STATE OF NEW JERSEY v. ROGER LOUIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROGER LOUIS,

Defendant-Appellant.

______________________________

December 17, 2013

Submitted September 10, 2013 Decided

Before Judges Reisner and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 04-06-1487, 05-09-1971 and 06-05-0973 and Accusation No. 05-11-2363.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Roger Louis appeals from the trial court's April 19, 2011, order that denied, after an evidentiary hearing, his petition for post-conviction relief (PCR) from three judgments of conviction entered in 2004, 2006 and 2007 each after a guilty plea. Defendant argues that each of the three attorneys who represented him in connection with those pleas provided ineffective assistance of counsel with respect to his immigration status. Having considered defendant's arguments in light of the facts and applicable law, we affirm.

I.

We discern the following facts from the record. Defendant was born in Haiti in 1984. He immigrated to the United States as a child and became a permanent resident, but never attained citizenship.

A.

On September 20, 2004, defendant pleaded guilty to third-degree conspiracy to possess cocaine, N.J.S.A.2C:5-2; N.J.S.A.2C:35-10a(1). The charge was amended from third-degree possession as part of defendant's plea agreement.

Defendant responded "N/A" to question seventeen of his plea form, which 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?" However, the court directly asked defendant if he was a United States citizen. He said he was not, he was born in Haiti, and he was a resident. The judge then asked, "Do you realize that as a result of this plea, there is a possibility that you could be deported from this country?" Defendant responded that he did. Defendant also confirmed that no promise had been made to him that he "cannot be deported from this country as a result of this plea," and that his attorney had explained "that aspect of the plea."

In accordance with the plea agreement, the court sentenced defendant on January 28, 2005 to one year of probation, subject to various conditions, including his continued attendance at Brookdale Community College. His immigration status was not discussed at sentencing.

B.

On November 1, 2005, defendant came before the same judge again, with a different attorney, to address several new charges. A September 2005 single-count indictment charged that on May 28, 2005, he committed third-degree possession of heroin, N.J.S.A.2C:35-10a(1). A six-count accusation charged that on September 11, 2005, defendant committed three offenses involving cocaine, and three offenses involving heroin. As to each substance, he was charged with third-degree possession, N.J.S.A.2C:35-10a(1); third-degree possession with the intent to distribute, N.J.S.A.2C:35-5b(3); and second-degree possession with intent to distribute within 500 feet of a park, N.J.S.A.2C:35-7.1. Defendant was also charged with violating probation.

Defendant pleaded guilty to the two second-degree park-zone offenses; the third-degree heroin possession as charged in the single-count indictment; and the violation of probation (VOP). On defendant's plea form, "N/A" was again circled in response to question seventeen. The court again asked defendant if he was a United States citizen. This time, defendant responded that he was. Consequently, the court did not pursue the matter.

On February 3, 2006, in accordance with the November 1, 2005 plea, the court sentenced (or resentenced in the case of the VOP) defendant to concurrent flat terms of five years on the four offenses.

C.

After defendant entered his plea on November 1, 2005, he was continued on bail pending sentence. Within twenty-four hours, he was arrested on additional drug-related charges. On May 16, 2006, he was indicted, along with several other individuals, and charged with third-degree possession of cocaine, N.J.S.A.2C:35-10a(1); second-degree possession of cocaine with intent to distribute, N.J.S.A.2C:35-5b(2); third-degree possession of heroin, N.J.S.A.2C:35-10a(1); third-degree possession of heroin with intent to distribute, N.J.S.A.2C:35-5b(3); and four counts of third-degree conspiracy, N.J.S.A.2C:5-2; N.J.S.A.2C:35-10.

On September 28, 2006, defendant pleaded guilty before a different judge to second-degree possession of cocaine with intent to distribute. The State agreed to dismiss the remaining counts of the May 16, 2006 indictment. This time, in response to question seventeen of the plea form, "YES" was circled, indicating that defendant understood a conviction could result in deportation. The judge did not separately discuss the matter, but confirmed on the record that defendant reviewed the form with counsel, and had answered the questions truthfully.

Pursuant to the plea agreement, the court sentenced defendant on January 24, 2007 to a downgraded term of four years, subject to a two-year period of parole ineligibility, concurrent with the sentences he was then serving.

D.

On November 6, 2009, while defendant remained incarcerated, the Department of Homeland Security commenced removal proceedings against defendant. The following month, defendant filed his pro se application for PCR.

Regarding his first guilty plea, defendant stated, "I am 100% sure that [counsel and I] did not discuss immigration but I do not remember signing or initialing any paper work." Defendant added that his attorney "never mentioned anything in reference to Immigration consequences."

With respect to the 2005 offenses, defendant asserted he was not guilty, but his attorney told him his chances of prevailing were not strong. Referring to the attorney who represented him at the 2005 plea hearing, defendant claimed the attorney "never ever mentioned" the immigration consequences of his plea. Defendant also asserted that his attorney said he believed defendant was a citizen.

Defendant filed an amended petition for PCR after counsel was appointed. Regarding the 2004 plea, defendant stated, "I was not informed that, if I pled guilty it was very likely, if not certain, that I would be deported." Nor was he advised to consult with an immigration attorney. Defendant asserted if he had known he would be deported, he would not have pleaded guilty.

Regarding the 2005 plea hearing, defendant claimed he "misunderstood when asked [by the court] if [he] was a citizen." Defendant also alleged that discovery made clear his immigration status, and his attorney was ineffective by not correcting defendant's error. Defendant asserted that as a result, he was not informed of the immigration consequences of his plea, and had he known them, he would not have pleaded guilty.

Regarding the 2006 plea, defendant asserted that his attorney was ineffective by failing to inform him that he was pleading guilty to an aggravated felony, for which deportation was mandatory. Defendant alleged he would not have pleaded guilty had he known the consequences of the plea.

Judge Anthony J. Mellaci, Jr. conducted an evidentiary hearing on defendant's petition on April 19, 2011. Defendant testified that his 2004 plea counsel did not discuss his immigration status with him. Similarly, defendant asserted that he never had a conversation with his 2005 plea counsel about his immigration status. Defendant also denied telling his attorney he was a citizen, and asserted he misunderstood the question when he told the judge he was a citizen. Finally, defendant said his 2006 plea counsel did not discuss immigration consequences with him. Defendant asserted if he had known the deportation consequences of his various guilty pleas, he would have insisted on going to trial.

The State presented the transcripts of defendant's plea hearings, as well as his plea forms. The attorneys who represented defendant at his 2004 and 2005 plea hearings testified that they did not recall their pre-plea conversations with defendant. However, defendant's 2004 plea counsel testified it was his practice to advise non-citizen clients of the possibility of deportation.

Judge Mellaci denied the petition in a thorough oral decision. He applied the two-prong test for establishing ineffective assistance set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), which requires a showing that (1) counsel's deficient performance resulted in errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment, and (2) defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different.

The court held there was no ineffective assistance of counsel in 2004, because the court advised defendant on the record of the possibility of deportation. In 2005, there was no ineffective assistance because counsel was not obliged to address immigration consequences once defendant stated he was a citizen. Lastly, there was no ineffective assistance in connection with the third plea hearing because defendant testified he understood the plea form, and he affirmed in the form his understanding that he was subject to deportation.

This appeal followed. Defendant presents the following issues for our consideration:

POINT I THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND DEFENDANT'S GUILTY PLEAS VACATED BECAUSE TRIAL COUNSELS' FAILURE TO ADVISE DEFENDANT OF THE IMMIGRATION CONSEQUENCES OF HIS PLEAS WAS INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT II DENYING DEFENDANT'S MOTION FOR WITNESS SEQUESTRATION PREJUDICED DEFENDANT'S RIGHT TO A FAIRLY CONDUCTED POST-CONVICTION RELIEF HEARING.

II.

A defendant is entitled to effective assistance of counsel in the process of plea negotiation. Missouri v. Frye, 566 U.S.___, ___, 132 S. Ct. 1399, 1405, 182 L. Ed. 2d 379, 387 (2012). "If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it." Lafler v. Cooper, 566 U.S.___, ___, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398, 410 (2012). An attorney provides ineffective assistance when he or she misinforms a defendant about the consequences of a plea. Frye, supra, 566 U.S.at ___, 132 S. Ct.at 1406, 182 L. Ed. 2d at 388 (citing Padilla v. Kentucky, 599 U.S. 356, 373, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010)). In particular, an attorney renders ineffective assistance when providing "affirmative misinformation" about the immigration consequences of a plea. State v. Gaitan, 209 N.J.339, 351-52 (2012), cert. denied, ___ U.S.___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); State v. Nu ez-Vald z, 200 N.J.129, 139-40 (2009).

Moreover, given the evolving standards of professional conduct, our Court held that prospectively, beginning with the 2010 decision in Padilla, "an attorney must tell a client when removal is mandatory when consequences are certain[.]" Gaitan, supra, 209 N.J.at 380. In Padilla, supra, the Supreme Court held that attorneys are obliged to advise their clients if the offense to which they plead guilty will result in their removal from the country. Padilla, supra, 559 U.S.at 360, 130 S. Ct.at 1478, 176 L. Ed. 2d at 290. The failure to do so renders counsel deficient. Ibid. The Court did not limit its holding to affirmative misadvice regarding the immigration consequences of a guilty plea, finding no difference between an act of commission and an act of omission. Id.at 370-71, 130 S. Ct.at 1484, 176 L. Ed. 2d at 296-97. However, our Court held that the Padillaruling was not entitled to retroactive application under state law. Gaitan, supra, 209 N.J.at 372. The United States Supreme Court thereafter reached the same conclusion, holding that Padilladid not apply retroactively. Chaidez v. United States, 568 U.S.___, ___, 133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149, 162 (2013) ("[D]efendants whose convictions became final prior to Padillatherefore cannot benefit from its holding.").

Where a defendant, as a result of attorney ineffectiveness, accepts a guilty plea instead of going to trial, the petitioner may satisfy the prejudice prong by showing "a reasonable probability that, but for counsel's errors, [he or she] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); Nu ez-Vald z, supra, 200 N.J.at 139. A "reasonable probability" must be "sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S.at 694, 104 S. Ct.at 2068, 80 L. Ed. 2d at 698.

We agree with Judge Mellaci that defendant made no prima facie case of ineffective assistance of counsel. Although Judge Mellaci did not have the benefit of Gaitanand Chaidezregarding the retroactivity of Padilla, he correctly concluded that defendant had failed to demonstrate ineffective assistance of counsel.

Inasmuch as defendant entered his pleas in 2004, 2005 and 2006, he cannot benefit from Padilla. Applying Nu ez-Vald z, defendant failed to demonstrate any affirmative misinformation that would constitute ineffective assistance of counsel. Indeed, defendant claimed all three of his attorneys were silent on the subject.

On the other hand, the trial court, faced with defendant's ambiguous "N/A" response to question seventeen, pursued the issue of deportation in defendant's 2004 and 2005 plea hearings. In the 2004 hearing, defendant admitted he was a non-citizen. The court then correctly advised him that he faced the possibility, although not the certainty, of deportation based on his conspiracy to possess conviction. In the 2005 hearing, defendant misinformed the court that he was a citizen. Neither counsel nor the court were obliged to go further. Finally, in the 2006 hearing, defendant affirmed he had answered the plea forms truthfully, which included his affirmative response to question seventeen that is, defendant understood he could be deported.

To the extent we have not addressed any other arguments presented by defendant, they lack sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(2).