Opinion
DOCKET NO. A-4049-12T2
08-06-2014
STATE OF NEW JERSEY, Plaintiff-Respondent v. EZRA GEORGE CLARK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Maven. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-04-0399. Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Ezra George Clark appeals from an order entered by the Law Division on January 25, 2013, denying his petition for post-conviction relief (PCR). We affirm.
I.
Defendant was charged under Passaic County Indictment No. 04-04-0399, with fourth-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(3) (count one); fourth-degree distribution of a CDS, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35—5(b)(12) (counts two, four and six); third-degree distribution of a CDS within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a) (counts three, five and seven); third-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-5(b)(11) (count eight); and third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (count nine).
On October 22, 2009, defendant pled guilty to count three of Indictment No. 04-04-0399, charging third-degree distribution of CDS within 1000 feet of school property. He also pled guilty to third-degree hindering apprehension, as charged in Indictment No. 04-10-1478, and third-degree possession of a CDS with intent to distribute within 1000 feet of school property, as charged in Indictment No. 05-02-0096.
The State agreed to recommend a five-year term of incarceration, with an eighteen-month period of parole ineligibility, on Indictment No. 04-04-0399; a five-year term, with fifteen months of parole ineligibility, on Indictment No. 05-02-0096; and a flat, three-year term on Indictment No. 04-10-1478. In addition, defendant agreed to the forfeiture of monies seized in connection with the charges.
Thereafter, the court sentenced defendant to an aggregate term of five years of incarceration, with an eighteen-month period of parole ineligibility, and dismissed various other charges. The court entered a judgment of conviction dated January 12, 2010. Defendant did not appeal.
In August 2010, defendant filed a motion for reconsideration of the sentence. The court denied the motion. In October 2010, defendant filed a motion to modify his sentence. The court granted that motion, changing the parole ineligibility term previously imposed to time served.
On September 26, 2011, defendant filed a PCR petition, claiming that he had been denied the effective assistance of trial counsel because counsel failed to affirmatively inform him of the immigration consequences of the plea and because counsel misinformed him about a material term of the plea agreement. He also claimed that re-sentencing counsel was ineffective because he did not correctly inform him of the deportation consequences of the previously-entered guilty plea.
The PCR court considered defendant's petition on January 25, 2013. The court found that defendant had not established that he was denied the effective assistance of counsel and entered an order denying PCR. This appeal followed.
Defendant raises the following arguments for our consideration:
POINT ONE
AN EVIDENTIARY HEARING IS NECESSARY TO DETERMINE WHETHER THE DEFENDANT'S TRIAL ATTORNEY PROVIDED INACCURATE ADVICE REGARDING THE MANNER IN WHICH THE GUILTY PLEAS WOULD IMPACT THE DEFENDANT'S IMMIGRATION STATUS.
POINT TWO
THE DEFENDANT'S TRIAL ATTORNEY DID NOT CORRECTLY INFORM THE DEFENDANT OF A MATERIAL TERM OF THE PLEA AGREEMENT AND THE TRIAL COURT DID NOT CURE THE DEFICIENCY DURING ITS COLLOQUY WITH THE DEFENDANT AT SENTENCING.
POINT THREE
THE DEFENDANT'S MOTION ATTORNEY WAS DEFICIENT WHERE HE FAILED TO INFORM THE DEFENDANT THAT HIS GUILTY PLEAS PERMANENTLY BARRED HIM FROM RETURNING TO THE UNITED STATES.
II.
Defendant contends that he was denied the effective assistance of counsel. Defendant claims his trial attorney gave him inaccurate advice concerning the immigration consequences of his plea. He also claims his trial attorney failed to inform him of a material term of the plea agreement, specifically his sentence. In addition, defendant claims that his motion attorney failed to inform him of the immigration consequences of his plea.
To prevail on a claim of ineffective assistance of counsel, defendant must satisfy the two-part test 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). Defendant must establish that his counsel's performance was deficient, and that counsel's deficient performance prejudiced his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Furthermore, in the context of a guilty plea, the defendant must show that his attorney provided constitutionally ineffective assistance and "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." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). See also State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).
A. Representation Provided Concerning the Plea.
Defendant argues that his attorney was ineffective because he failed to advise him that, if he pled guilty to violating N.J.S.A. 2C:35-7, the resulting conviction would be for an "aggravated felony" under 8 U.S.C.A. § 1101(a)(43)(B). Defendant says that the conviction subjects him to mandatory removal from the United States, and precludes him from ever returning to this country.
"Removal" is the current statutory term for what was previously referred to as "deportation." State v. Gaitan, 209 N.J. 339, 345 n.1 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).
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In Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010), the Court held that plea counsel is required to inform the defendant whether the plea carried a risk of deportation. However, the rule announced in Padilla does not apply to convictions that were final when Padilla was decided. Chaidez v. United States, ___ U.S. ___, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013); Gaitan, supra, 209 N.J. at 372.
In this matter, defendant entered his plea in 2009. At that time, plea counsel was not required to advise defendant concerning the removal consequences of a plea, but counsel would be deficient if counsel "provide[d] false or misleading [material] information concerning the deportation consequences of a plea of guilty." State v. Nunez-Valdez, 200 N.J. 129, 138 (2009).
At the plea hearing, defendant said that he understood the English language and he told the court he did not require an interpreter. Defendant's attorney stated that he reviewed the entire plea form with defendant. Counsel said he read the questions on the form to defendant and circled defendant's answers to the questions. Defendant stated that he understood the questions and the corresponding answers on the form.
In response to Question 17a on the plea form, defendant indicated that he was not a citizen of the United States. Question 17b asked whether defendant understood that, if he is not a United States citizen or national, he could be deported by virtue of his plea of guilty. Defendant answered "Yes" to this question.
Defendant also answered "Yes" to Question 17c, which asked whether he understood that if he pled guilty to a crime considered an "aggravated felony" under federal law, he "will be subject to deportation/removal?" In addition, Question 17d asked whether defendant understood he had the right to seek legal advice concerning his immigration status before he entered the plea. Defendant answered was "Yes."
Moreover, at the plea hearing, the court questioned defendant concerning the plea form. The following colloquy ensued:
THE COURT: Are you a citizen?
THE DEFENDANT: No, sir.
THE COURT: Then most importantly, I'm going to go through one of the pages of the plea form and ask you that you understand that if you are not a U.S. — a United States citizen or national, you may be deported by virtue of your plea of guilty.
THE DEFENDANT: Yes, sir.
THE COURT: Also, you understand that if your plea of guilty is to a crime considered an aggravated felony, under federal law, you will be subject to deportation or removal.
THE DEFENDANT: Yes, sir.
THE COURT: And also, do you understand that you have the right to seek legal advice on your immigration status before finishing your plea today?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. Knowing that, do you still want to plead guilty —
THE DEFENDANT: Yes, sir.
THE COURT: — that you may be deported or you will be deported?
THE DEFENDANT: Yes, sir.
The record therefore shows that plea counsel did not provide defendant with any false or misleading advice concerning the deportation consequences of his plea.
Defendant argues that a mere review of the plea form is not determinative of whether defendant asked his attorney questions as to the manner in which his guilty plea affected his immigration status. He contends that an evidentiary hearing is required to determine the advice that counsel provided to him.
However, an evidentiary hearing is not required unless defendant establishes "a prima facie case in support of [PCR], a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief." R. 3:22-10(b); State v. Porter, 216 N.J. 343, 354 (2013).
Here, defendant failed to establish a prima facie case of ineffective assistance of counsel regarding the advice provided concerning the plea, and the claim can be resolved by reference to the record of the plea hearing. Thus, an evidentiary hearing was not required.
B. Advice Concerning the Plea Agreement.
Defendant also claims that plea counsel was ineffective because he failed to correctly inform him concerning a material term of the agreement, specifically the sentence to which he would be exposed. Defendant asserts that his attorney informed him at the plea hearing that his maximum exposure would be three years of incarceration with an eighteen-month period of parole ineligibility. Defendant says that, had he known the State would recommend a five-year term of incarceration, he would not have pled guilty. The record does not support defendant's assertions.
The plea agreement expressly notes that the State would recommend a five-year term, with eighteen months of parole ineligibility, for the charges in Indictment No. 04-04-0399. At the plea hearing on October 22, 2009, the assistant prosecutor reviewed the terms of the agreement, and set forth the sentences that could be imposed. The court indicated that the sentences imposed on Indictments Nos. 04-10-1478 and 05-02-0096 would be concurrent to the sentence imposed on Indictment No. 04-04-0399.
When questioned by the court, defendant said he understood the terms of the agreement. Thus, the plea agreement and the record of the plea hearing make clear that defendant was never misinformed as to the sentences that could be imposed if he pled guilty.
We note that, at the sentencing on January 12, 2010, defendant's counsel stated that, when he reviewed the presentence report (PSR) with defendant, he mistakenly indicated that the agreed-upon sentence was three years with an eighteen-month period of parole disqualification. Counsel said the first page of the PSR indicated that the recommended sentence was three years, with an eighteen-month parole disqualifier. Counsel then corrected the mistake. He referred to his notes from the plea hearing and said that the agreed-upon sentence was five years with eighteen months of parole ineligibility.
The court then listened to the audio tape of the plea hearing. The court determined that the plea form that defendant initialed and signed stated that he could be sentenced on Indictment No. 04-04-0399 to a term of five years with an eighteen-month parole disqualifier.
The court also noted that the record shows that the sentences to be imposed on Indictments Nos. 04-10-1478 and 05-02-0096 would be concurrent to the sentence on Indictment No. 04-04-0399. The court found that, when defendant entered the plea, he understood that he could be sentenced to an aggregate term of five years, with eighteen months of parole ineligibility.
The following colloquy between the court, defendant and defense counsel then ensued:
THE COURT: Do you understand your sentence here? You tell me what your sentence is. Right now as you stand here, tell me what you understand your sentence is going to be.
DEFENDANT: 18 with five.
DEFENSE COUNSEL: Right. You understand that: correct?
DEFENDANT: Yes.
. . . .
THE COURT: Okay. Can we proceed with your sentencing, or do you want to argue any further that you didn't understand?
DEFENDANT: No, not argue any further.
THE COURT: Do you understand my ruling?
DEFENDANT: Yes.
THE COURT: That I find that you did understand your plea at that time, right?
DEFENDANT: Yes.
THE COURT: You still want to take this plea?
DEFENDANT: Yes.
The record therefore shows that defendant was not misinformed concerning the sentences that could be imposed if he pled guilty. The erroneous statement of defendant's attorney prior to sentencing has no bearing as to whether defendant was correctly advised concerning the agreement before he entered the plea. Thus, defendant's claim that he was denied the effective assistance of counsel with regard to the advice rendered concerning the sentence is entirely without merit.
C. Advice Provided by Motion Counsel.
In addition, defendant claims that the attorney who handled his motions to reconsider the sentence and to reduce or change the sentence failed to provide constitutionally adequate representation. Defendant asserts that the motion attorney only understood that defendant wanted to be released from jail earlier so that he could return to Jamaica or resume his life in the United States.
Defendant says that the motion attorney disregarded his desire to withdraw the guilty plea after he discovered that it required his removal from this country. He says his motion attorney did not consider that he wanted to return to the United States after removal in order to legally resolve his immigration status.
He asserts that motion counsel did not "clarify" that the federal immigration laws required his mandatory removal, and defendant did not understand the effect mandatory removal would have on his immigration status. He claims his attorney was obligated "to correct" this "misunderstanding."
We are convinced, however, that even if counsel erred in failing to provide the advice defendant says he required, defendant was not prejudiced by any such error. The immigration consequences with which defendant was concerned were the result of the plea he agreed to in October 2009. As we have explained, defendant was afforded constitutionally adequate representation regarding the plea and his claim of ineffective assistance by plea counsel is meritless. Any subsequent error on the part of motion counsel had no bearing on the plea agreement or the immigration consequences resulting from the plea.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELJATE DIVISION