STATE OF NEW JERSEY v. JEASON BROWN

NOT FOR PUBLICATION WITHOUT THE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.

JEASON BROWN,

Defendant-Appellant.

___________________________

January 16, 2014

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-03-0588.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Stephanie Davis-Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a May 23, 2012 order dismissing his petition for post-conviction relief (PCR). Defendant contends that he received ineffective assistance of his plea counsel. We affirm.

A grand jury indicted defendant with third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); third-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5a(1) and -5b(3); third-degree possession with intent to distribute CDS within 1000 feet of a school, N.J.S.A. 2C:35-7; and second-degree possession with intent to distribute CDS within 500 feet of public property, N.J.S.A. 2C:35-7.1. Defendant's plea counsel negotiated an agreement that lessened defendant's possible jail time significantly. Defendant pled guilty to third-degree possession of CDS, and the judge sentenced him to two years' probation.

Defendant filed his petition for PCR. Judge Paul M. DePascale denied the petition without oral argument, memorializing his reasons in a two-page letter to PCR counsel. Judge DePascale considered and rejected defendant's contention that plea counsel was ineffective by failing to advise defendant that his conviction would result in a mandatory deportation order. The judge applied the standard that existed at the time of the plea, as enunciated in State v. Nunez-Valdez, 200 N.J. 129, 139 (2009), determined that defendant did not allege his plea counsel provided affirmative misinformation, and concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel.

On appeal, defendant raises the following points:

POINT I

THIS MATTER MUST BE REMANDED FOR ORAL ARGUMENT (Not Raised Below).

POINT II

IN THE ALTERNATIVE, IF THIS COURT DOES NOT REMAND FOR ORAL ARGUMENT AND INSTEAD ADDRESSES THE ISSUES ON THE MERITS, THEN THE MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING ON MR. BROWN'S CLAIM THAT TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING HIS IMMIGRATION STATUS.

Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We thus affirm substantially for the reasons expressed by Judge DePascale. We add only the following brief comments. In order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Our Supreme Court has also established standards for vacating a guilty plea based on a claim of ineffective assistance of counsel:

[t]o set aside a guilty plea based on ineffective assistance of counsel, 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.'

[Nunez-Valdez, supra, 200 N.J. at 139 (alterations in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)).]

Defendant pled guilty in May 2009, ten months before the Supreme Court's decision in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). Although that case held that a criminal defense attorney must advise a client about the risk of deportation, id. at 367, 130 S. Ct. at 1482, 176 L. Ed. 2d at 294, the United States and New Jersey Supreme Courts have refused to apply Padilla retroactively. Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct., 1103, 1105, 185 L. Ed. 2d 149, 154 (2013); State v. Gaitan, 209 N.J. 339, 373 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). To make a prima facie case of ineffective assistance of plea counsel under the applicable standard enunciated in Nunez-Valdez, defendant had to present "a claim showing that he was provided with false and affirmatively misleading advice when entering his plea[.]" Gaitan, supra, 209 N.J. at 374. Here, defendant's contention is not that plea counsel provided misleading advice, but rather, that plea counsel rendered ineffective assistance of counsel under Padilla by failing to advise defendant that his conviction would result in deportation.

Finally, defendant argues that the judge erred by disposing of his PCR petition on the papers. In State v. Parker, 212 N.J. 269, 282 (2012), the Court stated that "when the trial judge does reach the determination that the arguments presented in the papers do not warrant oral argument, the judge should provide a statement of reasons that is tailored to the particular application, stating why the judge considers oral argument unnecessary."1 Here, Judge DePascale adhered to the Supreme Court's injunction in Parker by stating that

[o]n February 28, 2012, our Supreme Court, in State v. Gaitan, held that the ruling in Padilla, supra, was a "new rule" that may not be applied retroactively. Consequently, the disposition of this [PCR] petition is governed by Nunez-Valdez . . ., which determined the existing level of professional competence at the time [of the plea] imposed a duty on counsel to avoid providing a noncitizen client with affirmative misleading information.

Insofar as [defendant] makes no allegation that [plea] counsel provided affirmative misinformation, [defendant] has failed to establish a prima facie case [of ineffectiveness of counsel].

The judge noted correctly that the sole ground alleged in defendant's PCR certification was that his plea counsel never advised him that defendant's charges "came with a mandatory deportation order." Under the circumstances of this case, we see no abuse of discretion. Id. at 282-83.

We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test as well as the standard established under Nunez-Valdez.

1 In the interest of completeness, we note that the Court decided Parker five months after the May 23, 2012 order denying defendant's PCR petition.