Opinion
DOCKET NO. A-0329-10T1
05-29-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. UCHE N. ADIM, Defendant-Appellant.
Ferro & Ferro, attorneys for appellant (Nancy C. Ferro, on the briefs). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 99-05-0574.
Ferro & Ferro, attorneys for appellant (Nancy C. Ferro, on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Uche N. Adim appeals from an August 4, 2010 Law Division order that denied his petition for post-conviction relief (PCR). In his petition, defendant asserted that trial counsel rendered ineffective assistance by failing to advise him that his guilty plea to drug distribution charges would subject him to mandatory deportation. Defendant's PCR petition also asserted that had he known he faced mandatory deportation, he would not have entered a plea of guilty, and, for that reason, the judge shall have permitted him to withdraw his guilty plea. We agree with the judge's determination that at the time defendant pled guilty and was sentenced, namely, in 1999 and 2000, counsel had no duty to advise defendant of the deportation consequences of his guilty plea. We also agree with the judge's conclusion that defendant failed to establish an entitlement to the withdrawal of his guilty plea. We affirm.
I.
In January 1988, defendant arrived in the United States as a non-immigrant visitor. Defendant, an Austrian native, is a Nigerian citizen. His visa permitted him to remain in the United States for six months, requiring him to leave by July 29, 1988. Defendant did not leave the United States after the six-month period specified by the visa, and instead, remained in this country illegally.
On February 23, March 1, and March 17, 1999, defendant was arrested in Barnegat Township for selling cocaine. On May 4, 1999, an Ocean County grand jury returned a fifteen-count indictment charging defendant with ten counts of narcotics violations arising out of those three arrests, and five counts of resisting arrest and hindering apprehension. On November 8, 1999, defendant entered into a negotiated plea agreement with the State, pleading guilty to three counts of distribution of CDS and one count of fourth-degree obstructing administration of law, in return for the State's agreement to dismiss the remaining eleven counts and recommend a concurrent probationary sentence with 364 days to be served in the Ocean County Jail.
During the November 8, 1999 plea colloquy, defendant admitted under oath that he reviewed the plea form with his attorney. In that plea form, defendant answered "Yes" in response to the seventeenth question, 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?" In response to the judge's questions, defendant acknowledged that he was pleading guilty freely and voluntarily, that he was satisfied with his attorney's advice, and that he had no questions about his plea. Defendant then provided a factual basis for his guilty plea, admitting that he distributed cocaine on the three dates in question, and that he obstructed the administration of law by refusing to provide the police with a set of fingerprints.
The presentence report (PSR) prepared in anticipation of sentencing contained a section designated "Alien Status." The person preparing the PSR commented that defendant's "alien status" was "unknown" because defendant "failed to supply info." In the section of the PSR asking about "citizenship," both "U.S." and "Other" were left blank, as was the section entitled "Other Citizenship (Nationality)." Another section of the PSR stated:
Deft. was born in Austria. He moved to Africa as a child. He has also resided in London. Deft. has resided in the U.S. since 1989. . . .
Defendant was sentenced on February 4, 2000, pursuant to the plea agreement. Neither the judge nor defense counsel made any mention of defendant's citizenship status.
Although the record does not specify how defendant came to the attention of the immigration authorities, he was ultimately arrested by immigration officials on January 25, 2010, pursuant to an Immigration and Customs Enforcement Agency (ICE) detainer. On January 27, 2010, ICE initiated removal proceedings against defendant. The complaint filed by ICE sought defendant's removal from the United States for two reasons: 1) he remained in the United States beyond July 29, 1988 without authorization; and 2) he was convicted of distribution of cocaine under Indictment No. 99-05-0574 on February 4, 2000.
On February 23, 2010, defendant filed the PCR petition that is the subject of this appeal. Defendant waived his appearance at the hearing, and filed a certification permitting his attorney to proceed on his behalf.
In an oral opinion, the judge rejected defendant's claim that trial counsel rendered ineffective assistance by failing to advise defendant of the deportation consequences of his guilty plea. The judge held that defendant had received effective assistance because counsel acted properly by relying on the plea form in existence at that time, which stated merely that if defendant was not a United States citizen, he "may" be deported by virtue of his guilty plea. The judge also reasoned that the two opinions on which defendant had relied, State v. Nunez-Valdez, 200 N.J. 129, 144 (2009), and Padilla v. Kentucky, 559 U.S. ___, ___, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 296 (2010), were not retroactive and, for that reason, trial counsel had no obligation in 2000 to render legal advice on the subject of deportation.
Turning to defendant's motion to withdraw his guilty plea, the judge applied the four-prong test the Court articulated in State v. Slater, 198 N.J. 145, 157-58 (2009). As to those factors, the judge found: defendant had not, as required by Slater, asserted a colorable claim of innocence, instead merely stating that he sought to vacate the plea because he did want to be deported; the nature and strength of defendant's reasons for withdrawing his guilty plea were inadequate, as defendant was aware at the time entered his guilty plea that he had remained in the United States unlawfully for more than eleven years in violation of his six-month visa; defendant's conviction resulted from a negotiated plea, which should not be disturbed lightly; and permitting the withdrawal of defendant's guilty plea would result in unfair prejudice to the State and an unfair advantage to defendant, as more than eleven years had passed since defendant's arrest, memories had faded, and one of the sergeants making the arrest had since died. The judge signed a confirming order on August 4, 2010 denying defendant's PCR petition.
On appeal, defendant raises the following claims:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPLICATION TO WITHDRAW HIS GUILTY PLEA.
A. The Court Should Have Granted Relief Based on the Nature of the Application, Which Was an Application to Withdraw the Guilty Plea.
B. Even Analyzing Defendant's Application as a Traditional PCR, the Court Should Have Granted Relief or a Hearing.
II.
We begin by addressing defendant's first argument, in which he asserts that the judge committed reversible error when he denied defendant's motion to withdraw his guilty plea. When evaluating a motion to vacate a guilty plea, a court must consider and balance four factors:
(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.A court should consider these same four factors regardless of whether a defendant seeks to withdraw his guilty plea before or after sentencing; however, motions filed prior to sentencing are subject to the "interest of justice" standard in Rule 3:9-3(e), while motions presented after a defendant has already been sentenced are governing by the far more demanding "manifest injustice" standard in Rule 3:21-1. Id. at 158.
[Slater, supra, 198 N.J. at 157-58.]
We agree with the PCR judge's determination that none of the four Slater factors weighed in defendant's favor. First, as the State correctly argues, "defendant has not asserted any claim of innocence, let alone a colorable claim. This factor thus clearly weighs against him."
Applying the second prong, we conclude that defendant has not suffered a "manifest injustice" that requires permitting him to withdraw his guilty plea. As we have noted, even if defendant had not pled guilty and been convicted of this charge, ICE was entitled to seek defendant's removal from the United States based upon his patent violation of his visitors visa which required him to leave the United States in July 1988.
Moreover, we do not agree with defendant's assertion that the "change in law on the plea form regarding deportation" and his "lack of knowledge of the immigration consequence of his plea" constitute the "manifest injustice" required by Rule 3:21-1. Defendant does not contend that his attorney provided misleading or incorrect information. Additionally, at the time defendant was interviewed for the PSR, he refused to supply any information on his citizenship status in an apparent attempt to elude deportation. That silence prevented both his attorney and the judge from providing any additional information on the deportation consequence of defendant's plea beyond what defendant acknowledged in answer to the seventeenth question on the plea form. For all of these reasons, we agree with the judge's conclusion that defendant has provided neither a strong nor compelling reason to withdraw his plea, and has failed to satisfy the second Slater prong.
As for the third prong, the existence or non-existence of a plea bargain, this factor too weighs against defendant, as his plea did result from an agreement with the State, which a court should be hesitant to overturn. State v. Smullen, 118 N.J. 408, 418 (1990).
As for the fourth Slater prong, the eleven-year delay has hampered the State's ability to present a strong case against defendant at trial. Presenting proofs on defendant's narcotics charges, occurring on three separate dates, would certainly result in prejudice to the State, especially because one of its witnesses has died. We agree with the PCR judge's analysis of the Slater factors, and affirm his denial of defendant's motion to withdraw his guilty plea.
III.
In defendant's second point, he argues that trial counsel rendered ineffective assistance by failing to offer any advice on the deportation consequences of defendant's guilty plea. Quite simply, trial counsel had no such duty in 1999 at the time defendant entered his plea, or in 2000 when defendant was sentenced. Our Supreme Court has held that, prior to March 31, 2010, the day Padilla, supra, 559 U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284, was decided, the Sixth Amendment did not require criminal defense counsel to provide advice to their noncitizen clients regarding the deportation consequences of their guilty pleas. State v. Gaitan, 209 N.J. 339, 372 (2012). PCR counsel acknowledged as much when he commented at the PCR hearing:
I was in the arena in 1999 with the [plea] forms and I was advising defendants. To this date, I've only known one attorney that indicated to me that he routinely advised defendants that it was mandatory immigration [sic]. I don't think, quite frankly, criminal defense attorneys in 1999, aside from what was on the [plea] form or if there would have been something highlighted by a client[,] that they even gave a thought further with respect to that issue. We didn't even know that immigration had two M's until after -- after 9/11.
As trial counsel had no duty in 2000 to advise a defendant on the deportation consequences of a guilty plea, such omission cannot satisfy the standard for ineffective assistance of counsel imposed by Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). We affirm the rejection of defendant's claim of ineffective assistance of counsel.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION