STATE OF NEW JERSEY v. ADOLPHUS OKAI-KOI

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02491-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ADOLPHUS OKAI-KOI,

Defendant-Appellant.

____________________________

August 29, 2014

Submitted April 29, 2014 - Decided

Before Judges Hayden and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-09-3308.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Adolphus Okai-Koi appeals from the Law Division's denial of his first petition for post-conviction relief (PCR). Defendant was born in Ghana, moved to England, and relocated to the United States in 1999. In January 2007, he became involved in a physical altercation with his wife, which resulted in defendant being charged with various offenses including attempted murder, aggravated assault, and weapons charges. He later pled guilty to a charge of second-degree aggravated assault and a weapons charge. The court sentenced him in accordance with his plea agreement to a six year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to New Jersey's No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appealed his sentence as excessive and we affirmed.

He then filed his petition for PCR, arguing that his trial counsel was ineffective because "counsel refused to defend him if he proceeded to trial." He also argued that his claims were "not barred by the provisions of R. 3:22 as they assert[ed] constitutional issues," and "trial counsel was ineffective." The PCR court considered his petition without conducting an evidentiary hearing and ultimately denied it, finding that defendant failed to make a prima facie showing of ineffective assistance of counsel.

On appeal from that decision, defendant argues:

POINT I - THE MATTER SHOULD BE REMANDED FOR A FULL EVIDENTIARY HEARING ON DEFENDANT'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.

(A)

DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST.

(B)

DEFENDANT WAS PREJUDICED UNDER THE SECOND PRONG OF THE STRICKLAND/FRITZ TEST.

POINT II - THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

We have reviewed the record and considered these arguments, and we affirm as we are satisfied defendant's arguments are without merit.

A grand jury originally charged defendant with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); first-degree attempted murder, N.J.S.A. 2C:5-1, 11-3 (count four); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts five and six). All of these charges arose from defendant's assault on his wife when he discovered that she might be having an affair.

Defendant ultimately pled guilty to second-degree aggravated assault and third degree possession of a weapon for an unlawful purpose. He did so in exchange for the prosecutor's agreement to seek dismissal of the remaining charges and to recommend the six year term, subject to NERA, which the court later imposed as defendant's sentence.

The terms of defendant's plea were incorporated into a written plea agreement form which defendant signed. In that agreement, defendant acknowledged that he committed the offenses to which he was pleading guilty (question two) and that if he was not "a United States citizen or national, [he] may be deported by virtue of [his] plea of guilty" (question seventeen).

At the plea hearing, defendant first confirmed to the court that he had read and understood the terms of his plea agreement, and that he had answered all of the questions on the form truthfully and signed the agreement. He then testified that on January 18, 2007, after discovering a letter from someone with whom he believed his wife was having an affair, he got into an argument with her that escalated to the point of being physical and involved a knife:

Q. And you came to at a point in time you came to have possession of a knife?

A. Yes.

Q. And you used that knife against her. Is that correct?

A. Yes

Q. And you caused serious bodily injury to her, specifically she sustained cuts to her neck; correct?

A. Yes.

Q. And those cuts were very close to a major artery in her neck. Is that correct?

A. Yes.

Q. And she could have died. Is that correct?

A. Yes.

Afterward, defendant's counsel discussed with the court, in defendant's presence and on the record, defendant's need for a prolonged sentence date so he could prepare for his deportation after he completes his sentence:

DEFENSE COUNSEL. If I can just request . . . longer time for his sentencing, only because [defendant] is facing deportation after he completes his sentence. He would just like some time to reach out to his mother and let her know what's going on, and get himself situated and prepared to leave the country for good.

In support of his subsequent PCR petition, defendant filed a certification in which he claimed that his attorney forced him to take the plea by telling him counsel "wouldn't provide any defense, didn't believe [him] and that [he] would receive twenty years in prison." He also stated defense counsel never mentioned that he would be deported:

7. [Defense counsel] NEVER explained or went over the plea papers with me. She came back to the holding cell and told me to sign the papers, and that I will be serving six years in prison which is a good deal for the charges I am facing. She didn't mention anything about deportation.

8. . . . [It] was [later] brought to my attention that since I wasn't a citizen in the U.S. I would get deported if I accept the plea deal even though I was legally in the U.S. I am a Green Card holder. When I brought this up to [defense counsel] . . . [counsel] told me that it wasn't true, and that it was not part of the plea deal.

In his certification, defendant also stated that he instructed defense counsel to secure certain items of evidence that he believed were important to his defense, including bed sheets from the crime scene, and medical records that would establish that he sustained defensive wounds during his altercation with his wife. It was defendant's position that his wife was the party who first used the knife in their altercation. Despite that claim, defendant went on to state that he and his attorney "NEVER discussed any defense for my charges."

In a comprehensive oral opinion, the PCR judge, Alfonse J. Cifelli, denied defendant's petition, finding his statements unsupported by the record and not credible in light of defendant's sworn testimony at his plea hearing, and his counsel's remarks concerning defendant's anticipated deportation. First, the judge found no evidence in the record "to support the various allegations by" defendant about his attorney refusing to obtain evidence related to his defense. Also, Judge Cifelli noted that the attorney was able to secure a favorable plea agreement which resulted in defendant being sentenced to six years, rather than having to confront the possibility of being sentenced to at least twenty years if he lost at trial. Ultimately, the PCR judge found defendant lacked credibility, as his assertions were directly contradicted by the statements he and counsel made to the court during the plea hearing. Judge Cifelli stated:

I find that the petitioner clearly understood the deportation consequences of his plea as evidenced by the fact that he answered and circled yes in response to Question 17 on his plea form . . . [t]o which . . . defendant . . . answered affirmatively on the form and in his colloquy with the [plea] court. [Defendant] clearly indicated to the court he understood.

In addition, petitioner's counsel even requested . . . a longer time for a sentencing because [defendant] was, in fact, facing deportation after completing the sentence imposed by the court. The additional time . . . was requested to enable [defendant] an opportunity to reach out or contact his mother, to get himself situated as he prepares to leave the country for good. These statements clearly demonstrate to this court petitioner's comprehension of the immigration consequences of his plea. . . .

Accordingly, I find that defendant's claims lack credibility. I note that he asserts in his pro se petition that his counsel inadequately discussed the immigration consequences of his plea and that counsel made him sign a plea form which was already completed. However, in his certification petitioner now argues that counsel gave him affirmative misadvice regarding the plea agreement and the possibility of deportation. Both arguments appear to me to be clearly contradictory to the . . . record.

Again, I note from the record that on direct-examination by [the plea hearing judge, defendant] was asked if he filled out the form with his attorney, if he reviewed each question with is attorney, if he provided all the answers, and if all of the answers were true, to which [defendant] responded affirmatively. . . .

Based on these findings, Judge Cifelli entered the order denying defendant's PCR petition and this appeal followed.

We begin with a review of the well-settled principles that guide our analysis. Claims of ineffective assistance of counsel must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 52 (1987). The test requires a showing of deficient performance by counsel, and "'that the deficient performance prejudiced the defense.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

"A petitioner must establish the right to such relief by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992) (citing State v. Mitchell, 126 N.J. 565, 579 (1992)). "[B]ald assertions" of ineffective assistance are not enough. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). A petitioner "must allege facts sufficient to demonstrate counsel's alleged substandard performance," and the court must view the facts in the light most favorable to the petitioner. Ibid.

A defendant is generally entitled to an evidentiary hearing if he or she makes a prima facie case demonstrating "a reasonable likelihood that his or her claim will ultimately succeed on the merits." State v. Marshall, 148 N.J. 89, 158 (citing Preciose, supra, 129 N.J. at 462), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). However, an evidentiary hearing need not be granted where the "defendant's allegations are too vague, conclusory, or speculative." Ibid.; State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999).

We are satisfied that the PCR court properly found that defendant failed to prove a prima facie case of ineffective assistance of counsel, and correctly denied defendant's petition for the reasons stated in Judge Cifelli's comprehensive October 19, 2012 oral decision. We add only the following.

Defendant's argument that his trial attorney was ineffective because she failed to advise him about the deportation consequences of his plea is without sufficient merit to warrant further discussion, R. 2:11-3(e)(2), in light of counsel's request at the end of his plea hearing about defendant's need for an extended sentencing date to make arrangements for his deportation. That request and his affirmative answer to question number seventeen on his plea form ("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?") provided substantial support for the PCR court's decision as to that issue.

The other issue defendant raised, that his trial counsel failed to investigate his claim that his wife was the initiator of the attack and that he was injured when he took the knife away from her, does not establish his entitlement to an evidentiary hearing on his petition. Even if his attorney had obtained the bloody sheet (which he claims had his blood and not his wife's), or had obtained his medical records (which evidently she did), it would not make any difference to the outcome in this case. The moment he removed the knife from his wife's hand, the threat to him was over. State v. Moore, 158 N.J. 292, 311 (1999). There was no justification in his then using the knife to cut her neck. Ibid. Therefore, counsel's alleged failure to properly investigate defendant's claim that his wife was the aggressor would not have led to a defense in this case.

Affirmed.