Opinion
DOCKET NO. A-2170-11T4 DOCKET NO. A-2171-11T4
06-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WAYNE A. COLEY, a/k/a WAYNE COLEY, a/k/a WAYNE ANTHONY COLEY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Leone.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 09-12-2308, 04-08-1706, and 02-08-1830.
Joseph E. Krakora, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Wayne A. Coley filed two petitions for post-conviction relief (PCR) relating to three separate convictions. He alleged ineffective assistance of counsel regarding the removal consequences of his guilty pleas. Defendant appeals the denial of those petitions without an evidentiary hearing. We consolidate defendant's appeals and affirm.
"'Removal' is the current statutory term for what was known in the past as 'deportation.'" State v. Gaitan, 209 N.J. 339, 345 n.1 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
I.
Defendant is from Jamaica and is a legal permanent resident in the United States. On August 8, 2002, Indictment No. 02-08-1830 charged defendant with the following counts: (1) third-degree attempt to cause bodily injury with a deadly weapon, N.J.S.A. 2C:12—1(b)(2); (2) second-degree attempt to cause serious bodily injury, N.J.S.A. 2C:12—1(b)(1); (3) third-degree attempt to cause bodily injury with a deadly weapon, N.J.S.A. 2C:12—1(b)(2); (4) third-degree possession of a weapon with purpose to use it unlawfully against person or property, N.J.S.A. 2C:39—4(d); (5) fourth-degree possession of a weapon under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39—5(d); and (6) third-degree attempt to cause significant bodily injury, N.J.S.A. 2C:12—1(b)(7).
Defense counsel negotiated a plea agreement that dismissed these second-, third-, and fourth-degree charges. Instead, pursuant to the negotiated plea agreement, defendant pled guilty on May 5, 2003, to the disorderly persons offense of simple assault under N.J.S.A. 2C:12—1(a)(3), with a recommended sentence of probation. The court sentenced defendant to time served and one year of probation. The judgment of conviction was entered on June 6, 2003 (2003 conviction).
Defendant was arrested again on June 2, 2004. He was charged under Indictment No. 04—08—1706 with third-degree shoplifting, N.J.S.A. 2C:20—11(b)(1). Pursuant to a negotiated plea agreement, he pled guilty to shoplifting in exchange for a recommended sentence of one year of probation.
In the plea colloquy, the court explained that if defendant pled guilty, he "most likely will be subject to immigration and deportation authorities and you may be subject to a deportation hearing. Do you understand that?" Defendant responded: "Yes, your honor." The court explained that such a hearing was likely, that defendant "may be deported" because this was a third-degree crime, and that he could speak to an immigration lawyer before proceeding if he wished. Defendant said his counsel explained that to him. Defendant then asked if he "still can get deported" if he was sentenced to probation. The court responded: "Yes, you could still be deported." The court reiterated that though defendant would "receive a probationary sentence," he "may be subject to immigration authorities." In response, defendant stated: "I'll take the one year probation." The court sentenced defendant to one year of probation. The judgment of conviction was entered on February 28, 2005 (2005 conviction).
On February 6, 2009, defendant was arrested a third time. Defendant was charged under Indictment No. 09-12-2308 with three counts of third-degree distribution of cocaine, N.J.S.A. 2C:35—5(a)(1), (b)(3). Pursuant to a negotiated plea agreement, defendant pled guilty to one count of third-degree possession of cocaine in exchange for dismissal of the remaining two counts, and recommendations that the offense be downgraded to fourth-degree, and that he receive no more than one year in prison. At the April 5, 2010 plea colloquy, Judge Eugene H. Austin asked defendant: "have you had a chance to talk to counsel about immigration issues with a guilty plea in this matter[,]" to which defendant responded: "Yes, your honor." The court confirmed that, defendant had received advice from an immigration attorney.
During the colloquy, plea counsel made sure that defendant understood that his two prior convictions were for crimes involving moral turpitude, and explained the removal consequences, including his ability to apply for cancellation of removal. Plea counsel then asked defendant whether he understood that the current charge of "[d]istribution of drugs is considered an aggravated felony which will definitively, without question, result in your deportation." Defendant responded: "Yeah, I understand that." Plea counsel asked defendant if, despite the removal consequences, he still wished to proceed with his guilty plea, to which defendant responded: "Yes." Finally, the court asked if defendant understood "the full consequences of this [plea,] including the fact that there will be proceedings for removal and deportation," and if he "still wished to plead guilty," to which defendant responded: "Yes, your honor."
At sentencing, plea counsel asked Judge Austin to sentence defendant to the 297 days he had served because defendant, with his current conviction "of an aggravated felony in conjunction with minor offenses he had in his past[,] will be deported." Plea counsel also argued that defendant would "lead a law abiding life in Jamaica not in the United States unfortunately due to the immigration consequences we discussed during the plea and that [defendant] was clearly advised of prior to his entry of the plea."
The court initially imposed a two-year probationary sentence and a 297-day custodial sentence. Plea counsel asked "if the court would be amenable to sentencing [defendant] to time served without a probationary sentence" because defendant had an immigration detainer lodged against him, and because probation "was not a consequence [counsel had] discussed with her immigration expert." The court, without objection from the prosecutor, amended the sentence to 297 days with no probation. The judgment of conviction was entered on May 14, 2010 (2010 conviction).
Defendant did not appeal any of his convictions or sentences. On June 15, 2010, defendant filed a PCR petition claiming that plea counsel in both the 2003 and 2005 convictions failed to notify him properly of the possible removal consequences resulting from his guilty pleas. On October 21, 2010, defendant filed a second PCR petition, similarly alleging that plea counsel failed to advise him of the possible removal consequences resulting from his guilty plea in the 2010 conviction.
Judge Austin considered defendant's two PCR petitions together. Defendant's PCR counsel declined argument, stating: "I believe that every argument that I could possibly make has been made in the papers and also supported by the attachments." The court described the parties' briefs as "thorough and complete." The court determined that defendant's PCR petition challenging the 2003 and 2005 convictions was untimely under Rule 3:22—12 because it was filed more than five years after the judgment of convictions. The court next found that defendant's PCR petition for the 2010 conviction failed to establish a prima facie case of ineffective assistance of counsel. Therefore, the court declined to hold an evidentiary hearing.
Defendant appeals, raising the following arguments:
I. THE INEFFECTIVE ASSISTANCE OF TRIAL AND PCR COUNSEL DEPRIVED COLEY OF HIS CONSTITUTIONAL RIGHTS AND RENDERED THE PLEA ALLOCUTION AND SENTENCING AS FUNDAMENTALLY UNRELIABLE AND UNFAIR
A. Coley Was Denied the Effective Assistance of Trial Counsel.II. THE PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS ALL OF THE CLAIMS RAISED BY COLEY.
B. Coley Was Denied the Effective Assistance of PCR Counsel.
By footnote, defendant also purports to incorporate all other issues raised in the PCR proceedings. However, we address only those issues properly raised and briefed before us. Skidowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived."). We will not consider arguments raised in a footnote or by incorporation. See Almog v. Israel Travel Advisory Serv., Inc., 298 N.J. Super. 145, 155 (App. Div. 1997), certif. dismissed as improvidently granted, 152 N.J. 361, cert. denied, 525 U.S. 817, 119 S. Ct. 55, 142 L. Ed. 2d 42 (1998). See also State v. Gaither, 396 N.J. Super. 508, 515 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008) (appellate PCR counsel is not required to advance all grounds raised by defendant regardless of merit).
II.
We must hew to our standard of review. We exercise de novo review over the PCR court's conclusions of law. State v. Nash, 212 N.J. 518, 540—41 (2013). To show ineffective assistance of counsel, defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). "'First, the defendant must show that counsel's performance was deficient.'" State v. Taccetta, 200 N.J. 183, 193 (2009). "'Second, the defendant must show that the deficient performance prejudiced the defense.'" Ibid.
In the context of a guilty plea, the defendant must show "that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases; and (ii) 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (citation omitted) (quoting Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 371, 88 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).
The standard governing criminal defense counsel's obligations concerning immigration issues have changed over time. In 2003 and 2005, plea counsel was not required to advise a defendant regarding the removal consequences of a plea, but counsel would be ineffective if counsel "provide[d] false or misleading [material] information concerning the deportation consequences of a plea of guilty." State v. Nuñez—Valdéz, 200 N.J. 129, 138—40 (2009). However, on March 31, 2010, the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010), held that "counsel must inform her client whether his plea carries a risk of deportation." The Court's ruling in Padilla is not retroactively applied to convictions that were "final" when Padilla was decided on March 31, 2010. Chaidez v. United States, ___ U.S. ___, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013); Gaitan, supra, 209 N.J. at 352 (2012). Thus, Padilla does not apply to defendant's 2003 and 2005 convictions, but does apply to his 2010 conviction because he entered his guilty plea to the 2010 offense fifteen days after the decision in Padilla.
III.
Defendant cannot show a reasonable likelihood of success regarding his 2003 and 2005 convictions because his PCR petition is untimely. See State v. Brewster, 429 N.J. Super. 387, 398 (App. Div. 2013). Rule 3:22—12(a)(1) has long provided that "[n]o petition shall be filed . . . more than 5 years" after the entry of the challenged judgment of conviction, absent excusable neglect. In addition, before defendant filed his first PCR petition, the Rule was amended to provide that an untimely petition cannot be considered unless it alleges "facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." R. 3:22—12(a)(1). "These time limitations shall not be relaxed, except" as otherwise provided in the amended Rule 3:22—12. R. 3:22—12(c); see R. 1:3—4(c).
Defendant's PCR petition regarding the 2003 and 2005 convictions is governed by the current version of Rule 3:22—12, which the Supreme Court made effective February 1, 2010. E.g, Brewster, supra, 429 N.J. Super. at 398 n.3. "[C]ourt rules 'are given retrospective application if vested rights are not thereby disturbed.'" Shimm v. Toys from the Attic, Inc., 375 N.J. Super. 300, 304—05 (App. Div. 2005) (quoting Feuchtbaum v. Constantini, 59 N.J. 167, 172 (1971)); see also Kas Oriental Rugs, Inc. v. Ellman, 407 N.J. Super. 538, 549—52 (App. Div.), certif. denied, 200 N.J. 476 (2009). Here, defendant had no vested right preventing the Court from amending the Rule's procedures for PCR petitions, particularly as he did not file a petition until June 2010. See State v. Rose, 425 N.J. Super. 463, 468 (App. Div. 2012). Nor, as set forth below, is it manifestly unjust to apply this version of Rule 3:22—12. See James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 563 (2014).
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Defendant's first judgment of conviction was entered on June 6, 2003. Under Rule 3:22—12(a)(1)'s five-year limit, defendant had until June 6, 2008, to file his PCR petition with respect to his 2003 conviction. Because defendant's second judgment of conviction was entered on February 28, 2005, defendant had until February 28, 2010, to file his PCR petition with respect to his 2005 conviction. Defendant did not file his PCR petition until June 10, 2010, two years after the five-year limit expired for the 2003 conviction and nearly four months after the five-year limit expired for the 2005 conviction.
Defendant has made no allegations of excusable neglect. He failed to file a timely petition even though he was informed in 2004 that pleading guilty could have removal consequences.
Furthermore, defendant cannot show a reasonable probability of fundamental injustice. Indeed, he has failed to set forth a prima facie case of ineffectiveness. Defendant must show that plea counsel gave him "false or misleading information concerning the deportation consequences of pleading guilty." Nuñez—Valdéz, supra, 200 N.J. at 138. Defendant has made no such claim.
Instead, defendant asserts plea counsel was ineffective for failing to negotiate a plea agreement that would have protected him from removal consequences. However, "a defendant has no legal entitlement to compel a plea offer or a plea bargain; the decision whether to engage in such bargaining rests with the prosecutor." State v. Williams, 277 N.J. Super. 40, 46 (App. Div. 1994). Defendant received an extraordinarily lenient plea offer in 2003, and a lenient offer in 2005. He proffers no evidence suggesting the State would have made, or the court accepted, even more generous plea offers with no removal consequences. See id. at 46—47; see also Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399, 1410, 182 L. Ed. 2d 379, 392 (2012).
Accordingly, we affirm the holding of the PCR court that defendant's PCR petition regarding the 2003 and 2005 convictions is procedurally barred under Rule 3:22-12.
IV.
We turn now to defendant's ineffective assistance of counsel claims regarding his 2010 conviction. In the certification in support of his PCR petition, defendant claims plea counsel advised him that "if [he] took this plea [he] would not be deported." Defendant's certification is flatly contradicted by the record. As set forth above, plea counsel advised, and defendant understood and acknowledged, that his guilty plea to an aggravated felony would "definitively, without question, result in [his] deportation." Counsel and the court repeatedly made that clear, both at the plea and sentencing hearings.
The record of the 2010 plea colloquy and sentencing plainly sets forth plea counsel's advice, defendant's understanding of that advice, and Judge Austin's findings confirming defendant's understanding. Because the record is clear, defendant's conclusory certification to the contrary does not merit an evidentiary hearing, let alone relief. As the United States Supreme Court has ruled:
[T]he representations of the defendant, his lawyer, and the prosecutor at such a [plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.Those principles govern here. See State v. Simon, 161 N.J. 416, 444 (1999).
[Blackledge v. Allison, 431 U.S. 63, 73—74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977).]
Indeed, the record of counsel's thorough and careful advice shows that defendant's ineffectiveness claim is meritless. First, defendant does not claim that his counsel provided "false or misleading information concerning the deportation consequences of a guilty plea." Nuñez—Valdéz, supra, 200 N.J. at 139—40.
Second, the record demonstrates that plea counsel met her obligation under Padilla. Padilla requires plea counsel to "inform her client" that pleading guilty to certain crimes "carries a risk of deportation." Padilla, supra, 559 U.S. at 374, 130 S. Ct. at 1486, 176 L. Ed. 2d at 299. Normally, plea counsel "need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Id. at 369, 130 S. Ct. at 1484, 176 L. Ed. 2d at 296. "But when the deportation consequence is truly clear" because "the terms of the relevant immigration statute are succinct, clear, and explicit," such that the removal consequences of a plea can "easily be determined from reading the removal statute," counsel must "give correct advice." Id. at 368-69, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295-96.
At the plea colloquy, defendant agreed that plea counsel, after consultation with an immigration expert, had discussed the removal consequences with him. Plea counsel then explained on the record the removal consequences of both his prior and current offenses. In particular, plea counsel asked whether defendant understood that pleading guilty to "[d]istribution of drugs is . . . an aggravated felony which[,] will definitively, without question, result in deportation." Defendant acknowledged he understood. The PCR judge then found that defendant was "specifically advised of the immigration consequences and still chose to plead guilty."
Defendant does not dispute that counsel's advice on the record was accurate. Indeed, counsel's advice accurately reflected the federal immigration statutes. In particular, those statutes provide that "illicit trafficking in a controlled substance" is an "aggravated felony," 8 U.S.C.A. § 1101(a)(43)(B), and that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable," 8 U.S.C.A. § 1227(a)(2)(A)(iii), (B)(i). This was accurate advice. See Padilla, supra, 559 U.S. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295.
Defendant cites plea counsel's admission at sentencing that she did not know whether adding a probationary sentence would make a difference in defendant's immigration status because that was "not a consequence [she] discussed with [her] immigration expert," and that "[i]t wasn't something [she] contemplated in crafting the plea." Defendant claims this demonstrates that she was ineffective. However, plea counsel successfully obtained a sentence that did not include probation specifically to avoid any additional removal consequences. Such representation is not ineffective assistance of counsel. It also had no effect on defendant's prior guilty pleas, particularly as counsel reiterated that, because defendant pled guilty to an aggravated felony, "[w]e know he will be deported."
Defendant does not contest that he was informed of the removal consequences, but rather that plea counsel should have negotiated a more beneficial plea agreement. Again, defendant has failed to show that his plea counsel could procure, the State would offer, or the court would accept, a more generous plea agreement that would not result in removal. See Williams, supra, 277 N.J. Super. at 46. Counsel was not ineffective for negotiating a plea agreement that was more favorable, given defendant's criminal history and the seriousness of the 2010 offenses.
VI.
Defendant argues that the PCR court should have held an evidentiary hearing. However, PCR courts need not grant evidentiary hearings unless "a defendant has presented a prima facie [case] in support of post-conviction relief." State v. Marshall, 148 N.J. 89, 158, cert. denied, 52 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). "To establish such a prima facie case, the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits." Ibid. As set forth above, defendant has failed to establish a prima facie case, and thus was not entitled to an evidentiary hearing.
VII.
Defendant also alleges PCR counsel was ineffective for failing to deliver oral argument at the May 2011 PCR hearing. Defendant cites State v. Webster, 187 N.J. 254 (2006), State v. Rue, 175 N.J. 1, 19 (2002), and State v. Hicks, 411 N.J. Super. 370 (App. Div. 2010). Those cases interpret Rule 3:22—6(d), which requires counsel's brief in the PCR court to advance the legitimate grounds for relief raised by a pro se defendant, and to list other grounds that defendant insists be asserted. Those cases do not require counsel to orally argue his or her client's grounds for relief. Rather, "'as in any case in which a brief is filed, counsel may choose to stand on it at the hearing, and is not required to further engage in expository argument.'" Webster, supra, 187 N.J. at 257 (quoting Rue, supra, 175 N.J. at 19).
Here, there is no evidence PCR counsel could have fashioned more effective arguments than those presented in the briefs. Indeed, defendant identifies no specific arguments he believes should have been made or advanced by PCR counsel. Thus, PCR counsel was not ineffective.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION