Opinion
DOCKET NO. A-0606-10T2
01-22-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ABBAS ELCHEIKHALI, a/k/a ABBAS K. ELCHEIKHALI, ABBAS KASEEM ELCHEIKHALI, and RICHIE ELCHEIKHALI, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (David A. Malfitano, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-09-1643.
Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (David A. Malfitano, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Abbas Elcheikhali appeals from the May 5, 2010 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant, who is not an American citizen, claims that his defense attorney misinformed him that his guilty plea to third-degree theft by deception, N.J.S.A. 2C:20-4 and third-degree issuance of a bad check, N.J.S.A. 2C:21-5, would not result in deportation. Because the court judged the credibility of conflicting certifications from defendant and his plea counsel without an evidentiary hearing, we reverse and remand for a hearing.
The judgment of conviction lists the charge as third-degree theft by illegal retention, N.J.S.A. 2C:20-9, although the plea form and indictment list it as third-degree issuance of a bad check, N.J.S.A. 2C:21-5.
In 2004 and 2005, defendant engaged in fraudulent activities connected with the sale of a car including identity theft victimizing the car purchaser. On September 28, 2006, defendant was charged in Bergen County Indictment No. 06-09-1643 with two counts of third-degree theft by deception and three counts of third-degree issuing bad checks. Defendant pled guilty to two counts of the indictment as part of a plea agreement that called for him to pay a total of $28,500 in restitution, including $10,000 from his attorney's trust account to be paid within seven weeks. In exchange, the State agreed to recommend a non-custodial probationary term and dismiss the remaining counts of the indictment.
At the time of sentencing on October 5, 2007, defendant had been arrested for federal and state crimes committed prior to the entry of the guilty plea. He had charges pending in Passaic and Essex Counties and was about to be sentenced in federal court. Counsel and the court agreed on the record, but out of the presence of defendant, that in light of this development, a custodial sentence was required and defendant was sentenced to 365 days in New Jersey State Prison and $25,000 in restitution. The sentence was stayed until after the federal imposition of sentence, and the court indicated that it had no objection to running the sentence concurrent to the federal sentence.
Defendant raises the following issues on appeal:
POINT I: THE PCR COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF DEFENDANT'S CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE FOR MISINFORMING HIM OF THE DEPORTATION CONSEQUENCES OF HIS GUILTY PLEA.
POINT II: THE PCR COURT COMMITTED REVERSIBLE ERROR BY APPLYING A R. 3:22-4 PROCEDURAL BAR TO DEFENDANT'S CLAIM THAT TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE BY FAILING TO RAISE A DOUBLE JEOPARDY CLAIM.
POINT III: DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY ASSENTING TO A MORE SEVERE SENTENCE THAN PROVIDED FOR IN THE PLEA AGREEMENT. (PARTIALLY RAISED BELOW).
POINT IV: DEFENDANT RE-ASSERTS ALL POINTS RAISED BELOW IN SUPPORT OF HIS PETITION FOR POST-CONVICTION RELIEF.
Our Supreme Court has recently reviewed the Strickland standard for ineffective assistance of counsel claims in the PCR context. State v. Parker, 212 N.J. 269 (2012). The Court emphasized that when a defendant brings such a claim,
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
the trial judge assigned to handle [a] defendant's petition views those contentions against a well-settled standard, one that is identical under both the United States Constitution and the New Jersey Constitution.
The defendant must demonstrate first that counsel's performance was deficient, i.e., that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. In making that demonstration, a defendant must overcome a strong presumption that counsel rendered reasonable professional assistance.
A showing of deficient performance, standing by itself, is insufficient. In addition, a defendant must also establish that the ineffectiveness of his attorney prejudiced his defense. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. If defendant establishes one prong of the Strickland-Fritz standard, but not the other, his claim will be unsuccessful.
[Id. at 279-80 (citations and internal quotation marks omitted).]
I
Defendant asserts that he was entitled to an evidentiary hearing on his claim that his attorney told him he would not be deported as a result of his guilty plea. At the plea hearing, in response to questioning by the court, defendant indicated that he was a citizen of Lebanon. In his PCR petition, defendant certified "that trial counsel advised me that I would not be subject to deportation should I plead guilty." The State provided the court with a certification from defense counsel stating, in pertinent part, that:
Defendant's initial handwritten PCR petition submitted before he obtained counsel indicated in ungrammatical English that the judge, prosecutor and defense counsel did not notify him that he might face deportation.
2. Defendant claims that I advised him that he would not be deported on his guilty plea in this matter.
3. This does not accurately reflect my advice to Defendant. Defendant, at the time of his plea had other indictable cases pending in Passaic County, Essex County and Federal Court.
4. In light of these other matters, and his prior criminal history, I told him that I thought that he would very likely face deportation.
5. Furthermore, in my reviewing the Plea Form with Defendant, I again told defendant
that he could face deportation. This specific question was also asked by the Judge when defendant entered his guilty plea.
6. I also told him that he should consult an immigration attorney regarding deportation and I gave him a specific recommendation of an immigration attorney.
7. Defendant indicated that he was not worried about being deported.
The plea transcript does not indicate that the court informed defendant of any deportation consequences of his guilty plea.
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In addressing this issue, the PCR court indicated:
Petitioner's trial attorney has, however, submitted a certification confirming that he informed the defendant that it was, quote, "very likely" that defendant would be deported in light of his criminal history.
Additionally, and I think this really adds significant credibility to counsel's certification, the plea form that was signed by defendant on Question 17, which asks if defendant understands that, quote, "If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty," and the answer "yes" was circled on that plea form and the plea form was signed by the defendant.
And at the plea hearing, the judge specifically asked petitioner if he had time to discuss with his attorney all the issues and all the questions on the plea form. And the petitioner answered yes.
The judge then asked the petitioner two more times if he was sure he had spoken to an attorney and whether the petitioner was satisfied with the amount of time he had had
to speak with his attorney. The petitioner answered yes to all three questions as well.
So based on the trial counsel's certification, which is consistent with the fact that petitioner answered Question 17 of the signed plea form, and the colloquy between the judge and the petitioner . . . , the petitioner has failed to establish a prima facie case of ineffective assistance of counsel.
Because the PCR court relied on defense counsel's certification, it should have granted an evidentiary hearing to resolve the disputed issues of material fact presented by defendant's and his plea counsel's conflicting certifications. If defense counsel had misinformed defendant, defendant might have met his burden of demonstrating that he would not have pled guilty but for this misrepresentation. State v. Preciose, 129 N.J. 451, 462-63 (1992). Although defendant pled guilty prior to our Supreme Court's decision in State v. Nu ñez-Valdéz, 200 N.J. 129 (2009), as the State concedes in its brief, "when an attorney gives false or misleading information regarding deportation, a ground for ineffective assistance of counsel exists if both prongs of the Strickland test are satisfied." (Citing State v. Garcia, 320 N.J. Super. 332, 340 (App. Div. 1999) and State v. Chung, 210 N.J. Super. 427, 434-37 (App. Div. 1986)). Defendant's affirmative answer to the written question on the plea form was not the only basis for the court's rejection of his claim that his lawyer misinformed him regarding the deportation consequences of his guilty plea. In making its decision, the court afforded counsel's certification greater credibility than that of defendant without any testimony.
"[A]n appellate court 'should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" Nu ñez-Valdéz, supra, 200 N.J. at 141 (quoting State v. Elders, 192 N.J. 224, 244 (2007)).
Here, the PCR court did not have an opportunity to assess the credibility of the witnesses through live testimony, including cross-examination. See Jamgochian v. N.J. State Parole Bd., 394 N.J. Super. 517, 536 (App. Div. 2007) (emphasizing "[t]he importance of cross-examination, 'one of the greatest engines that the skilled man has ever invented[,]' for ascertaining the truth of a matter" (quoting 6 Wigmore on Evidence § 1838 (Chadbourn Rev. 1976))), aff'd as modified, 196 N.J. 222 (2008). Defendant also certified that he would not have pled guilty had his counsel not misinformed him regarding the deportation consequences of his guilty plea, thus satisfying the second prong of the Strickland test on a prima facie level.
II
Defendant's allegation that his attorney was ineffective for failing to attack his State charges on double jeopardy grounds is procedurally barred as well as meritless. As the PCR court indicated, "[PCR] is not a substitute for [a] direct appeal." State v. Echols, 199 N.J. 344, 357 (2009) (citation omitted); R. 3:22-3. Defendant chose not to file a direct appeal.
III
Defendant alleges that his counsel was ineffective also in agreeing to an amendment to his original noncustodial sentence agreement. Defense counsel, the State and the court agreed that defendant was subject to N.J.S.A. 2C:44-5(f)(1), which states:
f. Suspension of sentence or probation and imprisonment; multiple terms of suspension and probation. When a defendant is sentenced for more than one offense or a defendant already under sentence is sentenced for another offense committed prior to the former sentence:
(1) The court shall not sentence to probation a defendant who is under sentence of imprisonment[.]
Although defendant had not yet been sentenced in federal court, he was apparently facing a custodial term. Counsel and the court agreed to a custodial sentence shorter than the federal sentence and concurrent to it, with the aim of accomplishing the plea agreement's intended goal of a non-custodial term on these charges. After the sentence, defendant expressed his gratitude for the sentence imposed, which he has now completed. We thus determine that any failure to fully include defendant in the renegotiated plea was harmless, R. 2:10-2, and does not impugn the integrity of the conviction. Defendant can not demonstrate that he would not have pled guilty had he known of this inconsequential modification in his sentence which was necessitated by his subsequent arrests.
Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION