Opinion
DOCKET NO. A-4005-13T3
02-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TROY FREEMANTLE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Craig S. Leeds, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 10-04-0342. Joseph E. Krakora, Public Defender, attorney for appellant (Craig S. Leeds, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Troy Freemantle appeals from the June 21, 2013 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
We derive the following facts from the record. On September 16, 2009, defendant pled guilty to third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(b)(11). In accordance with the State's recommendation, the court sentenced defendant to the Pre-trial Intervention Program (PTI) for a period of twelve months.
At the plea hearing, defendant acknowledged, under oath, that he read and understood the plea forms, answered the questions truthfully, reviewed the forms with defense counsel prior to pleading guilty, and no one made promises to him other than the State's recommendation. Defendant had answered "no" to the question on the plea form that asked if he was a citizen of the United States, and "yes" to the question that asked if he understood that he may be deported by virtue of his guilty plea if he was not a United States citizen or national. Defendant also answered "none" to the question that asked him to list any other promises or representations made to him or his attorney.
In addition, defendant testified that he was not a citizen of the United States and understood that he may be deported as a result of his guilty plea and will be deported if his plea of guilty was for a crime considered an aggravated felony under federal law. Judge Jared Honigfeld advised defendant of his right to seek legal advice on his immigration status prior to pleading guilty. Defendant declined to do so and pled guilty.
On January 31, 2011, defendant pled guilty to third-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(11), and was terminated from PTI. Although the State recommended a maximum five-year term of imprisonment, Judge Raymond A. Reddin sentenced defendant to a two-year non-custodial probationary term with credit for thirty-seven days served in the county jail.
At the plea hearing, defendant acknowledged, under oath, that he reviewed the plea forms with his attorney, the answers were true and accurate, and he signed all pages. Defendant had answered "no" to the question on the plea form that asked if he was a citizen of the United States. He answered "yes" to the questions that asked if he understood that he may be deported by virtue of his guilty plea if he was not a United States citizen or national; he will be deported if his plea was for a crime considered an aggravated felony under federal law; and he had the right to seek legal advice on his immigration status prior to pleading guilty. Defendant also answered "none" to the question that asked him to list any other promises or representations made to him or his attorney.
In addition, defendant testified that he was not a citizen of the United States and understood that he may be deported as a result of his guilty plea and "will definitely" be deported if his plea of guilty was for a crime considered an aggravated felony under federal law. Defendant acknowledged that he had consulted an immigration attorney prior to pleading guilty and understood that he would probably be deported as a result of his plea. Defendant also answered, "Yes, sir" when Judge Reddin asked him to
assume for a fact with 100 percent certainty you're going to get deported as a result of pleading guilty to this offense. Okay. So with that in mind . . . nothing short of deportation, the question is, do you still want to plead guilty at this time?
Defendant did not appeal. Instead, on September 14, 2012, he filed a PCR petition, arguing that defense counsel misadvised him that he would not be deported if he cooperated with law enforcement with respect to an ongoing drug distribution investigation targeting various individuals. Defendant also argued that he would not have entered into both guilty pleas if he knew he would be deported. Defendant provided no evidence that he cooperated with law enforcement.
In a June 21, 2013 oral opinion, Judge Reddin denied the petition. The judge found that the plea transcripts and plea forms disproved defendant's claim that he would not have entered into both guilty pleas if he knew he would be deported. The judge found no merit in defendant's claim that defense counsel misadvised him, and concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel warranting an evidentiary hearing. This appeal followed. On appeal, defendant reiterates the arguments made before Judge Reddin.
Our Supreme Court has held that
to set aside a guilty plea based on ineffective assistance of counsel, a 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.See also State v. Parker, 212 N.J. 269, 279 (2012). A defendant can establish ineffective assistance of counsel by proving that his guilty plea resulted from "inaccurate information from counsel concerning the deportation consequences of his plea." Nuñez-Valdéz, supra, 200 N.J. at 143. The focus is on "false or misleading information" from counsel as establishing the violation of the defendant's constitutional rights. Id. at 138.
[State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).]
Here, defendant failed to show that counsel's assistance was not within the range of competence demanded of attorneys in criminal cases. Both the court and the plea forms twice provided accurate advice to defendant that he "will" be deported if his pleas were for a crime considered an aggravated felony under federal law. Further, defendant twice acknowledged that he understood the mandatory deportation consequences of both guilty pleas and that no promises or representations were made to him or his attorney other than the State's sentencing recommendations. Defendant also testified that he consulted an immigration attorney prior to entering the second guilty plea and knew as a result thereof that he would probably be deported. Accordingly, defendant was well-aware prior to entering both pleas that he would be deported as a result of either of his guilty pleas.
Even if defendant established that defense counsel told him he would not be deported if he cooperated with law enforcement, defendant did not show there was a reasonable probability that, but for counsel's error, he would not have pled guilty and would have insisted on going to trial. There is no evidence that defendant cooperated with law enforcement.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION