STATE OF NEW JERSEY v. KENNEDY HALL

NOT FOR PUBLICATION WITHOUT THE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.

KENNEDY HALL,

Defendant-Appellant.

__________________________________

August 17, 2015

Submitted March 2, 2015 Decided

Before Judges Lihotz and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 00-04-00349.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief.)

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kennedy Hall appeals from the Law Division's January 6, 2014 order denying his petition for post-conviction relief (PCR), after an evidentiary hearing. Defendant filed his petition in 2010, which the trial court denied without an evidentiary hearing because it found the petition time-barred. We reversed that determination and remanded for an evidentiary hearing. See State v Hall, No. A-4356-10 (App. Div. August 17, 2012) (slip op. at 2, 9-10). In remanding the matter, we specifically directed

On remand, a hearing will allow the court to analyze whether defendant was affirmatively misinformed about his immigration status and whether he suffered sufficient prejudice to warrant the withdrawal of his plea. See [State v.] Nu ez-Vald z, 200 N.J. [129,] 142 [(2009)] (interpreting Strickland's[1] prejudice prong as "'but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial'" (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985) (alteration in original)).

[Id. at 9 (last alteration in original).]

The PCR court conducted the evidentiary hearing in 2013. Afterward, it entered its order denying the petition, supported by a written decision. In his appeal from the court's order, defendant argues

[DEFENDANT] IS ENTITLED TO RELIEF ON HIS CLAIM THAT COUNSEL WAS INEFFECTIVE FOR MISINFORMING HIM OF THE DEPORTATION CONSEQUENCES OF HIS PLEA.

In response, the State disagrees and argues the PCR court properly denied defendant's petition after the hearing.

We have considered these arguments in light of our review of the record and the applicable principles of law. We affirm.

I.

In our earlier opinion, we summarized the circumstances leading to defendant's conviction and his PCR claims

On September 25, 2000, pursuant to a plea agreement, defendant, a Jamaican national, pled guilty to two counts of first-degree armed robbery, N.J.S.A. 2C:15-1, and was sentenced to concurrent terms of ten years in state prison subject to an 85-percent period of parole ineligibility, as mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2, and a five-year period of parole supervision upon release. The remaining charges in the indictment were dismissed in accordance with the plea agreement.

On March 19, 2009, defendant was released from state custody. However, he was immediately transferred to federal Immigration Customs Enforcement (ICE), pursuant to an immigration detainer, pending deportation proceedings.

On June 8, 2010, defendant filed a PCR petition, alleging counsel was ineffective because [s]he failed to warn defendant about the deportation consequences of his guilty plea. In support of his PCR petition, defendant attached the plea agreement form, which reflected the answer "N/A" in response to Question 17, asking: "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?" Further, the verified PCR petition stated: "Each answer on the [p]lea [f]orm was circled by counsel. Counsel read the [p]lea [f]orm questions to Petitioner. Petitioner did not read the questions himself." Finally, the record from defendant's plea hearing includes no discussion of question seventeen or deportation consequences of a conviction.

[Id. at 2-3 (first alteration added, all others in original).]

Defendant and his trial counsel testified at the evidentiary hearing.2 Defendant stated that at the time he entered his guilty plea, he understood he was exposed to a possible sentence of forty years in prison. He confirmed he reviewed the plea form and discovery with his attorney before entering his plea and defendant testified he decided to plead guilty because his attorney explained to him "that was [his] best option."

According to defendant, he "momentarily" discussed with plea counsel the immigration consequences of pleading guilty. Defendant stated his attorney read to him question number seventeen on the plea form regarding his understanding of the immigration consequences of his plea, and she filled out the "N/A" response on the form after they discussed his status. He stated

[S]he asked . . . what's my status? I told her, I'm not sure. You'd . . . have to check with my mom, but I know I'm not [il]legal, . . . as far as dealing with immigration, . . . as far as I know, I'm not an illegal.

Defendant told the PCR judge that he "wasn't sure" about his immigration status and that his mother was the person familiar with it at the time. Defendant later learned he was a "green card holder," which meant he could be deported if he was convicted of a crime. Defendant also stated when he told his plea counsel he wasn't sure about his status, she "brushed over it," and circled the response to question seventeen without further discussion. When asked to clarify his response about what he told his attorney, defendant stated "She asked me and I told her I'm not sure . . . but I know I have a card of some sort." In response to the PCR judge's questioning, defendant later testified to what plea counsel told him about the possibility of being deported

THE COURT: So, are you telling me basically [plea counsel] gave you no information about your status?

[DEFENDANT]: Oh, . . . she asked me what my status was. I told her I wasn't sure. . . .

THE COURT: And wait. You told her you weren't sure and then . . . .

[DEFENDANT]: Then she moved on to [question] eighteen.

THE COURT: So she gave you information about the consequences of the plea with reference to immigration?

[DEFENDANT]: She in fact, she just told me that I could get deported if I wasn't a natural citizen. . . .

THE COURT: . . . She told you you could be deported if you were not a citizen?

[DEFENDANT]: Yes.

[(Emphasis added).]

Defendant continued his testimony by stating he would have "take[n his] chances" by going to trial if he had known he would be subject to deportation by pleading guilty because "[t]he only thing [he] knew [was] America and [his] whole family, [his] whole life is in the States." He then denied being involved in the crime to which he pled guilty and, had he known he could be deported, he would have told his story to the jury.

On cross examination, defendant confirmed he told police at the time of his arrest in 1999 that he was born in Jamaica; however, he did not know whether he was a citizen. He only knew he "had a card." He also stated again that plea counsel spoke to him about the possibility of being deported and that he was born in Jamaica. When questioned about his response to question number seventeen on the plea form, he stated he understood the question and his trial counsel circled "N/A" because

She said . . . it didn't matter, because I had my paperwork, because . . . I told her I had my card and she's like, all right. It . . . just doesn't . . . apply to you and kept on going.

. . . .

I told her I know we went to immigration and I know they granted me a card. I don't know the details of this, because I was a kid and my mother dealt . . . with all of that, so she had to ask my mother furthermore or confer with her to see what exact level. The only thing . . . I knew is that I went through the immigration process . . . when I first arrived.

[(Emphasis added).]

Defendant concluded his testimony under questioning by the PCR court about the inconsistency between his denial of being involved with the underlying charges and his testimony when he pled guilty confirming the details of his participation in these crimes. In response to further questioning by the court, defendant confirmed that given the choice of facing deportation if he was convicted after a trial and faced forty years in prison, or being deported after pleading guilty and being sentenced to twelve years or less, he would have chosen the latter.

Defendant's trial counsel, an experienced public defender for approximately twenty-four years, testified about her advice to defendant regarding the possibility of him being deported as a result of pleading guilty. She admitted, however, that she initially had very "little recollection" about defendant's case, but after reading the sentencing transcript she remembered "a lot more." Nevertheless, she did not have "a specific recollection" of the day defendant entered his guilty plea, even though she reviewed the transcripts from the plea hearing, nor did she have any recollection about discussing defendant's citizenship status with him at any time.

Counsel described her usual procedure for reviewing plea forms with her clients. That process included insuring her client had the "capacity to understand how the system works" and then "on plea day, . . . fill[ing] out the paperwork together . . . [she] would go through each question and . . . explain every aspect of each question." All the handwriting on the plea form would be hers but "the client watches [her] circle [the responses] and makes sure [she] circle[s] the right thing that was told to [her]."

Discussing a client's immigration status was part of counsel's regular practice. She testified that she was aware of the strict enforcement of immigration laws at the time of defendant's plea. Counsel explained that she would only circle "N/A" in response to question seventeen if, based on her conversation with her client, she understood that "person is either an American citizen by birth or became a citizen." If there was any question about a client not being a citizen, she "would almost always talk about the implications and the importance of being honest." Counsel also stated that if a client was to be deported, she would attempt to negotiate a shorter recommended sentence so taxpayers would not have to be burdened by supporting a defendant while he or she remained incarcerated. Further, if any additional investigation had to be completed regarding a client's immigration status, she would have made notes on the plea form, and seek an adjournment. She confirmed no such notations existed on defendant's form. Also, before defendant was sentenced, she was already under the impression that defendant was not a person "who could be deported."

Counsel acknowledged, however, that she could have made a mistake as to advising defendant about the consequences of his guilty plea if she had been "rushed or something." Though, if the issue came up and she knew he was not a citizen, minimally, she would have "gone back and talked to him [and, i]f that happened . . . [she] certainly would have remembered that." She confirmed defendant's criminal intake forms, which she would have reviewed, indicated he was born in Jamaica, was not a United States citizen, and as to his alien status, it stated "green card," but as these forms were not always correct, she would discuss a client's status with them directly rather than relying on the forms. The form's information, however, would have triggered "more intense discussions" with the client and, if necessary further investigation. However, based on the fact that she made no notes on the plea form about question seventeen, other than circling "N/A," there was no question in her mind about defendant not being subject to deportation. Had there been any issue, she would have "put an asterisk and wr[o]te there's a pending question about his citizenship."

Also, under questioning by the court about why she would circle "N/A" in response to question seventeen, she stated

[I]t was not all that uncommon for somebody to think that they were an American citizen or for some reason or the Uniform [intake form] was wrong. So, the only reason why I would put in N/A, especially pre-9/11 and especially in a case this serious would be is if I believed he was an American citizen and would not be deported or would not face immigration issues.

In addition, she confirmed that she understood that if defendant was not a citizen, a guilty plea could lead to deportation, even if he had a green card and was in the country legally.

Counsel also testified about her opinion of defendant's chances of succeeding at trial. She described his case as "triable" but "problematic" because there were "some good witnesses," but also "two bad witnesses" who would testify. Compounding defendant's problems was the possibility of the admission of evidence from an unrelated domestic violence matter involving a gun3 "[a]nd while most of the other evidence pointed to [defendant's co-defendant] as being the more serious one, not all of the evidence showed that [defendant] was [a] reluctant" participant in the crime. Moreover, "everybody agreed [defendant] was [at the scene of the crime] with [his codefendant,] . . . the bad guy." The only "question was, was he reluctant or surprised by what the co-defendant did." Although "[t]here was a defense . . . there were also witnesses who did not say [defendant] was a reluctant participant."

After considering the evidence, the PCR court entered its order denying defendant's petition for relief, finding defendant failed to prove either prong under Strickland, for the reasons stated in its written decision. In that decision, the PCR judge stated while it was possible that trial counsel erred in completing the plea form regarding question seventeen, it was "highly unlikely" based on her "logical and credible" testimony about her "meticulous and professional practice as a seasoned criminal trial attorney with extensive experience in [dealing with] immigration issues." The court concluded defendant failed to establish "under Nunez-Valdez that . . . trial counsel affirmatively mislead him with regard to the deportation consequences of his guilty plea." The court also found it was unlikely defendant would have not pled guilty pursuant to the plea agreement if he was not told about the deportation consequences because "while defendant was a sympathetic character and had a 'triable case,' . . . the stakes were high and there were several witnesses whose statements were quite harmful to the defendant." Also, "defendant testified he knew he was facing deportation should he be convicted at trial."

II.

PCR "'is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)). Our review of an order granting or denying PCR requires consideration of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 416 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We defer to a PCR court's factual findings and will uphold those findings that are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013) (citations omitted). We are also obliged to defer to "trial courts' credibility findings." State v. Locurto, 157 N.J. 463, 474 (1999). However, a PCR court's interpretations of law are provided no deference and are reviewed de novo. Nash, supra, 212 N.J. at 540-41.

It is the PCR petitioner's burden to establish ineffective assistance of counsel by proving, by a preponderance of the evidence, that

(1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result. Strickland, [supra,] 466 U.S. [at] 687, 694, 104 S. Ct. [at] 2064, 2068, 80 L. Ed 2d [at] 693, 698 (1984); [Preciose], supra, 129 N.J. [at] 459 (reciting preponderance of the evidence standard of proof); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).

[State v. L.A., 433 N.J. Super. 1, 13 (App. Div. 2013).]

To establish a prima facie case of ineffective assistance of counsel under the first prong of the Strickland test, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires a showing, "that counsel was not functioning as the counsel guaranteed by the Sixth Amendment." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation and internal quotation marks omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). To do so, a defendant must "identify specific acts or omissions that are outside the wide range of reasonable professional assistance." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "The test is not whether defense counsel could have done better, but whether [counsel] met the constitutional threshold for effectiveness." Nash, supra, 212 N.J. at 543. When a guilty plea is contested, counsel's performance is not deficient if "a defendant considering whether or not to plead guilty to an offense receives correct information concerning all of the relevant material consequences that flow from such a plea." State v. Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012).

In Nu ez-Vald z, supra, 200 N.J. at 143, the Court held a defendant can demonstrate ineffective assistance of counsel by proving "inaccurate information from counsel concerning the deportation consequences of his plea," resulting in his guilty plea. Counsel is obligated to avoid providing a defendant with "false or misleading information" about those consequences. Id. at 138.4 We have previously found counsel's circling "the 'N/A' answer to question 17 supported [a defendant's] position," such that "a prima facie case of misinformation had been established." State v. Garcia, 320 N.J. Super. 332, 340 (App. Div. 1999).

