Opinion
DOCKET NO. A-4276-13T3
04-15-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WOOJIN HWANG, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the briefs). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Currier. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-08-1101. Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the briefs). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) after an evidentiary hearing. Defendant was indicted on four counts of drug offenses that included a second-degree charge of possession of cocaine with intent to distribute. He entered a guilty plea to third-degree possession of cocaine in 2009 and did not file a direct appeal. He raises the following arguments for our consideration:
POINT IPro Se Points (Raising additional issues)
THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART.1, PAR. 10 OF THE NEW JERSEY CONSTITUTION.
POINT II
THE DEFENDANT WAS SUBJECTED TO A MANIFEST INJUSTICE BY ENTERING INTO A GUILTY PLEA BASED ON MISINFORMATION CONCERNING THE MATERIAL TERMS OF THE PLEA AGREEMENT.
POINT III
TRIAL COUNSEL'S FALSE ADVICE TO MR. HWANG THAT EXPUNGING THE CONVICTION RESULTING FROM THE GUILTY PLEA WOULD MITIGATE OR ELIMINATE HWANG'S DEPORTABILITY SUBJECTED MR. HWANG TO A MANIFEST INJUSTICE.
POINT IV
TRIAL COUNSEL'S FALSE ADVICE THAT MR. HWANG HAD COMMITTED A CRIME OF WITNESS TAMPERING AND HIS FALSE THREAT THAT THE CRIME WOULD BE REVEALED IF HE DID NOT PLEAD GUILTY SUBJECTED MR. HWANG TO A MANIFEST INJUSTICE.
POINT VPro Se Points (supplementing counsel's reply brief)
MR. HWANG PLEADED GUILTY BEFORE HE HAD A CHANCE TO EXAMINE THE PCPO-NTF'S EXCULPATORY POLICE REPORT. THEREFORE THE PLEA SHOULD BE VACATED FOR INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT VI
THE WARRANTLESS SEARCH THAT TRIAL COUNSEL FAILED TO CHALLENGE IS OVERTLY ILLEGAL AND DOES NOT WARRANT MUCH DISCUSSION.
POINT I
DEPORTATION WAS MANDATORY, NOT DISCRETIONARY.
POINT II
THE STATE'S ARGUMENT IS CONTRARY TO A NEW JERSEY SUPREME COURT DECISION.
We are not persuaded by any of these arguments and affirm.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated 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). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
The thrust of defendant's appeal concerns two areas of alleged ineffective assistance: (1) counsel failed to adequately inform him of the immigration consequences of his guilty plea; and (2) counsel failed to pursue a suppression motion.
Defendant argues he was subject to mandatory deportation as a result of his guilty plea and that counsel's advice failed to communicate that certainty. Question number 17 on the plea form 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?" The words "may be" were underlined and "Yes" was circled as a response. At the evidentiary hearing, trial counsel stated he "may have" underlined the words "may be." He understood that the offense that was the subject of the guilty plea was deportable, but believed defendant would have a better chance to remain in the country if he entered a plea to simple possession and avoided a conviction for possession with intent to distribute. However, counsel maintained, "immigration can do absolutely whatever they want."
Significantly, defendant's guilty plea was entered before the United States Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). As our Supreme Court held in State v. Gaitan, 209 N.J. 339 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013), the standard applicable to pleas entered at that time was that counsel not affirmatively misinform a client of the consequences of the guilty plea. Id. at 375-76. Therefore, defendant's claim based upon counsel's advice regarding his possible deportation lacks merit.
Defendant also alleges his trial counsel was ineffective in withdrawing a motion to suppress evidence. According to police reports, police officers accompanied town officials to a dwelling to investigate the possibility of an illegal apartment and were admitted by the property owner. Upon entry, the officers observed marijuana and cocaine in plain view and obtained a search warrant. Trial counsel filed a suppression motion, which he deemed to be potentially viable. However, after receiving a favorable affidavit from defendant's landlord, counsel became aware that defendant had offered his landlord $2,000 for his testimony. He spoke to the landlord, who told counsel that he had received the money from defendant and would tell the police anything counsel needed him to say. Counsel advised defendant that he could not use the landlord as a witness without disclosing the fact defendant had paid him. He feared the motion was irreparably compromised and that pursuing it would expose defendant to a charge of witness tampering. It was his judgment that it would be in defendant's best interest to seek a negotiated plea rather than proceed with the motion and advised defendant accordingly.
Strategic decisions that are objectively reasonable, albeit debatable or unsuccessful, are "'within the wide range of reasonable professional assistance' to which an accused is entitled." State v. Arthur, 184 N.J. 307, 333 (2005) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). "In determining whether defendant has met the first prong of the Strickland/Fritz test, [we] will not second-guess defense counsel's trial decisions which rest upon strategic or tactical considerations." State v. Castagna, 376 N.J. Super. 323, 360 (App. Div.), rev'd, on other grounds, 187 N.J. 293 (2006).
In this case, trial counsel's decision to abandon the compromised suppression motion was manifestly reasonable and does not support a claim of ineffective assistance. The remaining arguments raised by defendant lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION