STATE OF NEW JERSEY v. SYED RAHMAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-02598-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SYED RAHMAN,

Defendant-Appellant.

___________________________________

April 22, 2014

Submitted February 11, 2014 - Decided

Before Judges Hayden and Rothstadt.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County, Indictment No. 05-10-1368.

Joseph E. Krakora, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and 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 Syed Rahman appeals from the Law Division's November 14, 2012 order denying his motion for post-conviction relief (PCR) without a hearing. In support of his appeal, defendant raises the following argument:

POINT I

BECAUSE A REVIEW OF THE RECORD IN THE LIGHT MOST FAVORABLE TO RAHMAN INDICATES THAT TRIAL COUNSEL MATERIALLY MISINFORMED HIM OF THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA, THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON RAHMAN'S POST-CONVICTION RELIEF CLAIMS.

We have considered this argument in light of the record and applicable legal standards, and conclude that defendant was entitled to an evidentiary hearing on his claim. Therefore, we reverse the denial of his petition and remand for a hearing.

I.

A grand jury returned an indictment charging defendant and others with second-degree conspiracy to commit murder or aggravated assault, N.J.S.A. 2C:5-2, 11-3(a), 12-1(b)(1); first degree attempted murder, N.J.S.A. 2C:11-3(a), 5-1; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); fourth-degree unlawful theft or receipt of a credit card belonging to another, N.J.S.A. 2C:21-6(c); and fourth-degree fraudulent use of credit cards, N.J.S.A. 2C:21-6(h).

On January 3, 2007, defendant pled guilty to one count of conspiracy to commit aggravated assault, which had been amended to a third-degree crime, N.J.S.A. 2C:5-2, 12-1(b)(7). Pursuant to a plea agreement, the State agreed to dismiss all remaining counts of the indictment and to recommend a sentence of non-custodial probation and statutory fines. This was with the understanding that defendant would give a factual basis for his offense that exculpated his co-defendant, his then wife.1 In addition, defendant's plea was conditioned upon federal authorities not violating his probation based on the entry of the guilty plea.2

The plea form listed the charge to which defendant was pleading guilty as "Conspiracy amended to 30," and repeated on a separate line that the degree of the crime was "30." It listed the statutory maximum time of imprisonment as "5 yrs." In addition, question number seventeen asked defendant, "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your guilty plea?" In response, "N/A" was circled. Defendant signed or initialed each page of the form.

Before accepting his guilty plea, the court noted that defendant "wishe[d] to plead guilty to amended count one, amended from second degree to third degree conspiracy and it's a different statute, 2C:12-1(b)7." Defendant's counsel confirmed the accuracy of the charge. The court then placed defendant under oath and examined him as to his general understanding of the charge, the contents of the plea form, the proceedings, and the consequences of his pleading guilty. However, the court did not specifically review defendant's status as a citizen or his answer to question number seventeen.

Before sentencing, the court's probation department issued an "Adult Presentence Report" (PSR) containing confidential information about defendant for the court's and counsels' use at sentencing.3 The report stated that "def[endant] is a resident alien from India."

At his subsequent sentencing, the court imposed a three year probationary term subject to drug screening and employment conditions. Also, at the defendant's request, the court granted him permission to visit his sick mother in India for "up to three weeks." There was no discussion at sentencing about defendant's immigration status.

Defendant did not appeal from his sentence. However, in December 2011, he filed a pro se PCR petition seeking to vacate his plea based on ineffective assistance of counsel. According to the petition, defendant would not have pled guilty if he knew he was pleading to a third-degree crime as compared to a disorderly offense. Specifically he stated:

My attorney advised me I was pleading guilty to a simple assault a disorderly person offense. I know now that I was convicted for a felony offense, 3rd degree aggravated assault. But for counsel[']s misrepresentation, I would have gone to trial rather th[a]n admit to aggravated assault.

In defendant's and his PCR counsel's supporting certifications, they explained that the PCR petition was filed when defendant learned that he was going to be deported as a result of the entry of his guilty plea. According to defendant, he was born and educated through college in India before arriving in the United States in 1993. He now faced deportation charges as a result of his pleading guilty in this matter.

Defendant argues that counsel also failed to inform him of the immigration consequences of his plea, as required under State v. Nu ez-Valdez, 200 N.J. 129 (2009), and Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 178 L. Ed. 2d 284, and never advised him to consult an immigration attorney. Finally, he claims that counsel "pressured" him into accepting a non-custodial term deal by "convincing [him] that it was the only way [defendant] could be with [his] wife, who was pregnant at the time." He also stated that he would never have pled to a deportable offense if he had been properly advised, and that he would have proceeded to trial instead. And, he "maintain[s] that [he] was then and [is] now innocent of these charges."

Our review of the record reveals that there was a question as to defendant's immigration status at the time he pled guilty. According to PCR counsel, at that time defendant was a United States citizen. He stated in his brief:

At th[e] time petitioner entered into said plea agreement, he in fact was a citizen of the United States. However, because petitioner only became a citizen a short time before this incident he was extremely concerned about the ramification of the plea on his immigration status. These concerns were very legitimate as his citizenship is now being challenged and he is facing deportation.

The PCR court also believed defendant was a citizen at that time. On November 8, 2012, when the PCR court heard argument on defendant's petition,4 the court noted that defendant, who "had recently obtained his citizenship," was not present at the hearing because, as confirmed by PCR counsel, "he was in federal custody . . . facing deportation." Yet, neither the PCR court nor defendant's PCR counsel ever questioned how a United States citizen could be facing deportation.

Instead, after considering counsels' oral argument and thoroughly explaining the law guiding its decision on the record, the PCR court denied defendant's petition without an evidentiary hearing. It reasoned that there was nothing in the record to implicate the immigration consequences of his plea, because defendant was a United States citizen at that time. Additionally, the PCR court did not credit defendant's claim that he did not understand that he was pleading guilty to a third-degree crime, in light of the contents of the plea form, defendant's acknowledgment at his plea hearing that he read and understood the agreement, and the nature of the offense to which he pled guilty. This appeal followed.

II.

Criminal defendants are entitled to effective assistance of counsel at all stages of adjudication, State v. Hess, 207 N.J. 123, 153 (2011) (citing McConnell v. Rhay, 393 U.S. 2, 4, 89 S. Ct. 32, 34, 21 L. Ed. 2d 2, 4 (1968)), including plea negotiations. Missouri v. Frye, _ U.S. _, _, 132 S. Ct. 1399, 1405, 182 L. Ed. 2d 379, 387 (2012); Lafler v. Cooper, _ U.S. _, _, 132 S. Ct. 1376, 1387, 182 L. Ed. 2d 398, 410 (2012) ("If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it."). That right is guaranteed under the Sixth Amendment, Strickland v. Washington, 466 U.S. 668, 684-85, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 691 (1984), and under the New Jersey Constitution, article 1, paragraph 10, under which "a criminal defendant is entitled to the assistance of reasonable competent counsel." State v. Fritz, 105 N.J. 42, 53-58 (1987).

A defendant's right to effective counsel is violated where "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. In such case, a defendant may challenge his conviction by presenting evidence that 1) counsel's performance was deficient, and 2) the deficient performance actually prejudiced the defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 53-58 (adopting the federal constitutional standard for ineffective assistance of counsel claims as test for violation of right to counsel under New Jersey Constitution).

In deciding the application, a PCR court may exercise its discretion to grant or deny an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992). However, an evidentiary hearing should ordinarily be granted where the relevant facts lie outside the trial record and the attorney's testimony may be required. State v. Porter, 216 N.J. 343, 354 (2013) (citing Preciose, supra, 129 N.J. at 462). A defendant is entitled to an evidentiary hearing if he has made a prima facie showing of his claim, State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006) (citing State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000)), certif. denied, 192 N.J. 66 (2007), meaning he has demonstrated a "reasonable likelihood of succeeding" on the merits. Preciose, supra, 129 N.J. at 463. To this end, a defendant must "do more than make bald assertions that he was denied the effective assistance of counsel[, but] must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also R. 3:22-10e(2) ("A court shall not grant an evidentiary hearing . . . if the defendant's allegations are too vague, conclusory or speculative[.]").

A hearing should be held if the petition involves genuine issues of material fact "which cannot be resolved by reference to the existing record." State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). "As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim" requiring a hearing. Preciose, supra, 129 N.J. at 462-63.

Because the PCR court did not conduct an evidentiary hearing, we review the "factual findings and legal conclusions" de novo to determine if we should disturb the PCR court's determination. State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The first step in our review is to determine whether defendant satisfied the first prong of the Strickland test. That prong requires proof "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed. . . by the Sixth Amendment." 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) (internal quotations omitted).

An attorney provides ineffective assistance when he or she affirmatively misinforms a defendant about the consequences of a plea, Frye, supra, _ U.S. at _, 132 S. Ct. at 1406, 182 L. Ed. 2d at 388 (citing Padilla, supra, 559 U.S. at 372, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297-98), including immigration consequences. State v. Gaitan, 209 N.J. 339, 351-52 (2012), cert. denied, _ U.S. _, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); Nu ez-Valdez, supra, 200 N.J. at 140-42. Moreover, "an attorney must tell a client when removal is mandatory when consequences are certain[.]" Gaitan, supra, 209 N.J. at 380.

Under the second prong of the Strickland test, a defendant must prove there is a "reasonable probability" that counsel's deficient performance affected the outcome of his matter. Fritz, supra, 105 N.J. at 52. A defendant may satisfy this prong by showing "a reasonable probability that, but for counsel's errors, [he or she] would not have ple[d] 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).

Applying these principles, we are persuaded that an evidentiary hearing was necessary to test defendant's assertions of ineffective assistance of counsel and resulting prejudice, especially in light of the obvious confusion about his immigration status at the time he entered into the plea agreement. If defendant was then a United States citizen, his "N/A" response would have been correct, and his argument about the consequence of pleading to a third-degree crime as compared to a disorderly person's offense would have little merit. If, however, he was a resident national of India as indicated in his PSR, then his decision to enter the plea agreement would likely have been affected by his immigration status, and his attorney's knowledge thereof. That evidence lies outside of the existing record for this case.

For the purposes of our present review, we must accept defendant's assertion that counsel did not discuss his immigration status before entering the plea or misadvised defendant about these consequences. Consequently, if defendant was not in fact a citizen, then the erroneous "not applicable" response to question seventeen constituted affirmative misadvice on the subject of immigration consequences. State v. Garcia, 320 N.J. Super. 332, 340 (App. Div. 1999) ("not applicable" response on plea form of non-citizen constituted prima facie evidence of misinformation that misled defendant about possible deportation consequences and warranted evidentiary hearing); see State v. Vieira, 334 N.J. Super. 681, 688 (Law Div. 2000) (defense counsel's performance was deficient where counsel circled "N/A" on plea form of defendant who previously disclosed he was a resident alien and had difficulty reading and writing English).

We are therefore satisfied from our review of the record that defendant established a prima facie claim of ineffective assistance of counsel. If his assertions are true, his attorneys did not advise him properly; and had he been properly informed, defendant likely would not have pled guilty.

Thus, but for counsel's deficient conduct or errors, the proceeding's outcome would have been different. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

III.

We do not reach the same conclusion as to whether defendant understood that he was pleading to a third-degree crime rather than a disorderly persons offense. There is nothing in the record to support that claim other than defendant's bald assertion that he lacked understanding, despite what was clearly indicated on the plea form; despite what the judge said about the charge being amended to a third-degree crime; and despite defendant's confirmation of his understanding of the charges and the contents of the plea form. What we cannot discern is whether he knew the consequences of his action before entering into the plea agreement.

Reversed and remanded for an evidentiary hearing addressing only the issues of defendant's immigration status and whether counsel's actions, if any, regarding that status establish defendant's PCR claim. We do not retain jurisdiction.

1 Defendant's charges arose from his planning and carrying out an assault on his then wife/co-defendant's ex-husband with a sledge hammer. The victim suffered injuries including a fractured skull.

2 Defendant had previously been charged with a federal crime and was serving probation for that charge when he was arrested for the instant offense. Then, while out on bail for the instant offense, defendant was arrested and charged again in New York with a new offense.

3 As stated on the document itself, these reports are to remain confidential except "as may be necessary in subsequent court proceedings involving the sentence imposed or disposition made." We deem the present dispute to fall into the quoted exception.

4 Counsel argued the matter before a different judge than the one who presided over defendant's plea and sentencing hearings.