November 22, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANTHONY MAXWELL, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 14, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-08-1886.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Fasciale and Haas.
Defendant appeals from a March 19, 2012 order denying his petition for post-conviction relief (PCR). He contends that his plea counsel was ineffective by failing to advise him about potential immigration consequences of his guilty plea. We affirm substantially for the reasons expressed by Judge Michael L. Ravin in his thirty-six page written decision.
In October 2005, defendant pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2b. He filled out plea papers which show that "N/A" is circled in response to question number seventeen, notifying him that he could be deported as a result of his guilty plea if he was not a United States citizen. The judge accepted the factual basis and concluded that defendant pled guilty knowingly and voluntarily. In January 2006, the judge followed the plea agreement and sentenced defendant to seven years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2.
In April 2011, defendant filed his petition for PCR. The judge conducted an evidentiary hearing and heard testimony from defendant and his plea counsel. Plea counsel testified that, with reference to question number seventeen on the plea form, he asked defendant if he was a United States citizen. Plea counsel stated that "I explain to [my clients] I have to ask [about citizenship] because if they're not a [United States] citizen, they could be deported." Plea counsel said that in response to his questioning defendant regarding citizenship, defendant told him that he was a United States citizen. Plea counsel then circled "N/A" on the plea form for defendant. Plea counsel also stated that he reviewed the pre-sentence report (PSR) with defendant and questioned defendant further about his citizenship because the PSR referred to Jamaica as defendant's place of birth. Plea counsel testified that defendant once again represented to him that he was a United States citizen, which plea counsel confirmed was reflected on page eleven of the PSR. At the PCR hearing, defendant denied discussing the plea form or his immigration status with plea counsel.
Judge Ravin found that plea counsel was credible and defendant was incredible. The judge stated in his written opinion that
[defendant] stated on at least two occasions – the completion of his plea form and the completion of his PS[R] – that he was a U.S. Citizen. . . . [Plea] counsel made it crystal clear during the [PCR] evidentiary hearing that [defendant did not] reveal that [he] was an undocumented immigrant or illegal resident. Even during the [PCR] evidentiary hearing, [defendant] continued to admit that he was a "naturalized citizen" rather than an undocumented immigrant, illegal resident, or permanent resident.
The judge believed the testimony from plea counsel, rejected defendant's testimony, and denied the petition.
On appeal, defendant argues that
THE COURT SHOULD REVERSE THE DENIAL OF DEFENDANT'S PETITION FOR [PCR] BECAUSE THE RECORD BELOW DEMONSTRATED THAT DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL RESULTING IN AN IMPROPER GUILTY PLEA.
We find no merit to this contention, Rule 2:11-3(e)(2), and affirm substantially for the reasons stated by Judge Ravin in his comprehensive opinion. Suffice it to say, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l04 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of 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). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 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). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test.