NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...