STATE OF NEW JERSEY v. WESNER ALECTUS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4494-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WESNER ALECTUS,

Defendant-Appellant.

_______________________________

June 24, 2011

Submitted March 23, 2011 - Decided

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-09-1003.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas Menchin, Designated Counsel, of counsel and on the brief).

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (Shawn P. Barnes, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Wesner Alectus appeals a January 23, 2009 order denying his petition for post-conviction relief (PCR). On December 12, 2005, pursuant to a plea agreement, defendant, a Haitian national, pled guilty to third-degree possession of a controlled dangerous substance (CDS) with intent to distribute, N.J.S.A. 2C:35-5(a)(1), -5(b)(3). The State agreed to dismiss the remaining three counts of the indictment. As recommended in the plea agreement, he was sentenced to three years probation and ordered to pay the requisite fines, penalties and assessments. No appeal was taken and defendant served his sentence.

On August 29, 2008, defendant filed a PCR petition. He alleged his attorney was deficient for not filing a motion to suppress the evidence and for misinforming him at the time of his plea about the potential deportation consequences of his conviction. As a result, he contended his plea was not knowing and voluntary and should be withdrawn.1 Additionally, defendant suggested he should be permitted to withdraw his plea because the testimony presented failed to provide a sufficient factual basis to sustain a conviction of the charge. The trial judge found no deficient conduct by counsel and denied the petition.

On appeal, defendant argues:

POINT I

BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, HIS PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED.

POINT II

FLAWS IN THE PLEA ALLOCUTION REQUIRE THE PLEA BE VACATED.

Following our review, we affirm.

When charged with the offense that is the subject of this appeal, defendant sought representation by the Office of the Public Defender in Union County. The Uniform Defendant Intake form, containing information provided by defendant, reflected he was born in Haiti and his resident alien card expired on May 21, 2003.

At the plea hearing, the judge addressed defendant directly. Defendant stated he had no difficulty reading or understanding English, understood the charge against him, and was satisfied with his attorney's services. In answering the questions on the plea agreement form, defendant acknowledged his attorney reviewed each question with him. We note, question seventeen asked, "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?" The permitted answers were "yes," "no," or "N/A [not applicable]." Defendant's attorney circled "yes."

The court examined defendant, inquiring whether "there [we]re any questions [he] did not understand?" to which he replied "I mostly understood everything." Again the court asked: "Did your attorney answer all your questions about the [plea] form and explain the purpose of the form to you?" Defendant replied "yes." Finally, the trial judge queried:

Q: As you stand here now are there any questions or concerns that you feel that you have that [counsel] has not satisfactorily answered for you? Do you have any questions?"

[Defendant]: Can I . . . speak for myself for a minute to you?

Q: Do you have any questions of me or your attorney right now as to what is going on here?"

A: No.

No specific questions were posed regarding question seventeen of the plea form or defendant's immigration status.

Defendant's PCR petition sought to vacate his guilty plea, asserting counsel was deficient in providing advice regarding the consequences of the plea and the record reflects defendant's tentative and ambiguous responses to the court's questions. He suggests counsel did not explain and the judge never clarified whether he understood "the terms, conditions and consequences of the plea could or would result in his deportation[.]" In further support of his request to vacate his plea, defendant argued the plea lacked a factual basis for material elements of the charge and counsel should have filed a motion to suppress the evidence.

In a written opinion, the trial judge denied PCR without the benefit of a plenary hearing. This appeal ensued.

Where a defendant argues the ineffective assistance of counsel led to the entry of a guilty plea, the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), applies. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 209-10 (1985). See also State v. Fritz, 105 N.J. 42, 58 (1987) (applying the Strickland test when assessing PCR petitions); State v. Chung, 210 N.J. Super. 427, 434 (App. Div. 1986) (applying the Strickland test to guilty pleas entered in state court). To prevail on an ineffective assistance claim, a defendant must satisfy a two-part test: he or she must prove counsel's representation was deficient and further, that but for counsel's errors, a defendant would have insisted on going to trial. State v. DiFrisco, 137 N.J. 434, 457 (1994).

As to the first prong, a defendant must show that the attorney's representation "fell below an objective standard of reasonableness," Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Specifically, the voluntariness of a represented defendant's guilty plea "depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.'" Hill, supra, 474 U.S. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). Reviewing courts must indulge in a strong presumption that counsel provided reasonable assistance. Chung, supra, 210 N.J. Super. at 434 (citing Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695).

The second prong requires a defendant to demonstrate "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210. Prejudice is not presumed. State v. Fritz, 105 N.J. 42, 61-62 (1987).

Counsel's obligation to advise regarding the deportation consequences flowing from a noncitizen's guilty plea and resultant conviction for drug offenses has been recently analyzed by both the New Jersey and the United States Supreme Court. We briefly review these opinions.

In State v. Nunez-Valdez, our Supreme Court considered "whether counsel renders ineffective assistance if he or she provides false or misleading information concerning the deportation consequences of a plea of guilty." 200 N.J. 129, 138 (2009). The defendant argued his plea was uninformed, contending "his attorneys told him to accept the plea offer in exchange for a probationary sentence and that the plea would not affect his immigration status." Id. at 137-138. The Court held counsel's advice was deficient in misinforming the defendant of the impact of a conviction following a guilty plea on his residency status. Id. at 143. In so doing, the Court noted that because the plea agreement form included a reference to deportation (question seventeen), the determination did not turn on whether consequences of a plea were penal or collateral, rather it "treat[ed] deportation similar to a penal consequence that requires notice to defendant." Id. at 138.

