STATE OF NEW JERSEY v. KEITH BROWN

NOT FOR PUBLICATION WITHOUT THE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.

KEITH BROWN, a/k/a BYRON

MILLER,

Defendant-Appellant.

__________________________________

February 10, 2016

Submitted February 2, 2016 Decided

Before Judges Reisner and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 90-01-0008 and 90-01-0009.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief).

AngeloJ. Onofri,Acting MercerCounty Prosecutor, attorney for respondent (Laura Sunyak,Special DeputyAttorney General/Acting Assistant Prosecutor,of counsel and on the brief).

PER CURIAM

Defendant Keith Brown appeals from a July 28, 2014 order denying his petition for post-conviction relief (PCR). He presents the following issue

DEFENDANT SHOULD BE ENTITLED TO AN EVIDENTIARY HEARING UNDER STATE V. GAITAN AND UNITED STATES V. OROCIO

Finding no merit in that contention, we affirm.

Defendant, a Jamaican citizen, pled guilty in 1990 to two counts of possession of marijuana with intent to distribute in a school zone, N.J.S.A. 2C:35-1. On February 21, 1991, he was sentenced to three years of probation conditioned on serving 364 days in the county jail.1

In 2013, defendant filed a PCR petition asserting that he was being deported based on the 1991 drug conviction, and stating: "If I had fully appreciated how the 1991 conviction might one day lead to my deportation, I would have never entered a plea." His petition did not allege that his trial counsel affirmatively mis-advised him concerning the immigration consequences of his guilty plea. See State v. Nu ez-Vald z, 200 N.J. 129, 135-40 (2009).

Because defendant waited twenty-two years to file the petition, the transcripts of the plea and sentencing hearings were unavailable. However, the plea form, which defendant signed, set forth a "yes" answer to question sixteen: "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?" Above that question was handwritten "(Jamaican citizen)."

The information provided in question sixteen was sufficient under the case law as it existed at the time defendant entered his guilty plea. See State v. Gaitan, 209 N.J. 339, 373-74 (2012), cert. denied, __ U.S. __, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013); see also Nu ez-Vald z, supra, 200 N.J. at 139-40. Years later, the Supreme Court held that defense attorneys have a professional obligation to provide their clients with additional immigration-related information. See Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010). However, the holding in Padilla is not to be applied retroactively. Chaidez v. United States, 568 U.S. __, __ 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013)2; Gaitan, supra, 209 N.J. at 380.

Consequently, defendant did not present a prima facie case that his counsel provided ineffective representation in the 1991 plea process, see Gaitan, supra, 209 N.J. at 350-51, and he was not entitled to an evidentiary hearing on his PCR petition. Id. at 375-76; see also State v. Preciose, 129 N.J. 451, 463-64 (1992).

Affirmed.

1 In 1992, defendant violated probation and served four years in prison. He did not file a direct appeal from the 1991 or 1992 judgments of conviction. The trial court gave defendant "the benefit of the doubt" in determining that defendant's 2013 PCR filing would not be dismissed as untimely, and the State has not argued the issue on this appeal; hence we do not address that question.

2 Defendant's reliance on United States v. Orocio, 645 F.3d 630 (3d Cir. 2011), is misplaced because that case was abrogated by the Court's decision in Chaidez. See Chaidez, supra, 568 U.S. at ___ n.2, 133 S. Ct. at 1107 n.2., 185 L. Ed. 2d at 155 n.2.