Opinion
DOCKET NO. A-1126-12T2
05-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MOHAMED ALY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-01-0040. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, 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 Mohamed Aly appeals the Law Division's denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Having reviewed the record in light of applicable law, we affirm.
I.
After the trial court denied his motion to suppress evidence, defendant pled guilty to second-degree possession of a controlled dangerous substance (CDS) with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) or (2). The trial court thereafter sentenced defendant as a third-degree offender and imposed a three-year term of incarceration. In an unpublished opinion, we affirmed the trial court's denial of defendant's motion to suppress. State v. Aly, No. A-5468-09 (App. Div. Aug. 2, 2011). The facts that gave rise to defendant's arrest and guilty plea are set forth in our earlier opinion and will not be repeated.
Defendant filed a petition for PCR on July 31, 2012. Defendant agreed, in writing, to waive his appearance at oral argument. Following argument, the PCR judge, without an evidentiary hearing, denied defendant's petition in a comprehensive oral opinion. In his petition, defendant contended that he was never properly informed "with respect to any impact his guilty plea would have on his immigration status," asserting he was misadvised by his attorney. Defendant represents he would not have pled guilty and "would have otherwise taken such charge to trial." Defendant also asserts that he was at least entitled to an evidentiary hearing to fully address his argument. During the course of defendant's case, he was represented by several attorneys.
Defendant represents that after his arrest, he and his family retained attorney Paul W. Bergrin, who was subsequently indicted in Federal Court, as a result of which defendant sought new counsel. Defendant contends that Bergrin told him that he had immigration experience with former clients and, even if defendant took a plea to his most severe charge, possession of CDS with intent to distribute, he would not face removal from the United States. Defendant claims that he relied on that advice.
Prior to being indicted, defendant obtained the services of Richard Preston of the Public Defender's office. Defendant represents that Preston told him that a conviction could carry deportation consequences. Defendant states that he told Preston about his conversations with his former counsel, and that Bergrin had told him that a conviction of the charges for which he was arrested would not render him subject to deportation.
Defendant contends that Preston simply agreed and told him that Bergrin had experience in the field, and knew what he was talking about with respect to deportation matters. Other than defendant's bald assertions concerning the supposed statements by Bergrin and Preston, defendant did not provide the PCR judge with an affidavit or any other evidentiary material supporting his claims as to the advice provided by Bergrin and Preston.
As part of his plea colloquy, defendant acknowledged that plea counsel, Preston, submitted a plea form to the court and that he reviewed the form with Preston. In the plea form, which was signed and initialed by defendant, specifically his answers to question 17, defendant represented that he was not a United States citizen, he understood he may be deported by virtue of his plea of guilty, he understood he will be subject to deportation/removal if he pleads guilty to a crime considered an "aggravated felony" under Federal law, and he understood that he has the right to seek legal advice on his immigration status prior to entering a plea of guilty.
During the plea colloquy between the court and defendant, the judge specifically addressed the issues concerning defendant's immigration status. The judge told defendant that because he was not a citizen, "when someone who is not a citizen of the United States is convicted of a crime, it is possible that the immigration authorities will move to deport them. Do you understand that?" Defendant answered, "Yes."
Next, the judge pointed out that if immigration authorities seek to deport him, that the Law Division would not be involved in that proceeding, but that it was the court's obligation "to warn you that it is a possibility that if you are not a citizen you could face deportation." Again, defendant acknowledged that he understood. The court then asked defendant if he talked to his attorney about this issue, to which defendant replied, "Yes." At no point in the proceedings did either defendant or Preston advise the State or the court that defendant had received any immigration advice that he would not be deported. At sentencing, defendant was represented by a third lawyer, Steven D. Altman.
At PCR oral argument, PCR counsel, Raymond G. Lahoud, argued that defendant's contention that Bergrin advised him that he would not be deported, was misinformation, and therefore constituted ineffective assistance of counsel. Lahoud contended that defendant's plea counsel, Preston, simply "reaffirmed what Mr. Bergrin had told the defendant," with regard to the immigration consequences. With regard to this representation, the PCR judge noted that the only support is defendant's affidavit and there is no other corroboration.
In denying defendant's petition, the judge found that "there is no misinformation that was given at the time of the plea, and that there was no misinformation in the court's instruction to the defendant." The judge noted that Bergrin's representation of defendant commenced shortly after defendant's arrest and ended prior to his indictment. Further, the PCR judge related that Altman stated to the court at sentencing that a detainer will be lodged against defendant because once defendant completes his State sentence, "when he's paroled, he's going to be sent to Newark, and he is going to be deported." The PCR judge determined that the statement by Altman evinces that defendant was aware of the immigration consequences at the time of entering his plea.
The PCR judge pointed out that if Bergrin had given defendant the wrong information, it was not mentioned by defendant, plea or sentencing counsel throughout the proceedings:
nothing was ever said, it was never an issue at the time of the plea, at the time [question] 17A [of the plea form] being answered, at the time of the colloquy with the court, during that five month period . . . before we got the date of sentencing, at the date of sentencing, nothing was ever said.
The judge found that defendant's representations were "a bald face assertion," and therefore did not require an evidentiary hearing. Further, the judge found defendant "was never misinformed about the consequences of his plea." Moreover, the judge determined defendant's plea was entered voluntarily, including "his intelligent understanding of the fact that he faced the [] possibility at that time of deportation." The judge concluded that defendant had not made a prima facie case for PCR, "and therefore, his post-conviction relief is denied." It is from that decision that defendant appeals.
II.
On appeal, defendant presents the following issue for our consideration:
POINT IWe are satisfied from our review of the record that this contention is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add the following comments.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WAS ENTITLED TO WITHDRAW HIS GUILTY PLEA ON THE BASIS THAT HE HAD FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL REGARDING THE DEPORTATION CONSEQUENCES ARISING OUT OF HIS GUILTY PLEA, RESULTING IN A GUILTY PLEA WHICH HAD NOT BEEN FREELY, KNOWINGLY AND VOLUNTARILY ENTERED.
We turn to defendant's argument that his PCR claim was erroneously denied without an evidentiary hearing. Having reviewed the record and applicable law, we conclude that his petition was properly denied by the PCR court without an evidentiary hearing.
We review the PCR court's findings of fact under a clear error standard, and conclusions of law under a de novo standard. See State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). However, where, as in this case, "no evidentiary hearing has been held, we 'may exercise de novo review over the factual inferences drawn from the documentary record by the PCR judge.'" State v. Reevey, 417 N.J. Super. 134, 146-47 (App. Div. 2010), cert. denied, 206 N.J. 64 (2011) (quoting Harris, supra, 181 N.J. at 420).
First, defendant argues his claim of ineffective assistance of counsel was improperly denied without an evidentiary hearing. We disagree. Rule 3:22-10(b) states "[a] defendant shall be entitled to an evidentiary hearing only upon establishment of a prima facie case in support of post-conviction relief." "To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland v. Washington and United States v. Cronic, which [the Court] adopted in State v. Fritz, 105 N.J. 42, 58 (1987)." State v. Preciose, 129 N.J. 451, 463 (1992) (citations omitted).
Under the Strickland standard, a petitioner must show counsel's performance was both deficient and prejudicial. State v. Martini, 160 N.J. 248, 264 (1999). The performance of counsel is "deficient" if it falls "below an objective standard of reasonableness" measured by "prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674, 693-94 (1984). Counsel's performance is "prejudicial" only if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. As with a summary judgment motion, a PCR court deciding whether to grant an evidentiary hearing "should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Preciose, supra, 129 N.J. at 462-463.
Defendant contends Bergrin and Preston misinformed him of the immigration consequences of a guilty plea. He further argues that, in the absence of any evidence to the contrary, his allegation should be enough to establish a prima facie case. This argument fails because it is the PCR petitioner, not the State, who bears the burden of demonstrating a prima facie case. Defendant's bald assertion of ineffective assistance, uncorroborated by any other evidence in the record, is clearly not sufficient. See State v. Santos, 210 N.J. 129, 144 (2012). Also, defendant's failure to contest, at any stage of the proceedings, that he was subject to deportation proceedings and his acknowledgment of deportation consequences during the plea hearing, belies his bald assertion that he was given deportation misinformation.
For those reasons, we agree with the PCR court that defendant failed to present a prima facie case of ineffective assistance of counsel. Further, an evidentiary hearing would not have aided the PCR court's analysis of defendant's entitlement to PCR. R. 3:22-10(e)(1). Therefore, the PCR judge did not err in denying defendant an evidentiary hearing with respect to his ineffective assistance claim based on attorney misinformation.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION