August 8, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
RAVINDER SINGH, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 9, 2013
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-04-0523.
Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, designated counsel, on the brief).
Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General, Acting Assistant Prosecutor, on the brief).
Before Judges Ashrafi and St. John.
Defendant Ravinder Singh appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) after an evidentiary hearing. We affirm.
We briefly summarize the relevant procedural history and the facts based on the record before us.
Defendant was indicted under Indictment No. 09-04-0523 for one first-degree and three second-degree offenses. On June 22, 2009, pursuant to a negotiated plea, defendant pled guilty to two amended charges, third-degree conspiracy to commit burglary and theft, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2, and third-degree burglary, N.J.S.A. 2C:18-2. The State agreed to dismiss the remaining counts against defendant at sentencing and recommended that the sentences be concurrent and not exceed three years imprisonment.
At the plea hearing the judge advised defendant his sentence would not "be more than three years." He was asked by the judge "have any other promises been made to you?" Defendant answered "No, sir." As to the immigration consequences of his plea, the judge asked defendant, "do you understand that if you are not a United States citizen or National, you may be deported by virtue of your guilty plea? Do you understand that?" Defendant responded, "Yes, sir." Defendant and his counsel then had the following colloquy:
COUNSEL: . . . Mr. Singh, you're not, in fact, a citizen. Correct?
MR. SINGH: Yes, sir.
COUNSEL: And you're on a green card?
MR. SINGH: Green card.
COUNSEL: And we adjourned this case the last time so you would have some time to talk to an Attorney relative to your immigration status?
MR. SINGH: Yes, sir.
COUNSEL: And you've done that?
MR. SINGH: Yes, sir.
Additionally, on his plea form, defendant answered "Yes" to the question, "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your guilty plea?" On August 28, 2009, defendant appeared before the sentencing judge and was sentenced to the negotiated three-year term of imprisonment.
Defendant filed a PCR petition on August 16, 2010. An evidentiary hearing was held on March 30, 2011. At the hearing, defendant's plea counsel testified that he
explained to [defendant], as I do with most clients in that setting that a conviction — and this certainly in this particular case, in my opinion was going to likely result in deportation proceedings moving forward. I explained to him briefly about crimes of moral turpitude. And I spoke to him about the potential for him engaging immigration counsel, with regard to the — the matter.
Defendant's plea counsel then explained that the case had been adjourned for a week prior to the plea so that defendant could speak with an immigration attorney.
Defendant also testified at the PCR hearing. He stated that plea counsel informed him that he was facing up to thirty years of incarceration if convicted of the original charges. Defendant asserts that plea counsel advised him that the plea offer was going to result in less than 365 days incarceration, and probably "nine months and a couple of days." Plea counsel advised defendant on two occasions to seek the advice of an immigration attorney. Defendant contends he did meet with an immigration attorney. However, he could not recollect the attorney's name. Defendant did not call that attorney as a witness at the PCR hearing or provide anything evidentiary from that attorney as to the substance of the advice purportedly given. Defendant contends that when he went to his immigration lawyer he informed that attorney that his jail time was going to be less than a year, but he did not tell him that the sentence could be up to three years. Based on this information, defendant contends his immigration attorney informed him that "if I get anything like under a year I will be facing immigration, but I will have a chance to fight my case. But over a year, it's mandatory deportation."
By order dated September 2, 2011, the PCR judge denied defendant's PCR petition. This appeal ensued.
On appeal, defendant raises the following points for our consideration:
THE FAILURE OF TRIAL COUNSEL TO ADVISE DEFENDANT THAT AS A RESULT OF HIS PLEA AGREEMENT HE WOULD BE DEPORTED DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
THE FAILURE OF TRIAL COUNSEL AND THE TRIAL COURT TO EXPLAIN THE IMMIGRATION CONSEQUENCES OF DEFENDANT'S GUILTY PLEA CAUSED DEFENDANT TO LACK KNOWLEDGE AND UNDERSTANDING OF THE PLEA AGREEMENT, RENDERING HIS PLEA DEFECTIVE, BECAUSE HE NEVER KNOWINGLY WAIVED HIS RIGHT TO A JURY TRIAL.
The Sixth Amendment of the United States Constitution assures a person accused of a crime the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the general two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey).
The United States Supreme Court has extended these principles to the representation provided by a criminal defense attorney to a defendant in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S.Ct. 1376, 1384-85, 182 L.Ed.2d. 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S.Ct. 1399, 1407-08, 182 L.Ed.2d. 379, 390 (2012). A defendant must establish with "reasonable probability" that the result in his case would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S.Ct. at 1384, 182 L.Ed.2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698). Hence, in the present context involving a negotiated plea agreement, in order for defendant to obtain relief based on ineffective assistance grounds, he must show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency, there is a reasonable probability that he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203, 208-10 (1985); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed.2d 873 (1996).
Defendant alleges that his plea counsel was ineffective when he failed to communicate with defendant's immigration counsel regarding the effect defendant's sentence would have on his immigration status and when plea counsel failed to inform defendant that he would be subject to mandatory deportation. These alleged failures did not amount to ineffective assistance of counsel under the Sixth Amendment, at the time that defendant's plea was entered in June 2009 and at the time he was sentenced in August 2009. It was not until March 31, 2010, that the United States Supreme Court held in Padilla v. Kentucky, 559 U.S. 356, ___, 130 S.Ct. 1473, 1486, 176 L.Ed.2d 284, 298-99 (2010), that plea counsel's failure to advise a defendant of mandatory deportation consequences from a conviction could represent deficient performance in violation of a defendant's constitutional rights.
The more stringent advice obligations concerning deportation recognized in Padilla do not apply retroactively. See Chaidez v. United States, 568 U.S. ___, ___, 133 S.Ct. 1103, 1105, 185 L.Ed.2d 149, 154 (2013); State v. Gaitan, 209 N.J. 339, 367 (2012), cert. denied, ___U.S. ___, 133 S.Ct. 1454, 185 L.Ed.2d 361 (2013). Defendant cannot seek refuge in the holding of Padilla with respect to his plea counsel's alleged failure to advise him that his deportation would be mandatory.
However defendant's statements concerning the advice given by his unnamed immigration counsel are merely bald assertions. Defendant offered no other evidence concerning the "advice" or whether in fact he ever consulted an immigration attorney. See State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.) (noting that PCR relief requires more than "bald assertions" by a defendant), certif. denied, 162 N.J. 199 (1999).
Even if we were to accept defendant's claim that his plea counsel was ineffective for failing to consult the unnamed immigration attorney, thereby better assessing the deportation consequences of the plea, and assuming that as a result, plea counsel was obligated to advise defendant that he faced mandatory deportation, that claimed error does not automatically entitle defendant to PCR relief. See State v. Nunez-Valdez, 200 N.J. 129, 142-43 (2009) (recognizing that a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from "inaccurate information" from counsel concerning deportation consequences, but still requiring the defendant to show that he was actually prejudiced by that misadvice).
Defendant must separately prove that there was a reasonable probability that he would have rejected the plea offer and taken his chances at a trial. Lafler, supra, 566 U.S. at ___, 132 S.Ct. at 1384, 182 L.Ed.2d at 406-07. The PCR judge determined that defendant could not demonstrate that a decision to reject the plea bargain would have been rational under the circumstances because "he was facing a lot more than what he took in this particular case. So, it's not reasonable to believe that even with [deportation] he would have turned down three flat. They had the confession that they could have presented at trial." At the plea hearing the State, in exchange for agreeing to dismiss the remaining counts against defendant which could have resulted in up to thirty years' incarceration, recommended that the sentences be concurrent and not exceed three years imprisonment. We agree with the PCR judge that, given the ample proof of guilt, defendant failed in his burden of proving that there was a reasonable probability that he would have rejected the plea offer and taken his chances at a trial.
Here, defendant has shown neither that his plea counsel was constitutionally deficient, nor a reasonable probability that if he had received different advice about his deportation consequences, he would have rejected the State's plea offer and gone to trial Because of these patent deficiencies we concur with the PCR judge's decision.