NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 11, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-04-1198.
Joseph E. Krakora, Public Defender, attorney for appellant (Thomas H.E. Hallett, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Parrillo and Messano.
Defendant John Datus appeals from the denial of his petition for post-conviction relief (PCR) following an evidentiary hearing. The record reveals that, on May 12, 2003, defendant pled guilty to count three of Essex County Indictment No. 03-04-1198, charging him with third-degree possession of marijuana with intent to distribute within 1000 feet of school property. N.J.S.A. 2C:35-7. The State agreed to recommend a sentence of three years imprisonment, with an eighteen-month period of parole ineligibility, and dismissal of the remaining counts of the indictment. On June 27, 2003, defendant was sentenced in accordance with the plea agreement, and the sentence imposed was to run concurrent with other sentences defendant was already serving on other charges.
While in custody, the Immigration and Naturalization Service served defendant with a notice of pending removal. Those proceedings in the immigration court ultimately resulted in an order that defendant be removed to his country of birth, Haiti. Subsequent proceedings in the federal courts resulted in denial of defendant's applications for further relief.
In the interim, on July 27, 2005, defendant filed a pro se petition for PCR. Defendant claimed trial counsel provided ineffective assistance. Specifically, defendant alleged that he was "misadvised" regarding the deportation consequences of his guilty plea. Defendant claimed trial counsel told him, "This being your first felony drug conviction, you will not be deported."
However, the Office of the Public Defender, which assumed defendant's representation, moved to dismiss the petition without prejudice as moot. The certification in support of the motion indicated that defendant had already been deported to Haiti, and, that PCR counsel was "unable to locate or communicate with . . . defendant . . . ." On July 28, 2006, the Law Division entered an order dismissing the petition, noting it was "withdrawn without prejudice due to the fact that defendant has been deported."
On December 7, 2006, the Public Defender moved to reinstate the petition. The certification supporting the motion indicated that, through telephone contact, defendant indicated that "the sole reason for his deportation was the conviction in the instant indictment, " and he still wished to pursue his PCR petition.
On February 27, 2008, after considering oral argument, the trial judge entered an order dismissing the PCR petition because defendant had already been deported. We reversed that order on appeal in State v. John Datus, No. A-4651-07 (App. Div. July 14, 2009) (slip op. at 9), concluding that defendant was entitled to an evidentiary hearing on his claims of ineffective assistance of trial counsel. We remanded the matter to the Law Division. Ibid.
The Essex County Assignment Judge, Patricia K. Costello, who was not the trial judge, conducted the remand hearing. As Judge Costello noted in her written opinion that followed, PCR counsel, despite "numerous unsuccessful attempts, " was unable to have defendant testify by video because of "the lack of infrastructure in Haiti, " which made the efforts ...