NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-06-0795.
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 (Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Fuentes and Simonelli.
Defendant Thelfas Cooper appeals from the December 9, 2010 Law Division order, which denied his petition for post-conviction relief (PCR) following an evidentiary hearing held after a remand. We affirm.
A grand jury indicted defendant for first-degree aggravated assault, N.J.S.A. 2C:14-2a; second-degree sexual assault, N.J.S.A. 2C:14-2c; and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The charges stemmed from defendant's sexual assault of a thirteen-year-old girl from November 2002 to October 2003. Defendant impregnated the victim, the pregnancy was terminated, and DNA testing confirmed that defendant was the biological father of the fetus.
In 2004, defendant pled guilty to first-degree aggravated sexual assault in exchange for the State's agreement to dismiss the remaining charges and recommend a twelve-year term of imprisonment subject to an eighty-five percent period of parole ineligibility and a five-year period of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The trial judge sentenced defendant in accordance with the plea agreement.
Defendant appealed his sentence. We heard the appeal on our Excessive Sentencing Oral Argument Calendar, Rule 2:9-11, and affirmed. State v. Cooper, No. A-3644-05 (App. Div. Oct. 18, 2007).
Defendant then filed a PCR petition based on alleged ineffective assistance of counsel with respect to his status as a non-citizen and the risk of deportation as a result of a guilty plea. We vacated the order denying the petition, and remanded for an evidentiary hearing regarding communications between defendant and defense counsel about defendant's citizenship status and the effect of those conversations upon defendant's decision to plead guilty. State v. Cooper, No. A-1561-08 (App. Div. Mar. 18, 2010).
At the hearing, defense counsel testified that at the time of the plea hearing, he knew defendant was from Jamaica, had a green card, and was a permanent resident. Although counsel did not specifically recall advising defendant about the deportation consequences of a plea, it was counsel's practice to read Question 17 on the plea form to his clients and indicate to them the possibility of deportation. Counsel answered "N/A" to the question because defendant was a permanent resident and expressed no concern about deportation. Rather, after reviewing the evidence against him, defendant's primary concern was whether counsel could negotiate a lower sentence than the prosecutor's original offer of eighteen years subject to NERA.
Defendant testified that counsel advised him he would not be deported. He also asserted he would never have pled guilty and would have gone to trial had he known about the deportation consequences of his plea. However, defendant admitted he was aware of the evidence against him, he pled guilty because he was guilty ...