STATE OF NEW JERSEY v. OMAR LEWIN
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0713-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OMAR LEWIN,
Defendant-Appellant.
_______________________________
Submitted January 9, 2018 – Decided May 9, 2018
Before Judges Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment Nos.
00-08-2284 and 07-08-2813.
Joseph E. Krakora, Public Defender, attorney
for appellant (Anderson D. Harkov, Designated
Counsel, on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Tiffany
M. Russo, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Omar Lewin, a non-citizen of the United States, was
convicted of third-degree receipt of stolen property in 2000;
violation of probation (VOP) in 2007; and third-degree eluding,
third-degree possession of a weapon (an automobile) for an unlawful
purpose, and fourth-degree resisting arrest, (collectively the
eluding incident) in 2008. The former and latter convictions were
based upon guilty pleas. None of the convictions were appealed
nor challenged in any way until defendant was threatened with
deportation six-and-a-half years after his last conviction, when
the United States Department of Homeland Security (DHS) served him
with a detention notice, an arrest notice, and a Notice to Appear
for deportation proceedings due to his convictions for receiving
stolen property and the eluding incident.1 In response, six months
later, defendant filed a petition for post-conviction relief (PCR)
– beyond the five-year time limitation under Rule 3:22-12(a)(1)
following his convictions – contending the two different counsel
who represented him in those matters wrongly advised him that he
would not be deported due to entering guilty pleas.
In denying relief without an evidentiary hearing, the PCR
court explained in its oral decision that defendant did not
establish excusable neglect under Rule 3:22-12(a)(1)(A) to extend
the five-year limitation period to seek PCR. The court found
defendant was aware in 2000 that he could be deported for the
1
Defendant is not presently confined.
2 A-0713-16T1
ensuing conviction because he indicated "Yes" to question 17 of
his plea form, 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?" The court further reasoned that since
defendant was deportable for the 2000 conviction, it was irrelevant
what advice counsel gave him about the immigration consequences
of pleading guilty for the eluding incident in 2007 because under
the PCR two-prong test in Strickland v. Washington,
466 U.S. 668,
687, 694 (1984), there could be no showing the advice caused him
harm. In rejecting defendant's claim to withdraw the guilty pleas
to VOP and to possession of a weapon for an unlawful purpose due
to lack of a factual basis in his plea allocution, the court
maintained that he failed to make a colorable assertion of
innocence as required by State v. Slater,
198 N.J. 145, 158 (2009).
In this appeal, defendant contends the PCR court erred in
finding that the time bar for filing his petition should not be
relaxed, and that he was entitled to an evidentiary hearing because
he established a prima facie case of ineffectiveness of counsel
of being misadvised regarding the immigration consequences of his
guilty pleas. He also argues that the court should have vacated
his convictions for VOP and possession of a weapon for an unlawful
purpose as his guilty pleas lacked a factual basis for the
3 A-0713-16T1
offenses; and that counsel was ineffective for not assuring that
a factual basis was given.
For the reasons that follow, we reverse the court's ruling
not to vacate the convictions for VOP and possession of a weapon
for an unlawful purpose. Regarding the VOP conviction, the record
indicates that defendant did not plead guilty and we now vacate
because he was not afforded due process in the VOP hearing.
Furthermore, we reverse and remand for an evidentiary hearing
because defendant established a prima facie case of ineffective
assistance in being misadvised about the immigration consequences
of his convictions in 2000 and 2008, which also is the reason for
relaxing the five-year limitation period.
I.
Because the determination of whether the five-year time bar
of Rule 3:22-12(a)(1)(A) is relaxed turns on defendant's
contention that counsel provided ineffective assistance by
misadvising him about the immigration consequences of his guilty
pleas — we thus begin by discussing the merits of that claim before
commenting on the petition's timeliness.
