STATE OF NEW JERSEY v. ELIE HANNA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3522-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELIE HANNA,

Defendant-Appellant.

_________________________________

Submitted June 2, 2011 Decided June 20, 2011

Before Judges Fuentes and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

07-09-1571.

Richard S. Mazawey, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (David Malfitano,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Elie Hanna appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.

On September 20, 2007, a Bergen County grand jury indicted defendant for third degree distribution of cocaine, N.J.S.A. 2C:35-5b(3), and third degree distribution of cocaine within 1,000 feet of a school, N.J.S.A. 2C:35-7. On July 7, 2008, defendant pled guilty pursuant to a negotiated agreement with the State to third degree distribution of cocaine within 1,000 feet of a school. The State agreed to dismiss the remaining charge and recommend a sentence of three years in prison, with eighteen months of parole ineligibility.

Pursuant to Rule 3:9-2, the trial court addressed defendant directly at the plea hearing and asked him a series of questions intended to determine defendant's understanding of his constitutional rights and the consequences of his plea, as well as the voluntariness of his decision to plead guilty. We limit our recitation of this colloquy to the issue of defendant's immigration status.

THE COURT: [W]here were you born?

DEFENDANT: Lebanon. Lebanon.

THE COURT: Okay. What is your status here in this country?

DEFENSE COUNSEL: He's a resident alien, Your Honor.

THE COURT: Okay. Well, counsel, I assume you went over this with him?

DEFENSE COUNSEL: We have, Your Honor. I've discussed with him and he's aware that he faces deportation as a result of this guilty plea.

THE COURT: Did you understand what that means?

DEFENDANT: Yes.

THE COURT: Doesn't happen in this courtroom, but I have to advise you that as a result of entering a guilty plea that you will be subject to deportation proceedings. I can't tell you when it will happen, if it will happen, but if you're going to enter this guilty plea you should do so with the understanding that if you are deported you are not surprised about it. Understanding this, do you still want to proceed today?

DEFENDANT: Yes.

THE COURT: I will give you the opportunity to consult with an immigration attorney in addition to your attorney, or you could proceed this morning. What do you want to do?

DEFENDANT: I'll proceed.

THE COURT: You sure?

DEFENDANT: Yes.

On October 24, 2008, the court sentenced defendant to a term of three years, with nine months of parole ineligibility. Defendant did not file a direct appeal challenging the sentence as excessive or otherwise attacking the factual or legal basis of his guilty plea. After serving the nine-month period of parole ineligibility, defendant was taken into custody by federal immigration authorities and transported to a detention facility to await deportation.

Defendant filed a PCR petition on October 9, 2009, alleging ineffective assistance of trial counsel based on counsel's alleged failure to inform defendant that he "WOULD be deported," as opposed to being merely "subject[] to deportation." Defendant further alleged that the trial court's voir dire at the plea hearing failed to "meet the standard" requiring "the court to inform a non-citizen that a plea of guilty to an aggravated felony WILL result in deportation." As a secondary basis for attacking his attorney's performance, defendant claimed that counsel failed to verify that the drug transaction occurred within 1,000 feet of school property.

Defendant's PCR petition came for adjudication before Judge Patrick J. Roma on February 5, 2010. After reviewing the record and considering the arguments of counsel, Judge Roma denied the petition, explaining his ruling in a memorandum of opinion dated February 16, 2010.

Defendant now appeals raising the following arguments:

POINT I

THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT WAS NOT ENTITLED TO POST CONVICTION RELIEF BECAUSE HE WAS ADEQUATELY INFORMED OF THE CONSEQUENCES OF HIS GUILTY PLEA.

POINT II

THE TRIAL COURT ERRED IN FINDING THAT COUNSEL'S FAILURE TO DETERMINE WHETHER THE PLACE OF THE DRUG SALE WAS ACTUALLY WITHIN 1000 FEET OF A SCHOOL DID NOT PREJUDICE THE PETITIONER.

We reject these arguments and affirm substantially for the reasons expressed by Judge Roma in his memorandum of opinion. The record of the plea hearing illustrates that the trial court's thorough review of the immigration consequences of defendant's plea satisfies the concerns articulated by the United States Supreme Court in Padilla v. Kentucky, ____ U.S. ____, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010). There is no evidence in this record that defense counsel gave defendant erroneous advice on this issue. Cf. State v. Nunez-Valdez, 200 N.J. 129 (2009).

The balance of defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.