STATE OF NEW JERSEY v. CEON MILES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4241-04T14241-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CEON MILES,

Defendant-Appellant.

_______________________________________

 

Submitted July 24, 2006 - Decided August 14, 2006

Before Judges C.S. Fisher and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Indictment No. 99-06-02191.

Law Offices of Edward J. Crisonino, attorneys for appellant (Edward J.

Crisonino, on the brief).

James P. Lynch, Acting Camden County

Prosecutor, attorney for respondent (Nancy P. Scharff, Special Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Ceon Miles appeals from the denial of his motion to vacate a plea of guilty, which was filed more than three months after he was sentenced and the judgment of conviction was entered. In support of that motion, he contended that he did not receive effective assistance of counsel at the time he entered his plea of guilty because his attorney did not advise him that he could be deported as a consequence of the conviction.

The motion was assigned to Judge Donaldson who conducted a hearing at which defendant and the attorney who represented him at the time of his guilty plea testified. Our review of the record convinces us that Judge Donaldson carefully considered the testimony presented at the hearing, the transcript of defendant's guilty plea and the relevant plea forms before making factual determinations that are based on sufficient credible evidence. State v. Locurto, 157 N.J. 463, 471-72 (1999). Defendant's argument to the contrary lacks sufficient merit to warrant extended discussion, and we provide only a brief explanation for that conclusion. R. 2:11-3(e)(2).

Based on allegations of sexual conduct in January 1999 involving two different children, defendant was indicted and charged with six counts of aggravated sexual assault and three counts of endangering the welfare of a child. N.J.S.A. 2C:14-2a; N.J.S.A. 2C:24-4a. The indictment was returned on June 30, 1999. On August 10, 2001, defendant entered a plea of guilty to one count of endangering the welfare of a child. That plea was entered pursuant to an agreement under which the State promised to dismiss the remaining eight counts of the indictment and recommend a sentence of probation. The agreement as to sentence was conditioned upon defendant's appearance at the time of sentencing.

Defendant's attorney advised the court that he had discussed with his client the discovery, the rights he was waiving and the information included on the plea form and supplemental forms relevant to sex offenses. Defendant provided a factual basis for the plea. In addition, he acknowledged that he had gone over the plea forms with his attorney and had given his attorney the information that he used to complete the form. The judge conducted a thorough inquiry concerning defendant's understanding of the terms of the agreement and his waiver of rights. In the course of that colloquy with the judge, defendant acknowledged his satisfaction with the services rendered by his attorney and admitted that he had sufficient time to ask all the questions he had and received adequate answers to those questions. Defendant did not appear for sentencing and was not sentenced until August 6, 2004. He was sentenced to a term of eight years, three without possibility of parole.

On November 16, 2004, defendant moved to withdraw his plea. He certified that he was not a United States citizen and had been contacted by the Immigration and Naturalization Service and notified of the agency's intention to begin deportation proceedings. Defendant's motion was assigned to Judge Donaldson, who conducted a hearing on his claim that his attorney had failed to apprise him of the potential for deportation as a consequence of the conviction. Defendant and the attorney who represented him at the time of his plea testified.

Defendant testified that he would not have entered a plea of guilty if he was aware of the potential for deportation. He also testified, "[B]asically I just always say I'm a citizen." He admitted that if his attorney had asked him, he would have said that he was a United States citizen but also would have told him that he was born in Jamaica and acknowledged that he had told the probation officer who prepared the pre-sentence report that he was a citizen. Although defendant's attorney had no specific recollection of having a conversation about immigration status with defendant, his review of the plea form convinced him that defendant had told him that he was a citizen. The attorney's conclusion was based on the fact that he had circled "N/A" in response to the following question on the plea form: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?"

After reviewing the testimony presented on the motion, the plea form, pre-sentence report and the transcript of the plea, Judge Donaldson found that defense counsel had asked defendant about his immigration status and that defendant gave him inaccurate information that he had no reason or responsibility to question. On that ground, Judge Donaldson concluded that defendant failed to establish that counsel's performance was deficient. State v. Preciose 129 N.J. 451, 463-64 (1992) (discussing the standard established in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) and State v. Fritz, 105 N.J. 42, 58 (1987)).

We see no basis for disturbing Judge Donaldson's findings or conclusions. We decline to address defendant's novel and unsupported assertion that his prior convictions in New York should have alerted his attorney to the need to investigate his claim about citizenship. R. 2:11-3(e)(2).

Affirmed.

 

(continued)

(continued)

5

A-4241-04T1

RECORD IMPOUNDED

August 14, 2006