To prove ineffective assistance of plea counsel, a defendant
must show that counsel's performance was deficient and but for
counsel's errors, there is a reasonable probability that defendant
would not have pled guilty. Strickland,
466 U.S. at 668, 687,
4 A-0713-16T1
694; State v. DiFrisco,
137 N.J. 434, 457 (1994). The PCR court
must consider the facts in the light most favorable to the
defendant to determine if a defendant has established a prima
facie claim. State v. Preciose,
129 N.J. 451, 462-63 (1992).
Because defendant's convictions predated the Supreme Court's
seminal 2010 opinion in Padilla v. Kentucky,
559 U.S. 356, 367
(2010), concerning deportation consequences to a criminal
defendant, his claims are governed by the standards of State v.
Nunez-Valdez,
200 N.J. 129, 143-44 (2009). Under those pre-Padilla
standards, a defendant seeking relief based upon post-conviction
deportation consequences can only prevail if he demonstrates that
his prior counsel affirmatively provided him with misleading
advice about such consequences flowing from a guilty plea. Id.
at 139-43; see also State v. Santos,
210 N.J. 129, 143 (2012).
Thus, the previous standard under State v. Chung,
210 N.J. Super.
427, 431 (App. Div. 1986) (citing State v. Reid,
148 N.J. Super.
263 (App. Div. 1977)), that a defendant's failure to understand a
"collateral consequence" of his guilty plea, such as immigration
status or possible removal, was not a basis to disturb an otherwise
knowing and voluntary guilty plea. A trial counsel therefore had
no duty to inform a defendant of such consequences, and was deemed
constitutionally ineffective only if he or she misinformed his or
5 A-0713-16T1
her client about the immigration consequences of pleading guilty.
State v. Gaitan,
209 N.J. 339, 375 (2012).
A court reviewing a PCR petition based on claims of
ineffective assistance has the discretion to grant an evidentiary
hearing only if a defendant establishes a prima facie showing in
support of the requested relief. Preciose,
129 N.J. at 462. The
mere raising of a claim for PCR does not entitle a defendant to
an evidentiary hearing. State v. Cummings,
321 N.J. Super. 154,
170 (App. Div. 1999). The court should only conduct a hearing if
there are disputed issues as to material facts regarding
entitlement to PCR that cannot be resolved based on the existing
record. State v. Porter,
216 N.J. 343, 354 (2013).
Here, defendant makes a prima facie showing that his counsel
were ineffective in advising him of the immigration consequences
concerning his three guilty pleas. In 2000, when pleading guilty
to receiving stolen property, defendant circled "Yes" to plea form
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?" Yet, in addressing defendant at
sentencing before imposing a five-year probationary term,2 the
2
The plea agreement had called for a maximum three-year prison
term, but the court indicated at the plea hearing that it would
sentence defendant to a term of probation.
6 A-0713-16T1
judge stated: "You were born in Jamaica, you understand – I have
no idea you understand that there could be adverse immigration
consequences as a result of this plea. You're currently on
probation; correct?" While defendant stated he was no longer on
probation, he never indicated to the court nor did the court ask
again whether he was aware of the deportation immigration
consequences of his plea.3 Moreover, his petition contends that
counsel told him not to worry about being deported because his
crimes were not serious enough. Defendant asserts he would not
have pled guilty had he not been misadvised that he would not be
subject to deportation for his convictions.
In 2002, defendant moved to Georgia and was charged with a
VOP when he failed to: report to probation, pay fines, and appear
at a VOP hearing. About six years later, defendant was apprehended
in Irvington after he collided his vehicle into another vehicle
while eluding the police. This led to a multi-count indictment
for second-degree eluding the police; second-degree aggravated
assault by eluding (three counts); fourth-degree possession of a
weapon (an automobile) under circumstances not manifestly
appropriate for its lawful use; third-degree possession of a weapon
3
The plea form currently in effect has been significantly revised
since 2000 and 2007, to avoid the concerns that are raised in this
appeal.
7 A-0713-16T1
(an automobile) for an unlawful purpose; and fourth-degree
resisting arrest.
Before resolving the indictment, defendant appeared at a VOP
hearing on January 12, 2007, when the court resentenced him on the
2000 receiving stolen property conviction to a four-year prison
term. Defendant contends in his merits brief that he pled guilty
to VOP. Instead, the record reveals that counsel, who also
represented defendant in 2000, explained to the VOP court that
defendant was under the impression that his probation supervision
had been transferred to Georgia where he moved. The court was
unpersuaded, and without counsel stating defendant intended to
plead guilty, remarked: "Best as I can see, he hasn't done
anything. All right, I accept your guilty plea Mr. Lewin to your
violation of probation. I vacate the sentence of probation imposed
. . . on November [17], 2000, and re-sentence as follows."
Apparently, the court misspoke because during the VOP hearing
defendant never spoke – and was not given the opportunity to do
so – and counsel never stated that he was pleading guilty. No
mention was made during the hearing that defendant could face
immigration consequences for the VOP or the underlying conviction.
Seven months thereafter, on October 29, the indictment was
resolved when defendant pled guilty to a downgraded charge of
third-degree eluding, third-degree possession of a weapon (an
8 A-0713-16T1
automobile) for an unlawful purpose, and fourth-degree resisting
arrest. As with his 2000 guilty plea, defendant contends his new
counsel also told him not to worry about being deported because
his crimes were not serious enough. Despite being a non-citizen
and contrary to his "Yes" response to question 17 on his plea form
in 2002, this time defendant circled "N/A" meaning "not
applicable." According to defendant, he did so because counsel
mistakenly told him that his immigration status was irrelevant for
the charges. Since there was no discussion between the court and
defendant regarding the response or defendant's understanding of
the immigration consequences of his plea, the record does not
belie defendant's assertion. On January 2, 2008, he was sentenced
to three years of probation in accordance with the plea agreement.
Considering the plea and sentencing colloquies, coupled with
the confusing "N/A" response in the eluding incident plea form,
in the light most favorable to defendant, his assertions that his
counsel gave him misleading advice about the immigration
consequences are more than bald assertions of ineffectiveness to
support a prima facie case.
And because we conclude defendant established a prima facie
claim that counsel were ineffective for misadvice about the
immigration consequences, logic dictates that he established
excusable neglect to relax the time bar for not filing for PCR
9 A-0713-16T1
within five years after his convictions; in fact, it was a mere
six months after DHS notified him that it was pursuing deportation
proceedings due to the convictions. When deciding whether a
defendant has asserted sufficient grounds to relax the time bar,
the PCR court "should consider the extent and cause of delay, the
prejudice to the State, and the importance of the petitioner's
claim in determining whether there has been an 'injustice'
sufficient to relax the time limits." State v. Afanador,
151 N.J.
41, 52 (1997) (quoting State v. Mitchell,
126 N.J. 565, 580
(1992)). Additionally, Rule 3:22-12 provides a petitioner must
allege facts showing that there was excusable neglect in not filing
within the five-year limitations period "and that there is a
reasonable probability that if the defendant's factual assertions
were found to be true[,] enforcement of the time bar would result
in a fundamental injustice." R. 3:22-12(a)(1)(A). Although we
appreciate the difficulty the State may have in re-prosecuting
defendant for charges that arose in 2000 and 2007, on balance,
fairness weighs in defendant's favor as it would be a fundamental
injustice not to allow him to prove at an evidentiary hearing that
he was in fact misadvised of the immigration consequences of his
guilty pleas, the crux of his potential deportation. Indeed, it
is reasonable to conclude the misadvice error, if proven, may have
played a role in his willingness to plead guilty. See State v.
10 A-0713-16T1
Brewster,
429 N.J. Super. 387, 400-01 (App. Div. 2013). Regardless
that defendant may have had the opportunity and the incentive to
learn whether he might be deported before the time of his arrest,
as the State contends, the record here sufficiently establishes
that misadvice serves as excusable neglect. Accordingly,
defendant's PCR petition was timely filed.
II.
We decline to consider defendant's claims that counsel was
ineffective for not assuring defendant gave a factual basis for
the VOP and possession of a weapon for an unlawful purpose guilty
pleas because they were not presented to the PCR court, and do not
go to the court's jurisdiction nor pertains to a matter of public
interest. See State v. Robinson,
200 N.J. 1, 20 (2009).
That said, we still conclude that those convictions should
be vacated because no factual basis was given during the respective
guilty pleas. In seeking PCR, a defendant may challenge the
adequacy of a plea's factual basis provided to the trial court.
State v. Urbina,
221 N.J. 509, 527 (2015). A guilty plea "shall
not [be] accepted[ed]" without the court's determination that
"there is a factual basis for the plea." R. 3:9-2. "Indeed, 'it
is essential to elicit from the defendant a comprehensive factual
basis, addressing each element of a given offense in substantial
detail.'" State v. Perez,
220 N.J. 423, 432 (2015) (quoting State
11 A-0713-16T1
v. Campfield,
213 N.J. 218, 236 (2013)). This requirement helps
"to 'protect a defendant who is in the position of pleading
voluntarily with an understanding of the nature of the charge but
without realizing that his conduct does not actually fall within
the charge.'" State v. Barboza,
115 N.J. 415, 421 (1989) (quoting
Fed. R. Crim. P. 11(f) advisory committee's note to 1966
amendments). "Because a guilty plea is an admission of all the
elements of a formal criminal charge, it cannot be truly voluntary
unless the defendant possesses an understanding of the law in
relation to the facts." State v. Urbina,
221 N.J. 509, 526 (2015)
(quoting McCarthy v. United States,
394 U.S. 459, 466 (1969)).
"[I]f a factual basis has not been given to support a guilty plea,
the analysis ends and the plea must be vacated." State v. Tate,
220 N.J. 393, 404 (2015). Our court "is in the same position as
the trial court in assessing whether the factual admissions during
a plea colloquy satisfy the essential elements of an offense."
Ibid. Thus, where a defendant challenges the factual basis for a
guilty plea, our review is de novo. Id. at 403-04.
A person guilty of third-degree possession of a weapon for
an unlawful purpose "who has in his possession any weapon, except
a firearm, with a purpose to use it unlawfully against the person
or property of another."
N.J.S.A. 2C:39-4(d). To establish a
12 A-0713-16T1
factual basis for the guilty plea for this offense, the following
colloquy occurred:
[DEFENSE COUNSEL:] Mr. Lewin[,] I'm going to
direct your attention to December the 11th of
2006 at about 1:50 in the afternoon. At that
time[,] were you driving a car in the city of
Irvington – or the township of Irvington?
[DEFENDANT:] Yes.
[DEFENSE COUNSEL:] And what kind of car was
that?
[DEFENDANT:] It was a Honda Civic.
[DEFENSE COUNSEL:] And at some –
[DEFENDANT:] White.
[DEFENSE COUNSEL:] I'm sorry?
[DEFENDANT:] A white Honda Civic.
[DEFENSE COUNSEL:] And at some point in time
did you become aware that the Irvington Police
Department wanted you to pull over?
[DEFENDANT:] Yes.
[DEFENSE COUNSEL:] And how -- what did they
do that made you know they were trying to pull
you over?
[DEFENDANT:] They had turned the light on and
come on the loud speaker and told me to pull
the car over.
[DEFENSE COUNSEL:] And did you?
[DEFENDANT:] No.
[DEFENSE COUNSEL:] And in fact you took off
through the streets of Irvington –
13 A-0713-16T1
[DEFENDANT:] Yes.
[DEFENSE COUNSEL:] -- is that fair to say?
[DEFENDANT:] Yes.
[DEFENSE COUNSEL:] And a some point . . . while
you were eluding the police[,] did you strike
another vehicle?
[DEFENDANT:] Yes.
[DEFENSE COUNSEL:] And that was -- another
white car I believe --
[DEFENDANT:] Right.
[DEFENSE COUNSEL:] -- was it not? And at that
point in time then did you jump out of the car
and attempt to run away from the scene?
[DEFENDANT:] Yes.
The trial court – with the State's satisfaction – accepted
defendant's plea allocution. The PCR court agreed; stating
defendant "was in possession of the car at the time [he crashed
it into another car] and, therefore, in possession of a weapon."
We are constrained to disagree. As defendant argues before us,
he failed to specifically state what his purpose was when he drove
his car to elude the police and collided into another car. Hence,
his allocution is missing a key element of the offense: that he
intended to use the car against a person or property as a weapon
when eluded the police. We see no merit to the State's argument
that defendant's use of the car as a weapon can be inferred from
14 A-0713-16T1
defendant's remarks. No such inference can be drawn from
defendant's undetailed admission; other than trying to escape
capture by driving away, there is no insinuation that he used the
car as a weapon to do so. Accordingly, the conviction for
possession of a weapon for an unlawful purpose must be vacated.
Turning to the VOP conviction, our review of the VOP hearing,
bears no indication that defendant pled guilty to the offense nor
any suggestion by counsel that he intended to do so. Since
defendant did not plead guilty, we are instead left with the
conclusion that the VOP court "found" him guilty. However, the
court did not follow the procedural requirements of a VOP hearing,
which our Supreme Court recently reaffirmed in State v. Mosley,
Nos. A-24, 078369 (Mar. 6, 2018) (slip op. at 25-26), stating
At the VOP hearing, a defendant has the
specific rights "to hear and controvert the
evidence against him, to offer evidence in his
defense, and to be represented by counsel."
N.J.S.A. 2C:45-4.
In addition to the statutory procedural
protections conferred by the Code, a
probationer in a VOP proceeding has the
overlay of the protections of due process.
The United States Supreme Court firmly
established those protections in Gagnon v.
Scarpelli,
411 U.S. 778, 781 . . . (1973).
Although the Court noted in Gagnon that the
revocation of probation occurs after
sentencing is completed and is not "part of
the criminal prosecution," it recognized that
the potential for the loss of liberty
represents "a serious deprivation" for the
15 A-0713-16T1
probationer, requiring due process of law.
Id. at 781-82.
As noted, defendant was not afforded the right to present any
evidence in his defense, including his testimony, nor confront the
State's witnesses against him at the VOP hearing. Because he was
not afforded due process, his VOP conviction is vacated.4
Finally, we point out that the Slater analysis engaged in by
the PCR court – determining that the two challenged convictions
should not be vacated because defendant presented no colorable
claim of innocence5 – should not have been applied. As the Court
held in Tate, "when the issue is solely whether an adequate factual
basis supports a guilty plea, a Slater analysis is unnecessary.
220 N.J. at 404. Here, defendant was essentially seeking a
declaration that the pleas never existed due to lack of factual
basis, and that the resulting convictions should be vacated. In
short, a court cannot withdraw what was not perfected.
In sum, we reverse and remand for an evidentiary hearing
consistent with this opinion concerning the immigration
consequences advice that he received. Because the PCR court made
4
We suspect the VOP conviction will play no part in the
deportation proceedings because the record shows that the DHS
relied on the underlying conviction of receiving stolen property,
not the VOP conviction, to support its deportation action.
5
Slater,
198 N.J. at 158.
16 A-0713-16T1
credibility findings regarding defendant's claim that he was
unaware of the immigration consequences, we are constrained to
remand to a different court to conduct the evidentiary hearing.
We also reverse and vacate the convictions for VOP and possession
of a weapon for an unlawful purpose.
Reversed and remanded. We do not retain jurisdiction.
17 A-0713-16T1
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