Opinion
DOCKET NO. A-5225-13T3
02-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERICK K. KIBUUKA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Kennedy. On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. 07-02-0091. Joseph E. Krakora, Public Defender, attorney for appellant (Anderson D. Harkov, Designated Counsel, on the brief). Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (Gretchen A. Pickering, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Erick K. Kibuuka appeals from the February 24, 2014 order denying his petition for post-conviction relief (PCR) after oral argument, but without an evidentiary hearing. We affirm.
In 2007 defendant, a Ugandan citizen who had resided in the United States since 1999, pled guilty to an amended charge of third-degree resisting arrest, N.J.S.A. 2C:29-2, and was placed on probation for two years. After violating probation, he was placed on an additional two years of probation. Defendant was acquitted of a subsequent violation of probation charge. In 2012, following a bench trial, defendant was found guilty of third-degree defrauding the administration of a drug test to a person on probation, N.J.S.A. 2C:36-10(d), and sentenced to a four-year prison sentence. We affirmed this conviction and sentence on appeal. State v. Kibuuka, No. A-6290-11 (App. Div. Nov. 12, 2013), certif. denied, 217 N.J. 590 (2014).
While defendant was incarcerated, a deportation detainer was lodged against him. On March 11, 2013, defendant filed a PCR petition claiming his plea counsel was ineffective in 2007 for failing to explain the deportation consequences of his guilty plea. He claimed that his assigned lawyer from the Office of the Public Defender "refused to advise him" of "the immigration consequences" and "directed him to consult with an attorney specializing in immigration law."
When defendant pled guilty in 2007, Judge Carmen H. Alvarez advised him that the conviction would "have an effect on [his] status as an immigrant." Defendant stated he understood. Further, defendant answered in the affirmative to Question 17 of the plea form, 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?"
Defendant raises the following issues in this appeal:
POINT I: DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD BE REMANDED WITH INSTRUCTIONS TO THE TRIAL COURT TO ORDER THE OFFICE OF THE PUBLIC DEFENDER TO APPOINT NEW PCR COUNSEL WHO WILL FULFILL HIS OR HER OBLIGATION TO PROVIDE DEFENDANT WITH THE EFFECTIVE ASSISTANCE OF PCR COUNSEL.
POINT II: THE TIME BAR OF R. 3:22-12 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.
POINT III: THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
POINT IV: THE FAILURE OF TRIAL COUNSEL TO ADVISE DEFENDANT THAT A CONSEQUENCE OF HIS GUILTY PLEA WOULD BE THAT HE FACE MANDATORY DEPORTATION DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
We first review the well-established principles guiding our PCR review. Defendant's petition arises from the application of Rule 3:22-2, which permits collateral attack of a conviction based upon a claim of ineffective assistance of counsel within five years of the conviction. See R. 3:22-2(a); R. 3:22-12(a); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-part Strickland test: (1) "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and (2) the deficient performance truly "prejudiced the defense." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693 (quoting U.S. Const. amend. VI); Fritz, supra, 105 N.J. at 58 (adopting the Strickland two-part test in New Jersey).
There is a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. We must therefore engage in a "highly deferential" scrutiny of trial counsel with an eye to "avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Arthur, 184 N.J. 307, 318-19 (2005) (quoting State v. Norman, 151 N.J. 5, 37 (1997)).
A PCR judge should only grant an evidentiary hearing "if a defendant has presented a prima facie claim in support of post-conviction relief." State v. Preciose, 129 N.J. 451, 462 (1992). To establish a prima facie case, defendant must demonstrate "the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington." Id. at 463. A defendant "must do more than make bald assertions that he was denied effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "He must allege [specific] facts sufficient to demonstrate counsel's alleged substandard performance." Ibid.
In cases brought by a defendant who has entered a guilty plea, the defendant satisfies the first prong if he or she can show that counsel's representation fell short of the prevailing norms of the legal community. Padilla v. Kentucky, 559 U.S. 356, 366-67, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). The defendant proves the second component of Strickland by establishing a reasonable probability that the defendant "would not have pled guilty," but for the counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009)), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Defendant cannot establish either prong.
Defendant complains that his plea counsel did not adequately warn him about deportation. In Padilla, the United States Supreme Court held that attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea. Padilla, supra, 559 U.S. at 373-74, 130 S. Ct. at 1486, 176 L. Ed. 2d at 298-99. Defendant pled guilty many years before Padilla, and courts remain split as to whether its ruling is retroactive. See Gaitan, supra, 209 N.J. at 366. Our Supreme Court has held that Padilla is a new rule applied only prospectively. Id. at 380. Therefore, pursuant to current state law, a pre-Padilla guilty plea "is not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Id. at 361.
A limited exception to this rule arises when the facts show that the plea attorney materially misled the defendant. See Nuñez-Valdéz, supra, 200 N.J. at 139-42 (discussing factual circumstances where an attorney told the "defendant that there would be no immigration consequences"). That exception is inapplicable here. Defendant's complaint is not that his plea attorney gave him materially erroneous advice, but rather that his counsel told him to consult with a specialist. Thus, he cannot satisfy the first prong.
Defendant is also unable to satisfy the second Strickland prong because he can cannot show that he was prejudiced; the record shows that defendant was well aware that he could be deported as a result of his plea.
Defendant also claims that his PCR counsel was ineffective. Defendant argues that PCR counsel failed to seek an exception to Rule 3:22-12's five-year time limit on considering PCR claims on the basis of excusable neglect. PCR counsel, however, did argue to the PCR court that excusable neglect existed because the reality of deportation took so long. Defendant was not aware of an immigration detainer until years after his guilty plea.
Judge Patricia M. Wild rejected defendant's claim of excusable neglect, but went on to consider the merits of defendant's PCR claim. We affirm her decision to reject defendant's claim of ineffective assistance of plea counsel substantially for the reasons she expressed in her cogent oral decision. Defendant's claim of ineffective assistance of PCR counsel is without sufficient merit to require further discussion in a written opinion. See 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