Opinion
DOCKET NO. A-2327-14T4
05-18-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. AMEIKA TASEIKA MULLINGS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief). Gubir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Leone. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 07-03-0488 and 07-10-1640. Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief). Gubir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Ameika Taseika Mullings appeals from an October 8, 2014 Law Division order denying her petition for post— conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
On December 23, 2006, defendant was arrested for shoplifting at a local shopping mall, striking a security guard in the head with a cell phone, and attempting to flee the scene by car. She was indicted on charges of first-degree robbery, N.J.S.A. 2C:15-1(a)(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count two); second-degree eluding, N.J.S.A. 2C:29-2(b) (count three); and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a) (count four). Thereafter, defendant was indicted on an additional charge of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5), for twisting an officer's wrist while in custody.
Although the indictment lists this aggravated-assault charge as a second-degree offense, N.J.S.A. 2:12-1 clearly sets forth that offenses charged under subsection -1(b)(5) are crimes of either the third or fourth degree, depending on whether the victim suffered bodily injury.
Defendant entered into a negotiated plea agreement with the State, whereby she agreed to plead guilty to counts one and three of the first indictment. In exchange for defendant's guilty plea, the State agreed to dismiss counts two and four of the first indictment, and recommend that defendant be sentenced as a third-degree offender with a maximum sentence of four years imprisonment. Defendant also pled guilty to the aggravated-assault charge in the second indictment.
Count one was amended to second-degree robbery.
At her November 14, 2007 plea hearing, defendant confirmed to the judge that she was a resident alien from Jamaica. The following exchange then took place among defendant, the judge, and defendant's privately-retained plea counsel:
[JUDGE]: You understand that by entering a guilty plea you would be subject to deportation proceedings?
[DEFENDANT]: Yes.
[JUDGE]: I'll make it a little stronger. If you enter a guilty plea to this offense or to these offenses you should do so with the understanding that you will be deported.
[DEFENDANT]: Yes, sir.
[JUDGE]: All right. Make no mistake about it. I don't know when they'll get to it, if they'll get to it, but you are subject to deportation. Now you've spoken to [plea counsel]. He's gone over this issue with you. Has she had the benefit of speaking with a[n] immigration attorney?
[PLEA COUNSEL]: She did, Your Honor. She called an immigration attorney because —
[JUDGE]: Who was the attorney?
[DEFENDANT]: Steve Santucci . . . .
[JUDGE]: Okay.
[DEFENDANT]: And he explained everything to me.
[JUDGE]: Having had the consultation with this attorney and with [plea counsel], do
you still want to proceed today knowing that you will be deported?
[DEFENDANT]: Yes.
The judge accepted the plea agreement, and on February 1, 2008, sentenced defendant to concurrent four-year prison terms for counts one and three of the first indictment. The judge also imposed a concurrent three-year sentence for the aggravated-assault charge in the second indictment, but later vacated the guilty plea and dismissed the second indictment in its entirety. Defendant filed a direct appeal, which we heard on our May 2, 2011 excessive sentencing calendar. Defendant did not retain the same private attorney for her appeal; rather, she obtained representation from the Office of the Public Defender. Following oral arguments, we concluded that defendant's sentence "is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion."
On August 8, 2013, defendant filed a pro se petition for PCR, claiming ineffective assistance of both plea and appellate counsel. To support her pro se petition, defendant filed a certification claiming that she relied upon incorrect advice from her plea counsel regarding the immigration consequences of a guilty plea:
[I]ncorrect legal advice was a material part of my decision to accept the plea offer. I was incorrectly advised of the law. If
counsel had advised me that a plea of guilty would or could potentially affect my status in [t]he United States, I would have not entered the plea.In a supplemental certification dated January 19, 2014, defendant provided additional factual context in support of her PCR petition:
As a result of the guilty plea, I have been subjected to deportation proceedings. As I have just now become properly and accurately advised of the immigration consequences of my guilty plea, I respectfully request that my guilty plea be vacated.
I had been locked up in the jail and all I wanted to do was go home and have my baby. I took a plea I didn't want to take. A plea that my lawyer pressured me to take. I was so desperate to go home I even told the judge that I spoke to an immigration lawyer about my situation and I did not. [Plea counsel] had told me that the judge would not accept my plea without me agreeing to whatever he says. He told me he would ask for a bail reduction once I took my plea, and the only way he could see the judge giving me a bail reduction is if I took the plea. The only reason I took that plea was because I wanted a bail reduction to go home and have my baby. I ended up having my baby while in jail anyway and not getting the bail reduction until [four] days after I had my son. I wanted to take back my plea and go to trial but [plea counsel] would not listen to me.As for her appellate representation, defendant certified:
My appellate attorney did not properly represent me, and provided ineffective assistance as he did not have any contact with me to make use of my knowledge of the matter, he never met with me. If the lawyer had contacted me he would have known that I did not want to argue excessive sentence.
Arguing excessive sentence in my case didn't make any sense. I was convicted of second[-]degree robbery and sentenced in the [third] degree and [received four years imprisonment], and that isn't excessive. I actually wanted to take back my plea and go to trial, and the lawyer would have known that if he had actually taken the time to come see me or write me informing me how they wished to proceed on my direct appeal.
Defendant was pregnant at the time of the plea hearing. --------
The PCR petition was heard by a different judge than the one who accepted the plea and imposed the sentence. After declining to bar defendant's petition under Rule 3:22-12, the PCR judge concluded that defendant had failed to establish a prima facie case of ineffective assistance of counsel. The judge emphasized the diametric conflict between defendant's certification in support of her petition and her statements during the plea hearing, noting that if a PCR court were "to just totally vitiate or ignore what was testified to under oath at a plea . . ., then we would never have finality." Accordingly, the PCR judge denied defendant's petition without an evidentiary hearing.
On appeal, defendant presents the following arguments for our consideration:
POINT I
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE CASE REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE TRIAL COUNSEL WAS INEFFECTIVE.
POINT II
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE CASE REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE APPELLATE COUNSEL WAS INEFFECTIVE.
POINT III
BECAUSE THE DEFENDANT WAS NOT PROPERLY ADVISED ABOUT BAIL AND THE IMMIGRATION CONSEQUENCES RESULTING FROM HER GUILTY PLEAS, SHE SHOULD BE PERMITTED TO WITHDRAW HER GUILTY PLEAS AND PROCEED TO TRIAL. (Partially Raised Below).
II.
To establish a prima facie case of ineffective assistance of counsel in the context of a plea agreement, a defendant must demonstrate that his or her counsel rendered 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." State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 316 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the United States Supreme Court's two-prong test for ineffective-assistance claims, found in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).
A petitioner for PCR is generally entitled to an evidentiary hearing upon showing a prima facie claim of ineffective assistance. State v. Porter, 216 N.J. 343, 354 (2013). To establish a prima facie claim, the petitioner "must allege specific facts and evidence supporting his allegations." Id. at 355. Importantly, "bald assertions" of ineffective assistance are insufficient to warrant an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
In State v. Gaitan, 209 N.J. 339, 374-75 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 434, 185 L. Ed. 2d 367 (2013), our Supreme Court reaffirmed the holding in Nuñez-Valdéz that an attorney who affirmatively misinforms a client about the immigration consequences of a guilty plea renders ineffective assistance. However, the Court held that Gaitan was not entitled to pursue PCR relief because he was informed that he might face deportation, and he produced "no evidence or claim that, at the time, [he] sought more information about immigration consequences and was then misinformed by counsel." Id. at 375. Considering the companion case, which involved a defendant named Goulbourne, the Court examined the transcript of the plea colloquy and discerned that not only was Goulbourne told multiple times that he very well might be deported, but his primary expressed focus was not with his immigration status but with "how long a time he would serve in jail," due to concerns for his recently-born child who needed care. Id. at 379. It was therefore clear from the record that he could not satisfy the second Strickland prong - demonstrating that he would not have pled guilty had he received correct immigration advice. Ibid.
Applying the law to the record before us, we conclude that the PCR judge correctly denied defendant's petition. Defendant predicates her arguments regarding plea counsel on the claim that she received incorrect immigration advice. However, she fails to identify any such misadvice in her certifications to the court. "Bald assertions" are insufficient to support a PCR petition. Cummings, supra, 321 N.J. Super. at 170. Without any particularized allegations of deficient performance by her plea counsel, defendant cannot establish the first prong of her prima facie claim.
In any event, defendant cannot establish prejudice under the second prong of the Strickland test. On appeal, defendant claims that she would not have accepted the plea agreement had she been informed of the immigration consequences of pleading guilty. However, her certification directly belies this claim, and indicates that she would have accepted the plea agreement, regardless of the immigration consequences. She certified that, "The only reason I took that plea was because I wanted a bail reduction to go home and have my baby." Like Goulbourne in Gaitan, defendant's primary concern during the plea hearing was not her future immigration status, see Gaitan, supra, 209 N.J. at 379; rather, it was to obtain a bail reduction so that she could give birth while not in confinement.
More importantly, like in Gaitan, the plea judge was careful to emphasize several times to defendant that pleading guilty would result in her deportation. Id. at 375. Even assuming that defendant's attorney misinformed or failed to inform her of the immigration consequences of a guilty plea, the plea judge made her fully aware that she would be deported as a result of her guilty plea. Because she proceeded to plead guilty despite being warned by the judge that "you will be deported," she cannot show a reasonable probability that she would not have pled guilty had she received the same advice from trial counsel.
Defendant emphasizes that she did not even receive the relief that she sought by pleading guilty, as she ultimately gave birth while in custody. The record indicates that defendant did indeed receive a bail reduction; however, the reduction was delayed until after she had given birth. The mere fact that defendant's bail reduction was delayed until after she had given birth does not render her plea counsel's performance ineffective. Defendant's belated attempt to withdraw her guilty plea is similarly without merit, particularly as a bail reduction was not a condition of her plea, or even discussed at her plea hearing.
Defendant's arguments regarding ineffective assistance of appellate counsel are similarly unpersuasive. She claims that appellate counsel failed to raise the proper arguments on direct appeal, resulting in her sentence being affirmed on our excessive sentencing calendar. Rather than challenge the sentence on direct appeal, defendant claims that she wished to challenge her guilty plea, but her appellate counsel never consulted with her regarding which arguments to raise. In light of our conclusion that defendant's challenge to her guilty plea lacks merit, defendant's claim regarding appellate counsel must also fail. Even if appellate counsel had raised a challenge to the guilty plea on direct appeal, such a challenge would not have succeeded, and thus would not have affected the outcome of this case. Therefore, defendant cannot show prejudice.
Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION