Opinion
DOCKET NO. A-2380-12T1
07-07-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WAYNE SPENCE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Meghan O. Price-Furfari, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Espinosa and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-08-0752.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Meghan O. Price-Furfari, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant entered a guilty plea to second-degree sexual assault pursuant to a plea agreement in 2007. At the time he entered his guilty plea, defendant was asked if he was a United States citizen. He replied that he was.
In his petition for post-conviction relief (PCR), defendant claimed he was denied the effective assistance of counsel because, as reflected in the presentence report, defendant was born in Jamaica and this should have alerted plea counsel to the fact that a problem existed regarding defendant's assertion that he was a United States citizen. Defendant's petition was denied. He has since been deported.
In this appeal, defendant argues the PCR court erred in denying his petition without an evidentiary hearing because his plea counsel gave him affirmative misadvice regarding deportation consequences. This argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.
Defendant's argument lacks both factual and legal support.
Defendant entered his guilty plea in 2007, approximately three years before the Supreme Court decided Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and determined that the failure to advise a defendant of deportation consequences constituted evidence that counsel's performance had been constitutionally deficient. See Strickland v. Washington, 466 U.S. 668, 687, l04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, l05 N.J. 42, 58 (l987). As this rule was limited to prospective application, State v. Gaitan, 209 N.J. 339, 367 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013), it does not apply to defendant's petition.
Moreover, defendant's claim lacks a sufficient factual basis as he has presented no evidence that he ever told his counsel that he was not a United States citizen.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION