STATE OF NEW JERSEY v. FITZROY GREEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05212-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FITZROY GREEN,

Defendant-Appellant.

____________________________________

January 16, 2014

Submitted October 29, 2013 Decided

Before Judges Fisher and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 08-03-00204 and 06-11-01684.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Fitzroy Green appeals from an order of the Law Division denying his amended petition for post-conviction relief. We affirm.

On November 16, 2006, defendant, a resident alien, pled guilty to fourth-degree possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5(b)(12). Defendant was sentenced to a one year period of probation. On June 2, 2008, defendant pled guilty to fourth-degree distribution of marijuana, N.J.S.A. 2C:35-5(a)(1). Defendant was sentenced to a two year period of probation, on condition he serve 180 days in the Union County Jail. Defendant did not file a direct appeal from the aforementioned convictions or sentences.

After he pled guilty to the second offense, defendant was served with a Notice of Deportation from the United States Department of Immigration and Customs Enforcement. The Notice advised that the two offenses to which defendant pled guilty qualified him as a "deportable alien" subject to mandatory removal from the United States. See 8 U.S.C.A. 1227(a)(2)(B)(i).

On June 24, 2010, defendant filed a verified petition for post-conviction relief, subsequently amended, alleging ineffective assistance of counsel. Specifically, defendant claimed plea counsel in each matter failed to advise he would be removed from the United States if he pled guilty. Defendant contends that had he been properly counseled, he would not have entered a plea in either matter but would have proceeded to trial.

To establish a case of ineffective assistance of counsel, a defendant must show that, first, the attorney made errors so serious that the attorney was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Second, the defendant must show that counsel's errors were so serious that defendant was deprived of a fair trial. Id. A defendant seeking to set aside a guilty plea based on ineffective assistance of counsel must show his attorney's performance was not "'within the range of competence demanded of attorneys in criminal cases' and 'there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty but would have insisted on going to trial.'" State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009)(quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).

The PCR judge denied defendant's petition by order dated March 1, 2012. In a written opinion, the PCR judge found that neither attorney's performance had been deficient; therefore, defendant failed to make out a prima facie case of ineffective assistance of counsel. On appeal, defendant asserts the PCR judge's findings were erroneous, claiming the failure to advise of the immigration consequences of a guilty plea was contrary to the standards set forth in Nu ez-Vald z and Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).

Nu ez-Vald z held that a defendant meets the first prong of the Strickland test if the attorney renders false or affirmatively misleading advice about the deportation consequences of a guilty plea. Id. at 140-42. At the time Nu ez-Vald z was decided, an attorney was not required to give any advice about the deportation consequences of pleading guilty; however, if any advice was rendered and it was erroneous or misleading, the first prong of the Strickland test was met.

Within a year Nu ez-Vald z was decided, the United States Supreme Court went further and held in Padilla that the Sixth Amendment obligation to render effective assistance requires criminal defense attorneys to inform clients of the possible immigration consequences of entering a guilty plea. Padilla, supra, 559 U.S. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295. That is, an attorney must now affirmatively provide accurate advice of the deportation consequences of a guilty plea.1 Significantly, our Supreme Court in State v. Gaitan, 209 N.J. 339, 373 (2012), held that, as Padilla established a new rule of law, the holding in Padilla applied prospectively only. Thereafter, the United States Supreme Court reached the same conclusion, finding Padilla did not apply retroactively. Chaidez v. United States, 568 U.S. , , 133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149, 162 (2013)

Here, while defendant alleges his attorneys failed to adhere to the standard enunciated in Nu ez-Vald z, defendant did not provide any evidence that his attorneys rendered false or affirmatively misleading advice about the deportation consequences of pleading guilty. Rather, defendant asserted he did not receive any advice at all from his attorneys on this issue. Even if one or both of the attorneys failed to render any advice about the risk of removal if defendant pled guilty, Padilla is unavailing to defendant, as he pled guilty to both offenses before Padilla was decided.

Accordingly, the PCR judge correctly determined defendant s application for post-conviction relief had to be denied. Defendant could not establish a prima facie case of ineffective assistance of counsel from the fact neither attorney gave any advice on the issue of removal. The remaining arguments raised by defendant, including his claim that the PCR judge should have conducted an evidentiary hearing, lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Affirmed.

1 Padilla held that when the deportation consequences of a guilty plea are "unclear or uncertain," an attorney need do no more than inform a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296.