than five years.
Trial counsel testified that in 1990, it was his practice to read each question on the plea form to a client, listen to the client's response, and then circle yes or no on the plea form. If the client said he or she was not a United States citizen, he advised the client that he or she may be deported as a result of pleading guilty to a felony. Counsel denied he advised defendant that he would not be deported if he received a sentence of less than five years because "[t]hat was not the law" in 1990.
The PCR judge found that trial counsel did not misinform defendant about the deportation consequences of his plea, but rather, simply failed to advise him of the mandatory deportation consequences. Thus, the judge concluded, incorrectly, that because Padilla v. Kentucky, 559 U.S. 356, , 130 S.Ct. 1473, 1482, 176 L.Ed.2d 284, 294 (2010) applied retroactively, defendant satisfied the first prong set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). Nevertheless, the judge denied the petition, finding that defendant did not satisfy the second Strickland prong because he ...