Opinion
DOCKET NO. A-6210-09T4
02-20-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NORRIS BROOKS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Ostrer.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-08-1868.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from an order denying post-conviction relief (PCR). Defendant argued that his trial counsel was ineffective because she failed to inform defendant that, as a consequence of his plea and conviction for drug-related offenses, which were deemed aggravated felonies under federal law, he would be subject to mandatory deportation. See 8 U.S.C.A. § 1227(a)(2)(A)(iii) (stating person who commits an aggravated felony is deportable); 8 U.S.C.A. § 1101(a)(42) (stating "aggravated felony" includes "illicit trafficking in a controlled substance). After an evidentiary hearing, Judge Harold W. Fullilove determined that defendant received ineffective assistance of counsel, but that he suffered no resulting prejudice. We affirm based on the judge's finding of no prejudice.
I.
We discern the following facts from the record. Defendant pleaded guilty before Judge Fullilove on January 30, 2006 to two drug-related crimes: third-degree possession of a controlled dangerous substance (cocaine) on January 12, 2004, with the intent to distribute, N.J.S.A. 2C:35-5a(1), (b)(3); and third-degree possession of marijuana on October 20, 2005 with intent to distribute, N.J.S.A. 2C:35-5. The 2004 and 2005 crimes were charged, respectively, in an indictment and an accusation; and, each charging instrument included counts for possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7; the accusation also charged distribution, N.J.S.A. 2C:35-5; and the indictment also charged possession, N.J.S.A. 2C:35-10. Defendant had been free on bail on the cocaine-related charges when he was arrested for the marijuana-related charges.
Pursuant to the plea agreement, Judge Fullilove sentenced defendant to concurrent non-custodial probationary terms of four years. Defendant had earned ten days of jail credit on the cocaine-related charge, and sixty-three days on the marijuana-related charge. Defendant had no prior indictable convictions, but he had a conditional discharge and subsequent convictions in municipal court. Born in Jamaica in 1980, defendant was a permanent legal resident of the United States, where he had lived for twelve years prior to pleading guilty.
The record of the plea hearing reflects that defendant was advised of the possibility of immigration consequences resulting from his conviction, but not the near-certainty of deportation. On the other hand, "N/A" was inaccurately circled in response to the plea form's question seventeen, which asked, "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?"
However, Judge Fullilove directly addressed defendant's immigration status during the plea hearing:
Q Are you a US citizen, Mr. Brooks?
A No, Your Honor.
Q Do you understand, Mr. Brooks, that this plea will be reported —
A Yes, Your Honor.
Q — to the Immigration and Naturalization Service? I do not know what they will do. I do not know if they will institute deportation proceedings; I have no control over that, but you should be aware that the fact that you have plead — pleaded guilty to these offenses will in fact be reported, do you understand that?
A Yes, Your Honor.
At sentencing on March 13, 2006, the judge again discussed the immigration consequences of defendant's plea
THE COURT: [Defense counsel], I have another question for you.
MS. BARNETT: Yes, your Honor.
THE COURT: At the time of the plea, was your client advised of the possible immigration consequences?
MS. BARNETT: Yes, he was, your Honor.
THE COURT: He was.
MS. BARNETT: Yes.
THE COURT: He's aware that this will be reported to INS.
MS. BARNETT: Yes, your Honor.
THE COURT: And we have no control over that.
MS. BARNETT: Absolutely, your Honor.
THE COURT: Mr. Brooks?
THE DEFENDANT: Yes, your Honor.
THE COURT: Anything you wish to say on your own behalf before I impose sentencing?
THE DEFENDANT: Your Honor, umm, I made a bad mistake, and I'm paying for my mistakes, trying to lead a good life, going through my rehabilitation. I wish to continue in that course so I can make — again profit in my life for my future and my family.
The court then imposed a sentence in accord with the plea agreement.
On November 3, 2009, defendant was arrested on an unrelated contempt charge, and while incarcerated, United States immigration officials lodged a detainer against him. Defendant then filed his PCR petition, alleging his trial attorney was ineffective by failing to inform him that his conviction would constitute an aggravated felony triggering mandatory removal. He also claimed that he was not informed that if he pleaded guilty only to simple possession, he allegedly would have been eligible to apply for cancellation of removal in Immigration Court. He asserted his attorney told him "only that if he went to trial and was found guilty he would be deported."
Judge Fullilove determined an evidentiary hearing was required. Defendant and his former trial counsel testified, along with defendant's minister. Defense counsel could not recall specifics about her communications with defendant before his plea, including whether he was a non-citizen, and whether she discussed the immigration consequences of his plea. She admitted she was unsure whether she circled "N/A" in response to question seventeen. She testified that her general practice was to inform clients of the ramifications of a conviction. At the time of the plea, she believed "there [was] a possibility that he could be deported" for an aggravated felony, but she also stated she could not recall if she knew at the time the consequences of a plea for a crime that was not so categorized. She agreed that if defendant went to trial, he faced the possibility of consecutive sentences, and periods of parole ineligibility for the school zone offenses.
Defendant's testimony at the PCR hearing was inconsistent. He testified that his attorney said nothing to him about the immigration consequences of his plea, and did not suggest that he confer with an immigration attorney. He stated his attorney filled out the plea form, did not read it to him, and circled "N/A" in answer to question seventeen. However, he also testified, "I believe she know [sic] that I was not a citizen," and conceded that she read at least some of the questions to him aloud, and inserted his answers. He alleged that his attorney told him if he pleaded guilty, he would only receive probation, but if he took the case to trial and was found guilty, he would be subject to imprisonment and deportation. He testified he would not have pled guilty if he had been told he "might be deported." He also conceded he was aware he could "possibly" be deported before he pleaded, but did so nonetheless.
Q Mr. Brooks, at the time of your plea, you were advised by the Court that deportation was a consequence; were you not?
A Yes.
Q And being aware of that fact, you still pled guilty. Is that right?
A Yes.
Q And so you knew the only way to avoid that possibility of deportation was to plead not guilty —
[DEFENSE COUNSEL]: Objection.
THE COURT: I'll allow it.
Q — And win both cases at trial. Is that right?
A Could you ask the question? I didn't understand it.
Q You were aware the only way to avoid deportation?
A Yes.
Q Was to plead not guilty and beat both cases at trial. Is that right?
A Yes.
. . . .
Q When you were advised that your plea could possibly result in deportation, did that worry you?
A Yes, it did.
Q And so you realized there was a real consequence that Immigration may still deport you?
A Yes.
Q And even knowing that, you still pled to this case?
A Yes.
Defense counsel also argued that as a result of defendant's strong ties to his children, he would not have pleaded guilty had he known the likelihood of deportation. Defendant testified that he was the father of five children; he was the primary residential custodian of a son, Nick. He also maintained a strong relationship with another son who lived with his mother in East Orange, and with two daughters who lived with their mother in Newark, visiting the three on weekends and attending church with them. He said another child was removed by her mother, and he did not know her whereabouts.
We use a pseudonym to protect the child's privacy.
However, defendant admitted that his attorney did not link his plea to its impact on his relationship with his children. On cross-examination, defendant admitted that he could not recall whether his daughters were actually living in Jamaica at the time of his plea, and then conceded that his pre-sentence report accurately stated they lived in Jamaica.
II.
In a written decision, Judge Fullilove denied the petition. He applied the well-settled two-prong test for determining whether defendant was entitled to PCR. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).
In finding ineffective assistance, the judge applied the standard set forth in Padilla v. Kentucky, 559 U.S. _, _ 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 296 (2010), that an attorney has a professional duty to inform a non-citizen client when removal is not merely possible, but certain. He concluded that defendant's attorney did not meet that standard. Therefore, the ineffective assistance prong of Strickland was met.
However, the court found defendant had "fallen very short of satisfying the second prong" — prejudice. We set forth at length Judge Fullilove's findings regarding prejudice:
The proofs in the within matter indicate that as to Ind. 05-08-1868, defendant jumped out of [the] window of the home he was living in when his brother was shot. While investigating the shooting, police found a baby wipes box that contained several bags of suspected cocaine. Additional cocaine was found on the floor of the room. As a result, defendant was charged with possession, possession with intent to distribute, and possession with intent to distribute within 1000 feet of a school. In Acc. 06-01-0012, defendant was again charged with the same offenses when he was arrested after police observed what they believed [was] a drug transaction and arrested defendant and the alleged buyer. When defendant's vehicle was searched, marijuana and $827 was found. Again, defendant was charged with the three drug offenses (this information was taken from the Presentence Report (PSI) prepared for the defendant's sentence after the plea).
Additional proofs that may have been available to the State in the event of trial on the indicted matter can[]not be gleaned [from] the PSI. However, if convicted on the 1000 foot charge, a mandatory three year period of parole ineligibility would have been imposed at the time of sentencing. As the second offense which was disposed of by a plea to the Accusation, based on the information contained in the PSI, the proofs seem to be strong. Again, if convicted, the defendant would have been subject to a mandatory period without parole of three years. Since the offenses occurred on different dates, and since the defendant was on bail when the second offense was
committed, the sentences on these two matters would have presumptively been consecutive, i.e., six years incarceration before becoming eligible for parole.
At the time of the hearing held as part of this Petition, defendant indicated that if he had been told of the likelihood of removal as a result of his plea, he would have risked being found guilty rather tha[n] risk being deported and being deprived of the ability to continue to see and be with his children. I find defendant's testimony in this regard to have no credibility. The PSI indicates that one of his children resided with defendant's mother, one, [Nick], resided with the child's mother, and two of the children resided in Jamaica with their grandmother. When asked about the residence of his children at the hearing, defendant stated he "did not recall" that two of the children were residing in Jamaica. Defendant did produce documentation that the PSI was incorrect with regard to [Nick], and the Court had awarded custody of this child to defendant and defendant's mother. I find the testimony that the defendant would risk mandatory incarceration without parole rather than risk losing his relationship with his children unbelievable, especially in light of defendant's statement th[at] he forgot two of the children w[]ere living in Jamaica with their grandmother. To forget that two of your children are not even in the country does not lead this court to conclude that the testimony is credible. I am satisfied that defendant has failed to satisfy this court that but for the incorrect information provided by his attorney regarding his risk of deportation, he would not have pled guilty and insisted on going to trial. I am satisfied that defendant decided to accept an offer of a probationary sentence, eliminate the possibility of mandatory jail time and risk the possibility of being arrested by ICE and
being subject to removal (there was a little over three year hiatus between the sentence and detainer being filed).
On appeal, defendant raises the following points for our consideration:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S GUILTY PLEAS VACATED BECAUSE UNDER R. 3:22-2 CRITERIA, AND UNDER THE CRITERIA OF BOTH PRONGS OF THE STRICKLAND/FRITZ TEST, THE DEFENDANT WAS PREJUDICED BY TRIAL COUNSEL'S DEFICIENT PERFORMANCE AT THE PLEA HEARING.
POINT II
THE COURT'S 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.
III.
We recognize that in finding ineffective assistance, Judge Fullilove did not have the benefit of the Supreme Court's decision in State v. Gaitan, 209 N.J. 339 (2012), declining to give retroactive effect to Padilla. It is now settled that when defendant entered his plea in 2006, defense counsel was not required, as part of her obligation to provide effective assistance, to inform defendant that he faced a virtual certainty of removal or deportation as a result of his conviction of an aggravated felony. Gaitan, supra, 209 N.J. at 380. Our Supreme Court held that Padilla established a new rule of law. Id. at 373.
However, defense counsel pre-Padilla was still required to avoid affirmatively misinforming her client about the immigration consequences of his plea; she was also required not to compound the error by providing inaccurate and misleading information. Ibid. The Court in State v. Nuñez-Valdéz, 200 N.J. 129, 140-42 (2009), held that providing such misinformation and misleading information was ineffective assistance, and the Court in Gaitan, supra, held that was not a new rule of law and thus it applied retroactively, 209 N.J. at 373-74.
Applying the standard of performance enunciated in Nuñez-Valdéz, but refraining from retroactively applying the standard enunciated in Padilla, it is unclear whether Judge Fullilove would have found ineffective assistance. He did not expressly decide whether defendant's trial attorney affirmatively misinformed him. Making that finding would require a reassessment of the evidence, inasmuch as defendant alleged he was misinformed that probation would not result in deportation, but conviction after trial would.
However, we need not remand for that purpose, in view of Judge Fullilove's amply supported finding that defendant failed to demonstrate prejudice. To satisfy the prejudice prong, defendant was required to show "a reasonable probability that, but for counsel's errors, [he] would not have pled guilty and would have insisted on going to trial." Gaitan, supra, 209 N.J. at 351 (citation and quotation omitted). The judge found defendant failed to make that showing. The judge made essential factual findings based on the evidence presented, and we shall not disturb them. See State v. Feaster, 184 N.J. 235, 278 (2005) (stating that in the context of a PCR petition, the appellate court must "give deference to the trial court[']s factual findings . . . when supported by adequate, substantial and credible evidence") (citation and quotation omitted); see also N.J. Div. of Youth and Family Servs. v. L.L., 201 N.J. 210, 226-27 (2010) (observing that the appellate court will not disturb trial court's findings when supported by substantial credible evidence, but will intervene when the court's conclusion is "clearly mistaken or wide of the mark").
In sum, we affirm for the reasons set forth in Judge Fullilove's well-reasoned written opinion as it pertained to defendant's failure to demonstrate prejudice from the alleged ineffective assistance of counsel.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION