STATE OF NEW JERSEY v. PRINCE NEEWILLY

NOT FOR PUBLICATION WITHOUT THE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.

PRINCE NEEWILLY,

Defendant-Appellant.

______________________________

April 20, 2016

 

Submitted March 9, 2016 Decided

Before Judges Fuentes and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-07-1694 and 07-04-0797.

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

JamesP. McClain,Atlantic County Prosecutor, attorney for respondent (Mario C. Formica, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Prince Neewilly appeals from a November 7, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

On April 1, 2010, defendant pled guilty to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4), which had been amended from a second-degree aggravated assault charge.

Under the plea agreement, the State recommended that defendant be sentenced to an aggregate prison term of five years with three years parole ineligibility in accordance with the Graves Act, N.J.S.A. 2C:43-6(c). The State also recommended that all other charges be dismissed, which included two counts of first-degree armed robbery. See N.J.S.A. 2C:15-1. At the time of his plea, defendant was on probation for a third-degree conviction for possession of a prohibited weapon (a sawed-off shotgun), N.J.S.A. 2C:39-3(b). Consequently, the State also recommended that any sentence for the violation of probation run concurrent to the five year sentence.

During the plea hearing, counsel and the trial judge all acknowledged that the second-degree charge for unlawful possession of a weapon had been incorrectly identified as a third-degree charge in the indictment. Thus, with the consent of all counsel, the court amended the indictment to reflect that the unlawful possession of a weapon charge was a second-degree crime. That amendment was explained to defendant who acknowledged on the record he understood he was pleading guilty to a second-degree crime. The transcript of the plea hearing reflects the following exchange

THE COURT: Count 5 should've been a - - it should say third - - second degree?

[Defense Counsel]: Yes, that's right. And for my client's benefit, the statute is a second-degree crime.

. . . .

[Defense Counsel]: Judge, could I just explain it to [defendant]?

THE COURT: Yes. Go ahead . . . .

. . . .

THE COURT: Okay. So we're just correcting that it is a second-degree offense, all right.

[Defense Counsel]: Thank you.

. . . .

[The Court]: The offenses you're going to plead guilty to are Count 5 of the indictment, which charges you with unlawful possession of a weapon. That's a second-degree offense. That would have a maximum penalty of ten years' New Jersey [S]tate[] [P]rison. And the third count of the indictment, which has been amended to aggravated assault in the fourth-degree, which would have a maximum sentence of 18 months' New Jersey [S]tate[] [P]rison.

[Defendant]: Yes.

The transcript of the rest of the plea colloquy establishes that defendant agreed to plead guilty knowingly, voluntarily, and intelligently.

On April 16, 2010, before defendant was sentenced, defense counsel, with defendant present, requested a supplemental hearing to clarify defendant's immigration status. Defense counsel informed the court that she had mistakenly assumed that defendant was a United States citizen and had filled out the plea form accordingly. Defense counsel explained that after the plea hearing, she learned defendant was a legal resident of the United States, but was born in Liberia. Accordingly, she requested the court to reopen the plea hearing to ascertain if defendant still wanted to plead guilty after knowing the immigration ramifications of his conviction. The judge, who was not the same judge who accepted his guilty plea, granted defense counsel's request to conduct further proceedings. The judge advised defendant that due to his immigration status, it was "practically certain" that he would be deported if his guilty plea stood.

As the following exchange illustrates, the judge addressed defendant directly on this issue

THE COURT: Now with that - - that understanding, and perhaps understanding what risk that you have, do you want your plea to stand?

MR. NEEWILLY: Yes, I'll take my plea.

THE COURT: You do?

MR. NEEWILLY: Yes.

THE COURT: Okay.

[Defense Counsel]: Okay.

On May 14, 2010, the trial court sentenced defendant in accordance with the plea agreement to a term of five years in state prison with three years of parole ineligibility for the conviction of unlawful possession of a handgun, and a concurrent term of eighteen months for the conviction of aggravated assault by knowingly pointing a firearm under circumstances manifesting extreme indifference to human life. Having also pled guilty to a violation of probation, defendant was terminated from probation.

Defendant did not file a direct appeal concerning his plea or sentence. Instead, in November 2013, defendant filed a pro se PCR petition alleging ineffective assistance of counsel; the court thereafter assigned counsel to represent defendant on his PCR petition. After considering the arguments of counsel and reviewing the briefs submitted, the PCR judge denied the petition without an evidentiary hearing. The PCR judge determined that defendant had not made a prima facie showing of ineffective assistance of counsel.

On this appeal, defendant argues

POINT I: THE LOWER COURT ERRED IN DENYING MR. NEEWILLY'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CLAIM THAT TRIAL COUNSEL WAS INEFFECTIVE.

We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, a "defendant must show that counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Nu ez-Vald z, 200 N.J. 129, 138 (2009). Second, "the defendant must show that [counsel's] deficient performance prejudiced" him or her. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Pierre, 223 N.J. 560, 578 (2015). To show prejudice after entering a guilty plea, a defendant must prove "that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial." State v. Gaitan, 209 N.J. 339, 351 (2012) (alteration in original) (quoting Nu ez-Vald z, supra, 200 N.J. at 139), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).

An evidentiary hearing is necessary only after a defendant meets two conditions. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 354-55 (2013). First, a defendant must establish "a prima facie case in support of [PCR]." R. 3:22-10(b). Second, a defendant must show "there are material issues of disputed fact that cannot be resolved by reference to the existing record." Ibid.

Here, defendant claims that his trial counsel was ineffective in failing to advise him of the potential immigration consequences associated with his guilty plea. The record simply does not support that argument. While trial counsel initially failed to inquire about defendant's immigration status during the plea, after the plea and before the sentence, she ascertained his correct immigration status. She then requested a supplemental hearing. At the hearing defendant was advised that because of his immigration status it was "practically certain" that he would be deported. After being given that advice by the court, defendant stated that he still wanted to stand by his guilty plea. Given this record, defendant cannot satisfy either prong of the Strickland test. His trial counsel addressed the immigration issue before the sentence and there is no allegation that plea counsel gave defendant incorrect advice. Thus, this is not a situation like what happened to the defendants in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), or Nu ez-Vald z, supra, 200 N.J. at 131. Just as significantly, after being advised of the immigration consequences, defendant stated that he wanted to stand by his guilty plea. Thus, defendant has also failed to show prejudice.

Defendant also argues that his conviction for second-degree unlawful possession of a weapon should be vacated because the trial court allegedly impermissibly amended the charge from a third-degree to a second-degree crime at sentencing. Here again, however, the record does not support that argument. The transcript of the April 1, 2010 plea colloquy establishes that the court and counsel recognized that the weapons offense was a second-degree crime, the indictment was accordingly amended, defendant was advised of that amendment, and defendant then knowingly pled guilty to that second-degree crime.

Finally, defendant argues that the conviction for fourth-degree aggravated assault should be vacated because the judgment of conviction indicated that the gun had been pointed at a police officer. The PCR judge found that this error did not warrant PCR relief; rather, the judge granted defendant's request to amend the judgment of conviction. We agree that such an issue does not rise to the level of grounds for post-conviction relief. See R. 3:22-2 (identifying the grounds warranting a PCR).

Affirmed.