In Padilla v. Kentucky, the United State Supreme Court noted "constitutionally competent counsel would have advised [the defendant] that his conviction for drug distribution made him subject to automatic deportation" and concluded "advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel." 559 U.S. __, ___, 130 S. Ct. 1473, 1478-82, 176 L. Ed. 2d 284, 290-94 (2010). In so holding, the Court rejected the invitation to limit its holding "to affirmative misadvice" as that

would invite two absurd results. First, it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available. Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of "the advantages and disadvantages of a plea agreement." Libretti v. United States, 516 U.S. 29, 50-51, 116 S. Ct. 356, 133 L. Ed. 2d 271 (1995) . . . . It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so "clearly satisfies the first prong of the Strickland analysis." Hill v. Lockhart, 474 U.S. 52, 62, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) (White, J., concurring in judgment).

[Id. at __, 130 S. Ct. at 1484, 176 L. Ed. 2d at 296-97.]

Here, relying on Padilla, State v. Garcia, 320 N.J. Super. 332 (App. Div. 1999) and State v. Vieira, 334 N.J. Super. 681 (Law Div. 2000), defendant argues his plea must be vacated because counsel did not provide reasonably competent representation because he failed to inform defendant deportation was "a near certainty." We disagree, concluding the circumstances in this case are materially different.

In Garcia and Vieira, question seventeen was answered "N/A." Our examination in Garcia, supra, concluded the trial court erred in not conducting an evidentiary hearing when faced with a factual dispute between defendant and his attorney as to whether defendant had advised the attorney that he was an illegal Cuban refugee. 320 N.J. Super. at 335-40. The defendant in Vieira, supra, when arrested disclosed he was a resident alien for thirty years having been born in Portugal and had difficulty understanding the English language. 334 N.J. Super. at 683. Further, defense counsel admitted she did not review each question on the plea form with defendant, as she did not complete it in his presence. Id. at 684.

In this matter, counsel offered neither "erroneous information" nor an "actual misrepresentation" concerning the immigration ramifications. Garcia, supra, 320 N.J. Super. at 334-35. In fact, defendant, who graduated from Elizabeth High School and attended one year of community college, is proficient in English and was told deportation consequences could arise following his conviction, which was reaffirmed by question seventeen. Defendant read the question, responded affirmatively, and executed the plea form. Further, he admitted counsel reviewed the plea form questions with him, he understood the inquiries and the nature of the proceeding, and declined the court's invitation to clarify any part of the plea form.

Counsel's representation made clear to defendant the consequences resulting from a guilty plea and comported with the dictates of the Sixth Amendment. Further, there exists no constitutional requirement for a trial judge to additionally explain the possibility of deportation to the defendant. Chung, supra, 210 N.J. Super. at 433.

Defendant's request for PCR is also defeated by his failure to certify he would have rejected the plea agreement in favor of trial along with any concomitant imprisonment consequences upon conviction. The trial court correctly found defendant's proofs on each of the Strickland prongs lacking.

Defendant also asserts counsel neglected to discuss the possibility of filing a motion to suppress the narcotics evidence. Defendant's arrest resulted following police surveillance, where the officers witnessed a hand-to-hand drug transaction. We reject as without merit, R. 2:11-3(e)(2), defendant's contention that the highly trained and experienced narcotics officers lacked probable cause for the search and seizure after witnessing the sale. State v. Pineiro, 181 N.J. 13, 21 (2004) (holding probable cause is found where the facts and circumstances within a police officer's knowledge are sufficient "to warrant a person of reasonable caution in the belief that an offense has been or is being committed").

Finally, defendant urges the plea allocution was invalid, claiming his equivocal responses failed to establish the intent to distribute CDS element of the offense. We reject this argument as it is barred by Rule 3:22-4. Our Supreme Court has recognized "that under some extraordinary circumstances, a court's improper acceptance of a guilty plea may constitute an illegal sentence" permitting PCR. See State v. Mitchell, 126 N.J. 565, 577 (1992). For a guilty plea to be illegal in this sense, however, "its acceptance must implicate constitutional issues[.]" Ibid.

In this matter, we discern no impairment of defendant's fundamental rights or manifest injustice in the denial of his motion to vacate his plea. State v. Slater, 198 N.J. 145, 156 (2009). We have no doubt the plea "was made truthfully, voluntarily and understandingly." State v. Herman, 47 N.J. 73, 76-77 (1966).

Moreover, "[t]he elements of the crime [possession of CDS with intent to distribute] are present whether the intent is merely to share cocaine casually with a friend or to control a widespread network of illicit distribution and sale." State v. Sainz, 210 N.J. Super. 17, 25 (App. Div. 1986), aff'd, 107 N.J. 283 (1987). Here, defendant explicitly testified he was sharing the cocaine with other people, supporting his intent to distribute.

Accordingly, the trial judge correctly concluded defendant's counsel was not deficient and no basis to set aside his guilty plea and conviction was otherwise presented.

1 The record is silent on whether defendant now faces deportation, however, the crime charged is a deportable offense under 8 U.S.C.A. 1227(a)(2)(B)(i), which states: "Any alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State, the United States or a foreign country relating to a controlled substance . . . , other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable."