August 12, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
KEVIN A. WILLIAMS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 18, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 07-12-0426.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).
Anthony P., Kearns, III, Hunterdon County Prosecutor (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fasciale and Maven.
Defendant Kevin Williams appeals a March 11, 2011 Law Division order denying him post-conviction relief (PCR). We affirm.
On June 29, 2007, defendant was arrested and subsequently indicted for third-degree possession of a controlled dangerous substance (CDS) (cocaine), N.J.S.A. 2C:35-10(a)(1) (count one), and second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count two). On July 10, 2008, defendant appeared in court on a motion to suppress the evidence seized following an allegedly illegal search. After the motion was denied, defendant pled guilty to count two. Defendant was sentenced to a five-year custodial term.
Defendant did not appeal; however, he filed a timely pro se PCR petition alleging ineffective assistance of counsel for failing to advise him of the immigration consequences of his guilty plea and for failing to investigate defendant's history of mental illness. Assigned counsel filed a supplemental brief.
At oral argument, PCR counsel argued convincingly for an evidentiary hearing to enable the judge to hear testimony from the prior counsel on any discussions he purportedly had with defendant regarding immigration consequences facing defendant. PCR counsel also argued that counsel failed to investigate defendant's history of psychiatric treatment as a possible defense.
An evidentiary hearing was held on March 7, 2011, before the Honorable Stephen B. Rubin, J.S.C. The facts as adduced at the hearing are as follows. The judge heard testimony from defendant's prior counsel and defendant. Counsel testified that he met with defendant ten to twelve times before the suppression motion and plea hearings. Some of the meetings were attended by his mother and sister or a family friend, and some were solely with defendant. Counsel was aware of the immigration issues and discussed negotiation and trial strategies with defendant. Counsel also discussed with defendant that there would be little success of winning a jury trial given the significant amount of CDS found on his body, and they decided to file the suppression motion. He advised defendant to talk to an immigration attorney or specialist and informed defendant that if he pled guilty to possession with intent to distribute, deportation would be required. Counsel testified further that his conversations with defendant were in English and he had no reason to believe that defendant did not understand their discussions. Counsel presented copies of letters he wrote to the assistant prosecutor, and the sentencing memorandum submitted to the court, both of which referenced the immigration issues and the negotiated stipulation that the State would not oppose defendant's application into the Intensive Supervision Program (ISP).
Defendant testified that counsel never discussed immigration with him, and he first became aware of an immigration issue while being processed at the prison. In regards to his plea, defendant remembered pleading guilty, but had no recollection of the judge questioning him on the voluntariness of his plea.
On the same date, the PCR judge rendered an oral decision addressing the immigration issue. The judge deemed defendant not credible primarily due to defendant's poor recollection of the events and the judge's difficulties believing his testimony. The PCR judge found that plea counsel had discussed immigration consequences with defendant and properly informed him of the potential ramifications before defendant pled guilty. This appeal followed.
On appeal, defendant raises the following claims:
I. DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO [PCR].
A. Counsel Was Ineffective For Misadvising Defendant of the Deportation Consequences of His Guilty Plea.
B. Trial Counsel Was Ineffective For Fail[ing] to Put Forth a Defense of Diminished Capacity.
C. Trial Counsel Was Ineffective For Failure to Retain a Psychiatrist; Mental Capacity.
We are not persuaded by these arguments.
We begin by addressing defendant's claims that he received ineffective assistance of counsel at his plea hearing because he was never properly informed that he would be deported as a consequence of his guilty plea. The State contends that defense counsel properly performed his duties and there is nothing in the record to indicate that defendant was not aware of the deportation consequences.
The general standards by which a defendant must prove ineffective assistance of counsel derive from a two-prong standard espoused in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). See State v. Fritz, 105 N.J. 42, 67 (1987) (adopting the Strickland standard in New Jersey). The United States Supreme Court has extended these principles to the representation provided by a criminal defense attorney to an accused 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).
Viewing the facts most favorably to defendant, State v. Preciose, 129 N.J. 451, 462-63 (1992), and therefore assuming defendant's plea hearing statements to be true, we conclude that the factual allegations are insufficient to satisfy the first prong of the Strickland standard. The petitioner must first show that counsel's performance was deficient as measured by an objective standard of reasonableness, taking into account "prevailing professional norms." Strickland, supra, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. To do so, PCR counsel relies on the rules of attorney conduct established in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 175 L.Ed.2d 284 (2010), and State v. Nuñez-Valdéz, 200 N.J. 129 (2009), requiring that defense counsel render advice that is neither misleading nor incorrect.
Upon a careful review of the case law prior to Padilla and its progeny, we conclude that defendant's claims have no merit. We begin by briefly reciting the development of the law pertaining to counsel's obligation to render effective assistance of counsel to non-citizens.
In Nuñez-Valdéz, supra, 200 N.J. at 143, our Supreme Court held that a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from "inaccurate information from counsel concerning the deportation consequences of his plea." The Court focused on "false or misleading information" from counsel as establishing the violation of the defendant's constitutional rights. Id. at 138.
Later, in Padilla, supra, 559 U.S. at ___, 130 S.Ct. at 1486, 176 L.Ed.2d at 299, the United States Supreme Court held that an attorney's failure to advise a non-citizen client about the immigration risks attendant on pleading guilty constituted ineffective assistance of counsel. By extending counsel's duty beyond rendering incorrect advice, the Court declared that counsel has an affirmative duty to inform a defendant when a guilty plea will result in deportation, at least where the relevant law pertaining to mandatory deportation is "succinct, clear, and explicit." Id. at ___, 130 S.Ct. at 1483, 176 L.Ed.2d at 295; see State v. Brewster, 429 N.J.Super. 387, 397 (App. Div. 2013).
The record reflects that counsel advised defendant as to the immigration consequences of his charges and plea. Contrary to defendant's assertions that he was unaware of any immigration issues, the record establishes that counsel met many times with his defendant and discussed immigration matters, that counsel communicated with the assistant prosecutor to negotiate for a more beneficial outcome for defendant, and advocated for defendant in the sentencing memorandum. Based upon his plea form responses and the exchange with the judge confirming his understanding of the form at the plea hearing, the PCR judge found that defendant was aware of possible immigration and deportation consequences.
As the PCR judge reasonably concluded there was no misrepresentation by defense counsel who acted in accordance with the law and his fiduciary duty towards defendant. Plea counsel informing defendant that his guilty plea to possession with intent to distribute would require deportation was not incorrect advice. As such, counsel's conduct was not unreasonable or outside the professional norms, Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695, and defendant's claim of ineffective assistance cannot be supported on these facts.
Even if the advice provided was deemed ineffective, the second Strickland prong requires that a defendant demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 556 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). Here, defendant has not demonstrated that he was prejudiced or that the outcome would have been any different had counsel advised him accordingly. Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. Had the case proceeded to trial, the evidence against defendant was compelling. As noted, defendant was apprehended in possession of a significant quantity of CDS. Neither the suppression hearing proceeding nor the admissibility of the evidence was challenged on appeal. It is highly unlikely that defendant would have succeeded at trial on either charge.
Defendant next argues that counsel failed to put forth a diminished capacity defense. This issue was raised summarily in defendant's pro se petition, but not addressed in PCR counsel's brief. For the first time at oral argument, counsel mentioned that defendant had a potential psychiatric defense based on certain records he reviewed. At oral argument, the judge noted:
Insofar as the mental situation is concerned, that really hasn't been briefed by either party, so I would say that that particular issue would await the outcome of an evidentiary hearing. If I determine at the hearing that [defendant] was fully informed and knew that by pleading guilty that he would be subject to deportation, I think that pretty much puts the case to rest.
On the other hand, if I determine that he didn't know and I allow [defendant] to retract his plea, then he can start from scratch and he can assert whatever he wants to assert. I don't know where he is necessarily going with this mental defense on the charge of possession or possession with intent to distribute. I don't know that he's going to be able to get too far with that kind of a strategy . . . so I'll leave that open.
Defendant now claims that his counsel was ineffective by failing to properly investigate evidence of defendant's paranoid schizophrenia and his failure to remain properly medicated. Defendant contends that his prior counsel was aware that he suffered from a form of mental illness. Plea counsel had advised the sentencing judge that although defendant was taking Risperdal at the time of the arrest, he was not asserting defendant was incompetent or that there was a "psychiatric defense."
We reject this contention as the matter was neither briefed in support of the PCR petition nor addressed by the trial court. An issue not briefed is ordinarily waived. See Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2013) ("It is, of course, clear that an issue not briefed is deemed waived."); see, e.g., In re Bloomingdale Convalescent Ctr., 233 N.J.Super. 46, 49 n.1 (App. Div. 1989) (refusing to decide an issue raised for the first time during oral argument).
From our review of the scant record on this issue, we deem that defendant's argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
"[I]n order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.) (emphasis omitted), certif. denied, 162 N.J. 199 (1999). "A defendant must demonstrate a prima facie case for relief before an evidentiary hearing is required, and the court is not obligated to conduct an evidentiary hearing to allow defendant to establish a prima facie case not contained within the allegations in his PCR petition." State v. Bringhurst, 401 N.J.Super. 421, 436-37 (App. Div. 2008); see also R. 3:22-10(e)(3). Moreover, Rule 3:22-10(c) provides that "[a]ny factual assertion that provides the predicate for a claim of relief must be made by an affidavit or certification pursuant to Rule 1:4-4 and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing." It remains within the court's discretion whether such a hearing is necessary. Preciose, supra, 129 N.J. at 462 (1992).
Here, defendant failed to establish a prima facie case of ineffective assistance of counsel. His claims regarding the possible diminished capacity defense are bald, unsubstantiated assertions. His psychiatrist indicated that he never interviewed defendant and, therefore, could not render opinions to a reasonable degree of medical probability. Absent any affidavit or certification to the contrary from defendant, this claim of attorney ineffectiveness has no basis in the record Thus the contention is without merit and rejected.