October 18, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ABBAS ELCHEIKHALI, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-11-1487.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa,
Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Grall and Waugh.
Defendant Abbas Elcheikhali appeals the Law Division's May 26, 2011 order dismissing his petition for post-conviction relief (PCR).
In February 2006 and June 2008, Elcheikhali accepted plea offers involving two unrelated indictments. With respect to the 2006 plea, he was sentenced to probation. He was sentenced to an aggregate term of incarceration for thirty months in 2008, which was to run concurrent with a federal sentence he was serving at the time. He did not file a direct appeal in either matter.
When Elcheikhali completed his federal sentence in July 2009, he was arrested on an immigration warrant. He filed his PCR petition in October, arguing that he received constitutionally ineffective assistance of counsel based on his defense attorney's failure to advise him that he would be deported if he pled guilty.
Elcheikhali was assigned PCR counsel, and both sides filed briefs. Judge Marilyn C. Clark, who accepted the 2008 guilty plea, heard oral argument on May 26, 2011. On the same day, she placed an oral decision denying relief on the record and filed an order dismissing the petition. This appeal followed.
Elcheikhali raises the following issues on appeal:
POINT I: THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER R. 3:22 POST-CONVICTION RELIEF CRITERIA.
POINT II: THE RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT III: DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN POST-CONVICTION RELIEF.
A. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO FILE A DOUBLE JEOPARDY MOTION.
B. PETITIONER'S GUILTY PLEA WAS NOT KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY ENTERED.
C. IMPOSITION OF "CO-TERMINOUS" SENTENCES IS UNLAWFUL.
Having reviewed Elcheikhali's arguments in light of the facts found in the record and the applicable law, we find them to be without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
Elcheikhali was advised by the plea judge in 2006 that he was subject to deportation and by Judge Clark in 2008 that deportation was "almost a certainty." Consequently, he is not entitled to relief. State v. Gaitan, 209 N.J. 339, 372 (2012), cert. denied, 568 U.S., 133 S.Ct. 1454, 185 L.Ed. 2D 361 (2013); accord Chaidez v. United States, 568 U.S.___, ___, 133 S.Ct. 1103, 1113, 185 L.Ed.2d 149, 162 (2013).