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State v. Salem

Superior Court of New Jersey, Appellate Division

July 29, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
WASSEM SALEM a/k/a WESSAM SALEM, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 4, 2013

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 03-08-1460, 04-10-1732, 06-04-0696, 07-07-1171.

Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

Before Judges Fisher and Alvarez.

PER CURIAM

Defendant Wassem M. Salem a/k/a Wessam Salem appeals the January 6, 2011, Law Division order denying his petition for post-conviction relief (PCR). We affirm.

Defendant entered a guilty plea on November 6, 2003, to third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). Prior to the plea colloquy, defendant completed the plea form promulgated by the Administrative Office of the Courts. Question 17 on the form reads as follows: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your guilty plea?" In response, defendant answered "N/A, " in other words, not applicable.

When the court asked counsel about defendant's status, his attorney responded that defendant had lived in this country for twelve years, residing continuously in Hudson County, and that he was an American citizen. Defendant remained silent when his attorney made this representation. He was thereafter sentenced to a probationary term in accordance with the agreement.

On January 3, 2005, defendant entered a guilty plea to fourth-degree child abuse, N.J.S.A. 9:6-1 and 9:6-3. Defendant again responded with "N/A" to question 17 on the plea form. When defendant was directly asked by the court if he was "a citizen of the United States, " he responded in the affirmative.

Thereafter, on July 16, 2007, defendant entered a guilty plea to third-degree eluding, N.J.S.A. 2C:29-2(b), and third-degree aggravated assault on a corrections officer, N.J.S.A. 2C:12-1(b)(5)(b).[1] On this occasion, defendant answered plea form question 17 with the word "yes." No inquiry was conducted by the trial judge regarding his deportation status, nor did his attorney address the issue on the record. On February 28, 2008, defendant was sentenced to concurrent terms of five years in state prison.

Defendant's initial petition for PCR was filed on July 1, 2009. It was subsequently dismissed because the Law Division judge was under the mistaken impression that defendant had already been deported to Egypt. Although defendant was eventually deported, the public defender's office resumed responsibility for defendant's representation, and filed a new PCR petition and brief in support thereof. A telephone conference was conducted on October 28, 2010 between the court and counsel. The conference was neither recorded nor transcribed, and no subsequent proceedings, such as oral argument, appear to have occurred. On January 6, 2011, the Law Division judge issued the written decision denying the petition from which defendant appeals.

First, we are troubled by the failure of the court to schedule oral argument. To render a decision in the absence of oral argument does not appear to comply with either the relevant court rules or due process. We specifically disapprove of this method of addressing PCR applications while affirming the outcome on the merits.

Defendant raises the following points for our consideration on appeal:

POINT I
DEFENDANT WAS DEPRIVED OF HIS FEDERAL AND STATE RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
POINT II
DEFENDANT'S GUILTY PLEAS WERE NOT VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY ENTERED, BECAUSE THEY WERE ENTERED WITHOUT DEFENDANT BEING INFORMED BY THE COURT THAT DEPORTATION WAS AN INEVITABLE CONSEQUENCE; THE ACCEPTANCE AND ENTRY OF THE PLEAS THUS VIOLATED OUR COURT RULES AND DEFENDANT'S RIGHT TO TRIAL BY JURY, DUE PROCESS AND FUNDAMENTAL FAIRNESS
POINT III
THE REPRESENTATION BY PCR COUNSEL CONSTITUTED A "COMPLETE DENIAL OF COUNSEL"
POINT IV
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS POST-CONVICTION RELIEF CLAIMS
POINT V
NO PROCEDURAL BARS TO POST-CONVICTION RELIEF PRECLUDED RELIEF FOR DEFENDANT

I

A defendant must establish two elements to prove ineffective assistance of counsel: first, that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). An attorney's performance is deficient when he or she makes "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must demonstrate that counsel's deficiency so prejudiced the defense that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id . at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A reasonable probability is one that undermines confidence in the outcome. Ibid. New Jersey has adopted the Strickland test. See State v. Fritz , 105 N.J. 42, 58 (1987).

There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]" Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. To rebut this presumption, a defendant must prove counsel's actions did not amount to "'sound trial strategy.'" Id . at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 695 (quoti ng Michel v. Louisiana , 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83, 93 (1955)). "[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 3 21 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

"[W]hen counsel provides false or affirmatively misleading advice about the deportation consequences of a guilty plea, and the defendant demonstrates that he would not have pled guilty if he had been provided with accurate information, an ineffective assistance of counsel claim has been established." State v. Gaita n, 209 N.J. 339, 351 (2012) (citing State v. Nunez-Valdez, 200 N.J. 129, 131 (2009)), cert. denied, U.S., 133 S.Ct. 1454, 185 L.Ed.2d 361 (2013). But it was not until 2010 that a defendant had to be affirmatively informed that he faced a certainty of deportation as a result of the entry of a guilty plea. Chaidez v. United States, U.S., 133 S.Ct. 1103, 1113, 185 L.Ed.2d 149, 162 (2013); Guitan, supra, 209 N.J. at 380. Prior to that time counsel's obligation was only to avoid affirmatively misinforming a defendant regarding immigration consequences resulting from a plea. Chaidez, supra, U.S. at, 133 S.Ct. at 1113, 185 L.Ed.2d at 162.

II

Unfortunately for defendant, he himself made the issue of ineffective assistance of counsel moot. As the PCR judge reasoned, after failing to disclose to his own attorney or the court when his first two guilty pleas were entered in 2003 and 2005 that he was not a citizen of the United States, he cannot now complain about the advice he received. His attorney in one case told the court he was a citizen, and in the other case defendant directly told the court that he was a citizen. And the charges to which he entered guilty pleas were both deportable offenses. See 8 U.S.C.A. § 1227(a)(2).

It is absolutely reasonable for an attorney to assume that his or her client is being truthful about citizenship. It would be unreasonable to impose an obligation on counsel to independently investigate the assertion. It was simply not ineffective assistance for defendant's counsel to take him at his word when he entered guilty pleas to two separate offenses which made him eligible for deportation. Therefore defendant has failed to meet the Strickland test.

Once having satisfied the criteria for deportation while failing to establish that it resulted from ineffective assistance of counsel, defendant's two other points on appeal become irrelevant. Hence we do not address his arguments further. See R. 2:11-3(e)(2).

Affirmed.


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