STATE OF NEW JERSEY v. RICARDO LANDELL

NOT FOR PUBLICATION WITHOUT THE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.

RICARDO LANDELL,

Defendant-Appellant.

________________________________________________________________

June 23, 2015

Submitted February 2, 2015 Decided

Before Judges Lihotz and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-11-0992.

Joseph E. Krakora, Public Defendant, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

Pursuant to a plea agreement, defendant pled guilty to fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). The plea form he executed included the following questions

17. a. Are you a citizen of the United States?

(If no, answer question #17b)

b. 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?

Defendant circled "Yes" to 17.a. In response to 17.b, "No" is circled and crossed out and "Yes" is circled. In addition, at the time he entered his guilty plea, the judge explicitly asked defendant if he was a United States citizen. He replied, "Yes, sir." Defendant also advised that he had no difficulty reading, writing, or understanding English and that he graduated from Bridgeton High School.

Defendant was sentenced to time served (twenty-seven days); Megan's Law registration and address verification requirements, N.J.S.A. 2C:7-1 to -23; and appropriate fines and penalties. He did not file a direct appeal.

Defendant filed a PCR petition on December 28, 2012, after he was in the custody of the United States Citizenship and Immigration Services for deportation. In his petition, defendant stated he "honestly believed" he was a United States citizen at the time he answered questions about his citizenship when entering his guilty plea. When he reached question 17, he first circled "Yes" to 17.a and "No" to 17.b. He then had a discussion with his counsel about his citizenship status. Defendant stated, "Counsel advised me that this did not appear to be an issue whereupon, I crossed out my answer to 17.b and circled 'yes' in response to this question[.]" Defendant then asserted,

If I had not been misled, even though apparently innocently, by my counsel's evaluation of my citizenship, I would never had pled guilty even to a reduced charge. Among other considerations is the fact that I have three daughters that I would not see grow up if I were to be deported. Even if I were to be found guilty and were sent to prison, I still would have been in this country and would have been able to see them[.]

The PCR court denied defendant's petition and set forth its reasons in a written opinion.

Defendant presents the following arguments in his appeal

POINT I

THE DEFENDANT[] WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, PAR. 10 OF THE NEW JERSEY CONSTITUTION.

A. TRIAL COUNSEL BREACHED HIS RESPONSIBILITY TO INVESTIGATE THE MATERIAL FACTS WHEN THE RECORD CLEARLY INDICATED A NEED FOR AN INQUIRY.

B. TRIAL COUNSEL MISINFORMED TH[E] DEFENDANT REGARDING TH[E] IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA.

POINT II

THE DEFENDANT['S] PLEA WAS NOT KNOWING AND VOLUNTARY AND SHOULD BE VACATED.

POINT III

THE DEFENDANT SHOULD BE G[R]ANTED RELIEF OR THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIAL HEARING.

These arguments lack sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), beyond the following brief comments.

To prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, l 04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l 05 N.J. 42, 52 (l987).

Defendant's appellate arguments can be distilled into one contention, that he was denied effective assistance of counsel because his attorney failed to undertake an investigation of his citizenship status under the facts of this case. He has provided no authority for the proposition that an attorney who is told his client is a United States citizen fails to provide effective assistance of counsel if he fails to undertake such an investigation. See State v. Savage, 120 N.J. 594, 617 (1990) ("[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.") (internal quotation marks and citation omitted).

We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-64 (1992).

We note further that defendant provided a factual basis for his guilty plea, the sufficiency of which is not challenged on appeal. Moreover, he has not asserted any colorable claim of innocence. See State v. Slater, 198 N.J. 145, 157-59 (2009).

Affirmed.