STATE OF NEW JERSEY v. ST. LEDGER GAYLE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-03647-13T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ST. LEDGER GAYLE A/K/A

ST. LEDGER N. GAYLE,

Defendant-Appellant.

________________________________________________

July 1, 2015

Submitted April 15, 2015 Decided

Before Judges Fuentes and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 08-01-0097 and 08-01-1931.

Rudnick, Addonizio, Pappa & Casazza, attorneys for appellant (Michael J. Pappa, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Martha K. Nye, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals a March 7, 2014 order of the Law Division denying without an evidentiary hearing his motions to withdraw his guilty pleas on separate indictments which charged him with third-degree possession of a weapon for an unlawful purpose and third-degree terroristic threats. For reasons we state hereafter, we reverse and remand for an evidentiary hearing.

On January 8, 2008, the Monmouth County grand jury returned an indictment charging defendant with third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C: 39-4(d). Subsequently, the grand jury returned another indictment charging defendant with making third-degree terroristic threats, N.J.S.A. 2C:12-3(a). Defendant hired counsel to represent him on the charges after the first indictment had been returned.

On October 6, 2008, defendant entered a retraxit plea of guilty to possession of a weapon for an unlawful purpose under the first indictment and terroristic threats under the second indictment pursuant to a plea bargain in which he would be sentenced to noncustodial probation and the State would dismiss the remaining charges. At that time, defendant was put under oath, and stated he was satisfied with his counsel, had reviewed the discovery, and received answers to any questions he had of counsel. In addition, defendant confirmed he understood and approved the terms of the plea bargain, and understood the rights he was waiving.

At the time the plea was entered, defendant and his attorney had presented the court with a written plea form that answered "[N/A]" in response to question 17, which asked: "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?" However, prior to actually putting the plea on the record, defendant's attorney had placed an "X" through the prior answer and defendant then circled "[YES]," and initialed the revised answer to question 17.

Defendant is a citizen of Jamaica, but holds a "green card," making him a lawful permanent resident of the United States. Defense counsel explained to the judge that he had been unaware that defendant was not a United States citizen when the plea form was initially prepared, and that he amended the form at the time of entry of the plea.

At that point during the plea colloquy, the judge asked defendant if he understood that as a result of his guilty plea, he "could be subject to penalties from immigration," and defendant answered, "Yes." The following exchange concluded the discussion on the record of defendant's exposure to potential immigration consequences arising from his plea

Q. And you went over that and you understand that as set forth in Question Number 17 that by entering this plea of guilty immigration may I'm not saying that they will, but they could take action against you because this is a State court and neither the Prosecutor nor your attorney nor myself have any control over what the federal government does about this. You understand that?

A. Yes.

Defendant thereafter provided a factual basis for his retraxit plea by acknowledging that on the evening of October 5, 2007, he had an "altercation" with another individual during which he got out of his vehicle with a machete in his hand and "threatened" the individual. Further, he acknowledged that on May 3, 2008, he had an "altercation" with the mother of his minor children during which he "threatened" her by saying he "may well chop her up." The judge accepted the plea and on November 28, 2008, sentenced defendant to two years of probation, subject to conditions, on each charge to run concurrently.

On July 27, 2012, the United States Department of Homeland Security issued a complaint seeking defendant's removal from the United States because he had been "convicted of a crime involving moral turpitude" based upon the crimes to which he had pled guilty in October 2008. This notice was served on defendant at some point thereafter, and defendant engaged his present counsel, who promptly filed a motion to withdraw his plea and a petition for post-conviction relief (PCR). Defendant also hired immigration counsel who advised him removal is likely if "the guilty pleas are not vacated."

In support of his motion and petition, both defendant and his present counsel submitted certifications. Defendant stated he is a Jamaican citizen living in the United States since 1994 pursuant to a green card. In his mid-thirties, defendant has three minor children who are citizens of the United States and he pays support for each. He has worked for the same employer as a cable installer for over ten years.

Defendant hired counsel in October 2007, following his first arrest, but at their meeting, no factual details of the incident were discussed. Further, counsel did not discuss potential defenses, nor outline any investigative steps he would take. Rather, during their half hour meeting, counsel told defendant he would be a "good candidate for the pretrial intervention program" and explained the program to defendant.

Defendant did not meet with his counsel again until March 2008, when he was formally arraigned on the charges. Again, according to defendant's certification, he had no discussion with counsel about the facts of the case or potential defenses.

Defendant stated that he retained the same counsel to represent him on the terroristic threats charge, but had no discussion about the details of the charge at any time prior to the date of his plea in October 2008. On that date, counsel gave defendant a copy of the police reports pertaining to the charges in each indictment, and advised him it was "best" to accept the plea offer, implying that "going to jail was a certainty if [he] did not plead guilty."

Counsel "interrupted" defendant when he began to discuss the details of the case, and again advised him to plead guilty. Defendant stated in his certification

I wanted to tell my attorney that I believed I had a legitimate self-defense in the case involving the weapon. I was in my truck when I was threatened with bodily harm by a man who had a problem with my friend. He threw a bottle at my truck and when I stopped, he approached the window and said he was going to kill me and told me to get out of the truck. I was in fear for my safety. I grabbed the weapon, got out of the truck, argued with the man and apparently someone called the police. The police came and I was arrested. No one was hurt. I also believe I have a genuine defense in the terroristic threat case where the victim was the mother of my first two children, and at that time of the allegation, we were involved in a bitter custody battle.

Further, defendant's Jamaican citizenship was never discussed until "[he] was in the middle of pleading guilty in court." At that time, he stated he was "taken by complete surprise" and "was never told that [he] could be deported as a result of the guilty plea." He added that "had [he] known [he] could have been deported [he] would not have entered the guilty pleas."

Following oral argument on the motion and the petition, the Law Division judge on March 7, 2014, issued a twenty-five page written opinion reviewing the procedural history of the case and the arguments of the parties. After considering the standards established by State v. Slater, 198 N.J. 145 (2008), the judge concluded that defendant's motion to withdraw his plea would be denied because defendant presented "no evidence [that] counsel provided any false or misleading advice regarding . . . immigration consequences." The judge also stated there is "ample evidence" that defendant "understood the immigration consequences" based upon the plea form and the "judge's explanation of such consequences."

Turning to defendant's PCR petition, the judge denied relief, focusing largely on the failure of counsel to explain the immigration consequences of the plea. The judge further found that defendant's certification did not create a "colorable claim of innocence" because it failed to set forth "sufficient factual allegations" to support his assertions of self-defense, and the "custody battle" with the other alleged victim was irrelevant.

This appeal followed.

We do not disagree with much of the motion judge's erudite statement of the law, or the factual review set forth in his comprehensive twenty-five page written opinion. We part company with him, however, on whether defendant is entitled to an evidentiary hearing. In our view, the certifications of both present counsel and defendant are sufficiently specific to require an evidentiary hearing, and consequently we must vacate the orders at issue and remand the matter for an evidentiary hearing.

A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel must show that: (1) counsel's performance was deficient; and (2) the deficiency prejudiced the defense. State v. Nash, 212 N.J. 518, 542 (2013) (citations omitted). With respect to a guilty plea, our Supreme Court has explained that

[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases[]"; and (ii) "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial."

[State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996) (first and third alteration in original) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973); Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).]

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. Nash, supra, 212 N.J. at 541; State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462.

To establish a prima facie claim of ineffective assistance of counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95.

In considering a PCR petition, a court has discretion to grant or deny an evidentiary hearing. Preciose, supra, 129 N.J. at 462. 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) (citation and internal quotation marks omitted). 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), 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." Cummings, supra, 321 N.J. Super. at 170; see also R. 3:22-10(e)(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 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). If so, we next determine under the second prong of the Strickland test, whether defendant proved there is a "reasonable probability" that counsel's deficient performance affected the outcome of his matter. Fritz, supra, 105 N.J. at 52.

Guided by these standards, it is clear that defendant was entitled to an evidentiary hearing on the motion and the PCR petition. Reviewing the facts most favorably to defendant, his first attorney did nothing other than accept a retainer and advise defendant to plead guilty after he reviewed the police reports. Counsel did not elicit from defendant any explanation of the events leading to the charges; undertook no investigation; failed to explore the potential for a self-defense claim as to the first set of charges; failed to ascertain any facts pertaining to defendant's "custody battle" with his children's mother that might affect her credibility; and led defendant to believe that incarceration was a certainty if he were convicted on any of the charges, notwithstanding that defendant had no prior criminal record.

It need hardly be stated that if defense counsel did nothing other than urge his client to accept a plea, without bothering to even ascertain the client's narrative of the events underlying the criminal charges against him, or to explore potential defenses to the charges, such complete indifference to his professional duties would not be "within the range of competence demanded of attorneys in criminal cases." DiFrisco, supra, 137 N.J. at 457. Further, under these circumstances, defendant's assertion that he would have proceeded to trial but for counsel's errors, seems not only a reasonable probability but a compelling certainty.

Now it may be that these "facts" may not survive the scrutiny of an evidentiary hearing; however, at this point, defendant's factual averments are sufficiently specific to warrant a hearing. We are mindful in reaching this conclusion that defendant's factual basis at the plea hearing consisted of not much more than his agreement with a few conclusory statements mixing law and fact uttered by his lawyer. We do not condone this type of insouciance, but as it is not advanced as error by defendant, we simply note our uneasiness with the factual basis for the pleas of guilt.

We also observe that while question 17 on the plea form specifically mentioned "deportation" as a possible consequence of the plea, the judge's questioning of defendant on the record was far more vague, referring only to "penalties from immigration" and the potential for an "action" against him. While, in other circumstances, the equivocal suggestion that a defendant could be subject to an "action" or "penalties" by the federal government, would be insufficient to outweigh the specific reference to "deportation" stated in question 17 on the plea form, we cannot conclude that that statement must be given conclusive weight here, given the complete indifference of his counsel, and defendant's claim that he was "surprised" and "shocked" to learn during the plea colloquy that his immigration status was an issue at all.

We reverse the order denying his motion to withdraw the plea and denying his petition for post-conviction relief, and we remand the matter to the Law Division for an evidentiary hearing on all issues. We do not retain jurisdiction.