STATE OF NEW JERSEY v. ANDREW LUMSDEN

NOT FOR PUBLICATION WITHOUT THE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.

ANDREW LUMSDEN,

Defendant-Appellant.

_________________________________

April 17, 2014

Submitted: April 9, 2014 Decided:

Before Judges Fuentes and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-03-0381.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Andrew Lumsden appeals from the April 27, 2012 Law Division order denying his consolidated petitions for post-conviction relief (PCR). We reverse and remand for an evidentiary hearing.

On March 7, 2005, defendant pled guilty to third-degree possession of marijuana with intent to distribute it, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11). In accordance with his plea agreement, the trial court sentenced defendant to two years of probation. On February 23, 2009, defendant pled guilty to third-degree distribution of marijuana within 1000 feet of school property, N.J.S.A. 2C:35-7. Pursuant to this plea agreement, the judge sentenced defendant to four years in prison, with a two-year period of parole ineligibility.1 During each plea colloquy, defendant acknowledged that: (1) he was not a citizen of the United States; (2) he understood that his guilty plea could affect his immigration status; and (3) he had discussed the issue with his attorney.2

In August 2009, "defendant was served by the United States Department of Homeland Security with a Notice to Appear for deportation. On July 25, 2011, a Judge of the United States Immigration Court issued a deportation order."

On January 24, 2011, defendant filed a pro se notice of motion for modification of sentence, which was treated as a petition for PCR and forwarded to the Office of the Public Defender for assignment of counsel. Thereafter, defendant's assigned attorney filed a petition for PCR regarding his 2009 conviction.

In his petition, defendant asserted that his plea counsel was ineffective because he affirmatively misrepresented that defendant would not be deported if he pled guilty. Defendant stated that he asked his plea counsel "about deportation" prior to pleading guilty on February 23, 2009 and that his attorney responded, "You are not being deported."

On October 28, 2011, defendant's PCR counsel filed a petition for PCR regarding the 2005 conviction. With regard to that plea, defendant alleged his attorney "failed to inform him that his [g]uilty plea [m]andated [d]eportation." After consolidating the two petitions, the PCR judge heard oral argument, but did not conduct an evidentiary hearing.

In a written decision, the judge denied the petitions. The judge found that, at the time he pled guilty in 2005 and 2009, defendant acknowledged he was not a United States citizen; advised the court he was aware that his guilty pleas could affect his immigration status; and stated he had spoken to his attorney about the "possibility that [he] could be deported as a result of pleading guilty[.]" Based upon these statements, the judge found that "defendant can read and write, and as the record indicates, understood the plea form and general nature of the plea, and the consequences that flowed therefrom."

The judge stated that, "[t]aking into account that defendant knew that he could be subject to deportation and in contrast with defendant's conclusory remark that he was generally misled, it is unclear as to whether defendant was in fact misled" by his plea counsel. The judge then concluded "that the evidence is insufficient to determine that defendant's attorney was deficient in allegedly misadvising defendant about the immigration consequences resulting from his two pleas. Therefore, this [c]ourt determines that defendant has not met his burden of proving a prima facie case of ineffective assistance of counsel." This appeal followed.

On appeal, defendant raises the following contention:

BECAUSE HE WAS AFFIRMATIVELY [MISLED] CONCERNING THE TRUE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEAS THE COURT BELOW ERRED IN DENYING DEFENDANT'S PETITION FOR [PCR] WITHOUT FIRST CONDUCTING AN EVIDENTIARY HEARING.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, the defendant 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).

In State v. Nu ez-Vald z, 200 N.J. 129, 131 (2009), the New Jersey Supreme Court held that a prima facie claim is established where counsel provides false or affirmatively misleading advice about the deportation consequences of a guilty plea, and the defendant demonstrates he would not have pled guilty if he had been provided with accurate information. Here, defendant's consolidated petitions set forth a prima facie claim under Nu ez-Vald z. Defendant told the judges who conducted the plea colloquies that he was aware his pleas could affect his immigration status and he stated he discussed the issue with each of his attorneys. However, defendant asserted in his consolidated PCR petitions that, prior to entering his pleas, his attorneys told him in private that he would not be deported and that deportation was not mandatory. If found to be true, defendant's claim that he relied upon these misrepresentations in responding to the judges' inquiries when he pled guilty could provide crucial support for a finding that he received ineffective assistance of counsel under Nu ez-Vald z. Thus, defendant established a prima facie claim of ineffective assistance of counsel that warranted an evidentiary hearing. Preciose, supra, 129 N.J. at 462.

Moreover, the PCR judge acknowledged that it was "unclear . . . whether defendant was in fact misled" by his plea counsel. An evidentiary hearing, at which the credibility of defendant's claim could be evaluated and the testimony of plea counsel could be taken, was therefore necessary to properly resolve the issue. As the Supreme Court recently observed in State v. Porter, 216 N.J. 343, 354 (2013), "[t]he judge deciding a PCR claim should conduct an evidentiary hearing when there are disputed issues of material facts related to the defendant's entitlement to PCR, particularly when the dispute regards events and conversations that occur off the record or outside the presence of the judge." The Court explained:

Certain factual questions, "including those relating to the nature and content of off-the-record conferences between defendant and [the] trial attorney," are critical to claims of ineffective assistance of counsel and can "only be resolved by meticulous analysis and weighing of factual allegations, including assessments of credibility." [State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).] These determinations are "best made" through an evidentiary hearing. Ibid. Even a suspicious or questionable affidavit supporting a PCR petition "must be tested for credibility and cannot be summarily rejected." State v. Allen, 398 N.J. Super. 247, 258 (App. Div. 2008).

[Id. at 355 (first alteration in original).]

Under these circumstances, we conclude that the PCR judge mistakenly exercised his discretion in failing to conduct an evidentiary hearing before dismissing defendant's consolidated petitions for PCR. Accordingly, we reverse the judgment of the PCR judge and remand for an evidentiary hearing on the merits of defendant's ineffective assistance of counsel claim.

1 Defendant did not file a direct appeal from either conviction.

2 Defendant was represented by a different attorney during each of his plea colloquies.