Strickland's second prong requires a defendant to "show that the deficient performance prejudiced the defense." State v. Taccetta, 200 N.J. 183, 193 (2009) (citations and internal quotation marks omitted). Under the second prong, prejudice is not presumed and must be proven by the defendant. Fritz, supra, 105 N.J. at 52. "A defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.

When a defendant pleads guilty, the defendant must establish that there is a reasonable probability he or she would not have pled guilty and insisted on going to trial, but for counsel's deficient performance. Gaitan, supra, 209 N.J. at 351. The defendant must prove that, "had he been properly advised, it would have been rational for him to decline the plea offer and insist on going to trial and, in fact, that he probably would have done so . . . ." State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (citation omitted). "[A] petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, supra, 559 U.S. at 372, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297. This "is an exacting standard: [t]he error committed must be so serious as to undermine the court's confidence in . . . the result reached." State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (citations and internal quotation marks omitted).

Turning to the first prong of Strickland, although counsel was unable to recall her specific conversation with defendant and could only speak generally to her common practice, the PCR judge found defendant's plea counsel to be "logical and credible" and determined defendant failed to prove that counsel advised him that he would not be deported. We find no reason to disturb this determination.

We conclude from our review of the record that the PCR judge relied on substantial credible evidence in determining that defendant's plea counsel provided adequate representation. The evidence in the record included the fact that, despite the error in response to question seventeen on defendant's plea form, as defendant testified, he was properly advised about the immigration consequences of his plea, rebutting any presumption of ineffective assistance. Also, defendant knew he was born in Jamaica and further that he had been to immigration. Other than his own unsupported statements about not being sure of his status, his claims of not having been told about the possibility of deportation were belied by his own testimony to the contrary.

Although we agree with the PCR judge's determination that there was no deficient performance, for thoroughness we turn to the second prong of the Strickland test.

Defendant testified had he known he would be deported, he would have challenged the charges and proceeded to trial. However, the PCR judge disagreed, finding the second prong of the Strickland test was not satisfied because defendant did not prove he would have proceeded to trial even if counsel's performance had been deficient. The PCR judge noted the problematic evidence against defendant and the severe sentence which confronted him if he were convicted after a trial, as compared to after a guilty plea. We find no reason to disturb the PCR court's determination. The PCR judge relied on substantial credible evidence to support his conclusion, and defendant offered only his own bald assertions to prove that he would have proceeded to trial.

In sum, as defendant made no claim of receiving specific misinformation from plea counsel beyond circling "N/A" on the plea form, defendant, who reads and understands English, is charged with understanding the warning contained in question seventeen that a guilty plea for non-citizens could result in deportation, especially because he failed to prove counsel offered either "erroneous" information or made an actual misrepresentation concerning the immigration ramifications. Garcia, supra, 320 N.J. Super. at 339. To the contrary, he confirmed counsel gave him correct advice about the likelihood of a non-citizen being deported. Also, assuming he was not properly informed of the deportation consequences, defendant's plea deal was quite favorable making it at least questionable whether defendant would have gone to trial had he been advised of any possible deportation. After all, a trial loss would not only have subjected him to deportation but would also raise the probability of a significantly more severe sentence.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 674, 692 (1984).

2 Defendant did not appear in person for the hearing as he had been deported in 2009. As a result, the PCR court allowed defendant to appear and testify via "Skype," an internet based video conferencing service.

3 The domestic violence evidence connected defendant to the gun used in the armed robberies to which he pled guilty.

4 Subsequent to defendant's entry of his guilty plea, the United States Supreme Court expanded an attorney's obligation to require counsel to inform a defendant entering a guilty plea, regarding the relevant mandatory deportation law if it is "succinct, clear, and explicit." Padilla v. Kentucky, 559 U.S. 356, 368, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 295 (2010). The Court made clear counsel's "failure to advise a noncitizen client that a guilty plea will lead to mandatory deportation deprives the client of the effective assistance of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J. Super. 329, 331 (App. Div. 2012) (citing Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296). This expanded obligation was not, however, applicable to defendant because in Chaidez v. United States, __ U.S. __, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), the United States Supreme Court held Padilla imposed a new obligation and announced a new rule of law. Accordingly, its holding would be applied prospectively and "[u]nder Teague[ v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075, 103 L. Ed. 2d 334, 356 (1989)], defendants whose convictions became final prior to Padilla, therefore cannot benefit from its holding." Chaidez, supra, __ U.S. at ___, 133 S. Ct. at 1113, 185 L. Ed 2d at 162.