Opinion
DOCKET NO. A-1559-12T2
04-14-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DWAYNE K. LAWRENCE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Simonelli. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-06-0938 and 08-01-0054. Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Dwayne K. Lawrence appeals from the October 11, 2012 Law Division order, which denied his petition for post-conviction relief (PCR) grounded on the ineffective assistance of counsel. We affirm.
We derive the following facts from the record. On March 4, 2007, defendant and a seventeen-year-old male, A.M.F., took a vehicle belonging to A.L. without her permission. Police officers attempted to stop the vehicle after observing defendant, who was driving, commit motor vehicle violations. Defendant pulled the vehicle to the curb, and he and A.M.F. fled on foot, ignoring the officers' command to stop. When apprehended, defendant disobeyed the officer's command to place his hands behind his back. Following a brief struggle, defendant was subdued and arrested. He told the police that he was born in Puerto Rico.
We use initials to identify other persons involved in this matter to protect their identities.
Defendant was charged under Indictment No. 07-06-00938 with third-degree receiving stolen property, N.J.S.A. 2C:20-7; second-degree use of a seventeen-year-old or younger to commit an offense, N.J.S.A. 2C:24-9(a); fourth-degree resisting arrest by eluding a law enforcement officer, N.J.S.A. 2C:29-2(a)(2); and third-degree resisting arrest by eluding a law enforcement officer, N.J.S.A. 2C:29-2(a)(3). Defendant was charged under Indictment No. 08-01-00054 with third-degree bail jumping, N.J.S.A. 2C:29-7.
In exchange for the State's agreement to recommend an aggregate three-year term of imprisonment, on July 3, 2008, defendant pled guilty under Indictment No. 07-06-00938 to an amended charge of third-degree unlawful taking of a motor vehicle, N.J.S.A. 2C:20-10(b), and fourth-degree resisting arrest by eluding a police officer, and under Indictment No. 08-01-00054 to third-degree bail jumping.
At the plea hearing, defendant acknowledged, under oath, that he initialed and signed the plea forms, where he answered "N/A" to the question that asked whether he understood that if he was not a United States citizen or national he may be deported by virtue of his guilty plea. He also testified, falsely, that he was a United States citizen. The trial judge determined that defendant entered the plea voluntarily and knowingly and understood the nature and consequences of the plea. On October 31, 2008, the judge sentenced defendant in accordance with the plea agreement to a three-year term of imprisonment.
Defendant did not appeal. Instead, on May 11, 2011, he filed a PCR petition, contending that because defense counsel should have realized from reading the pre-sentence report (PSR) that defendant was not a United States citizen, counsel rendered ineffective assistance by failing to adequately inform defendant of the mandatory deportation consequences of his plea. Defendant also argued that defense counsel failed to interview A.L., whom defendant alleged gave him and his teenage passenger permission to drive her vehicle.
The PSR indicated that defendant was born in the country of Dominica in the Caribbean and was a permanent resident alien.
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The PCR judge found that defendant lied to the court and defense counsel about his citizenship status, and counsel did not misinform defendant about the deportation consequences of his plea. The judge also found that because A.L. was present in juvenile court and raised no objection when A.M.F. pled guilty and admitted he had no permission to take her vehicle, defendant could not establish that the result would have been different. The judge concluded that defendant failed to establish either prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)—that counsel's performance was deficient and the deficient performance prejudiced the defense. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
THE [PCR] RELIEF JUDGE ERRED IN FINDING DEFENDANT FAILED TO DEMONSTRATE A PRIMA
FACIE CASE OF INEFFECTIVE ASSISTANCE BASED ON COUNSEL'S FAILURE TO PROVIDE CORRECT ADVICE REGARDING THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA OR INTERVIEW THE COMPLAINING WITNESS. AT MINIMUM, THE COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING.
A. Given that the attorney knew at the time of sentencing that [defendant] was not a citizen, the attorney had a duty to correct the defendant's misapprehension of his citizenship status. Moreover, without an evidentiary hearing, the nature of the conversation counsel and the defendant had once counsel knew there was an immigration issue remains unknown.
B. The judge improperly based his reasons for not holding an evidentiary hearing on two "facts" not borne out in the record.
C. Without a hearing it is impossible to know why the trial attorney failed to interview the complaining witness.
Our Supreme Court has established the standard of review in PCR cases as follows:
Our standard of review is necessarily deferential to a PCR court's factual findings based on its review of live witness testimony. In such circumstances we will uphold the PCR court's findings that are supported by sufficient credible evidence in the record. An appellate court's reading of a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness he [or she] has observed firsthand. Last, we need not defer to a PCR court's interpretation of the law; a legal conclusion is reviewed de novo.
[State v. Nash, 212 N.J. 518, 540-41 (2013) (citations omitted).]
"'[T]o 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.'" State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (second alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (internal quotation marks omitted); see also State v. Parker, 212 N.J. 269, 279 (2012).
The Supreme Court of the United States has held that defense attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea. Padilla v. Kentucky, 559 U.S. 356, 367, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). However, the Court held that Padilla does not apply retroactively. Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013). Our Supreme Court held that Padilla is a new rule to be applied prospectively only. State v. Gaitan, 209 N.J. 339, 371-72 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); see also State v. Santos, 210 N.J. 129, 143 (2012).
Here, defendant pled guilty two years before Padilla. Therefore, his "guilty plea is not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Gaitan, supra, 209 N.J. at 361.
A limited exception to this rule arises when defense counsel provided affirmatively misleading advice about the immigration consequences of a guilty plea. See Nuñez-Valdéz, supra, 200 N.J. at 139-43 (where defense counsel informed the defendant there would be no immigration consequences arising from his plea); see also Santos, supra, 210 N.J. at 143. That exception is inapplicable here because defense counsel did not misinform defendant there would be no immigration consequences arising from his plea; rather, counsel gave no advice at all because deportation was not mandatory at the time of defendant's plea. Accordingly, defendant cannot establish that counsel rendered ineffective assistance by failing to inform him of the mandatory deportation consequences of his plea. See Gaitan, supra, 209 N.J. at 374. In addition, defendant's misrepresentation under oath of his citizenship status constituted invited error, which he cannot challenge on this appeal. See State v. A.R., 213 N.J. 542, 561 (2013).
Nor can defendant establish that counsel rendered ineffective assistance by failing to interview A.L. "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). When claiming defense counsel inadequately investigated his or her case, the defendant "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170 (citing R. 1:6-6). A defendant must demonstrate how a more thorough investigation would have had the likelihood of changing the outcome of the case.
Defendant has failed to meet that burden here. A.L. told the police that she did not give defendant or A.M.F. permission to use her vehicle, and she maintained that position, albeit silently, during A.M.F.'s plea colloquy. Defendant provided no certification from A.L. to demonstrate that she changed her mind. Accordingly, we conclude that defendant has failed to establish a prima facie showing of ineffective assistance of counsel, a result of which no evidentiary hearing was warranted.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION