STATE OF NEW JERSEY v. THELFAS COOPER

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

THELFAS COOPER,

Defendant-Appellant.

___________________________

November 7, 2013

Before Judges Fuentes and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 04-06-0795.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Thelfas Cooper appeals from the December 9, 2010 Law Division order, which denied his petition for post-conviction relief (PCR) following an evidentiary hearing held after a remand. We affirm.

A grand jury indicted defendant for first-degree aggravated assault, N.J.S.A. 2C:14-2a; second-degree sexual assault, N.J.S.A. 2C:14-2c; and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The charges stemmed from defendant's sexual assault of a thirteen-year-old girl from November 2002 to October 2003. Defendant impregnated the victim, the pregnancy was terminated, and DNA testing confirmed that defendant was the biological father of the fetus.

In 2004, defendant pled guilty to first-degree aggravated sexual assault in exchange for the State's agreement to dismiss the remaining charges and recommend a twelve-year term of imprisonment subject to an eighty-five percent period of parole ineligibility and a five-year period of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The trial judge sentenced defendant in accordance with the plea agreement.

Defendant appealed his sentence. We heard the appeal on our Excessive Sentencing Oral Argument Calendar, Rule 2:9-11, and affirmed. State v. Cooper, No. A-3644-05 (App. Div. Oct. 18, 2007).

Defendant then filed a PCR petition based on alleged ineffective assistance of counsel with respect to his status as a non-citizen and the risk of deportation as a result of a guilty plea. We vacated the order denying the petition, and remanded for an evidentiary hearing regarding communications between defendant and defense counsel about defendant's citizenship status and the effect of those conversations upon defendant's decision to plead guilty. State v. Cooper, No. A-1561-08 (App. Div. Mar. 18, 2010).

At the hearing, defense counsel testified that at the time of the plea hearing, he knew defendant was from Jamaica, had a green card, and was a permanent resident. Although counsel did not specifically recall advising defendant about the deportation consequences of a plea, it was counsel's practice to read Question 17 on the plea form1 to his clients and indicate to them the possibility of deportation. Counsel answered "N/A" to the question because defendant was a permanent resident and expressed no concern about deportation. Rather, after reviewing the evidence against him, defendant's primary concern was whether counsel could negotiate a lower sentence than the prosecutor's original offer of eighteen years subject to NERA.

Defendant testified that counsel advised him he would not be deported. He also asserted he would never have pled guilty and would have gone to trial had he known about the deportation consequences of his plea. However, defendant admitted he was aware of the evidence against him, he pled guilty because he was guilty of the charge, and his concern was to lessen the amount of time he was incarcerated.

In a December 9, 2010 oral opinion, the PCR judge found defendant's testimony lacked credibility. The judge determined that defendant failed to establish that counsel gave wrong advice about the deportation consequences of pleading guilty, and even if counsel did so, defendant failed to show the outcome would have been different. The judge emphasized that defendant did not claim innocence, the evidence against defendant was compelling, there were no conceivable defenses, defendant would likely have been convicted at trial and sentenced to twenty years, and defendant would have been deported after serving that sentence. This appeal followed.

On appeal, defendant raises the following contentions:

POINT ONE

THE FAILURE OF TRIAL COUNSEL TO ADVISE DEFENDANT THAT AS A RESULT OF HIS PLEA AGREEMENT, HE WOULD BE DEPORTED DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWO

THE FAILURE OF TRIAL COUNSEL AND THE TRIAL COURT TO EXPLAIN THE IMMIGRATION CONSEQUENCES OF DEFENDANT'S GUILTY PLEA CAUSED DEFENDANT TO LACK KNOWLEDGE AND UNDERSTANDING OF THE PLEA AGREEMENT, RENDERING HIS PLEA DEFECTIVE, BECAUSE HE NEVER KNOWINGLY WAIVED HIS RIGHT TO A JURY TRIAL.

Our Supreme Court has established the standard of review in PCR cases:

Our standard of review is necessarily deferential to a PCR court's factual findings based on its review of live witness testimony. In such circumstances we will uphold the PCR court's findings that are supported by sufficient credible evidence in the record. An appellate court's reading of a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness he [or she] has observed firsthand. Last, we need not defer to a PCR court's interpretation of the law; a legal conclusion is reviewed de novo.

[State v. Nash, 212 N.J. 518, 540-41 (2013) (citations omitted).]

To establish a prima facie claim of ineffective assistance of counsel, the defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). State v. Preciose, 129 N.J. 451, 463 (1992). That is, the defendant must show: (1) the deficiency of his counsel's performance; and (2) prejudice to his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Under the first prong, the defendant must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Under the second prong, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid. That is, "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

To set aside a guilty plea based on ineffective assistance of counsel, the Court has held that "'a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (second alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)); see also State v. Parker, 212 N.J. 269, 279 (2012).

The Supreme Court of the United States has held that defense attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea. Padilla v. Kentucky, 559 U.S. 356, 367, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). After the judge's decision in this case, however, the Court held that Padilla does not apply retroactively, Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013), and our Supreme Court held that Padilla is a new rule to be applied prospectively only. State v. Gaitan, 209 N.J. 339, 371-72 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); see also State v. Santos, 210 N.J. 129, 143 (2012).

Here, defendant pled guilty six years before Padilla. Therefore, his "guilty plea is not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Gaitan, supra, 209 N.J. at 361. A limited exception to this rule arises when defense counsel provided affirmatively misleading advice about the immigration consequences of a guilty plea. See Nu ez-Vald z, supra, 200 N.J. at 139-43 (where defense counsel informed the defendant there would be no immigration consequences arising from his plea); see also Santos, supra, 210 N.J. at 143-44. Although the judge in this case determined that defense counsel did not misinform defendant about the immigration consequences arising from his plea, the record does not support this conclusion. Counsel gave defendant incorrect legal advice by allowing defendant to sign the plea from with Question 17 marked "N/A" while knowing that defendant was from Jamaica and had a green card. Defendant was not a United States citizen, and thus, Question 17 was applicable. Even in 2004, defense counsel should have advised defendant that faced a strong possibility he would be deported at the completion of his sentence by virtue of his plea of guilty to the first-degree aggravated sexual assault offense.

Nevertheless, given the overwhelming evidence of culpability available to the State, we are satisfied defendant would have accepted the State's generous plea offer even if he had been properly apprised of the immigration consequences of his conviction. Accordingly, defendant's PCR petition was properly denied.

Affirmed.

1 Question 17 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?"