STATE OF NEW JERSEY v. MALIKA OZOEMENAM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6217-03T46217-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MALIKA OZOEMENAM,

Defendant-Appellant.

_________________________________

 

Submitted November 10, 2005 - Decided

Before Judges Wefing and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

No. 97-05-1121.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Sandra K.

Manning, Designated Counsel, of counsel

and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor,

attorney for respondent (James F. Smith,

Assistant County Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief ("PCR"). After reviewing the record in light of his contentions, we reverse and remand for further proceedings.

On April 8, 1999, defendant entered a plea of guilty to video piracy, a crime of the third degree. N.J.S.A. 2C:21-21c(4). On April 19, 1999, defendant was sentenced to two years on probation. Defendant entered his guilty plea after the trial court had denied his motion to suppress. Following sentencing, defendant appealed the denial of that motion, and we affirmed in an unpublished opinion. State v. Ozoemenam, No. A-5848-98 (App. Div. January 9, 2001). Defendant did not seek certification from the New Jersey Supreme Court.

At the time defendant entered his guilty plea, he was a citizen of Nigeria, not a citizen of the United States. In completing the plea form, defendant circled "Yes" in response to the question "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?" Neither defense counsel nor the trial court questioned defendant further on that issue during the colloquy that occurred when defendant entered his plea of guilty. The trial court did inquire whether any promises had been made to defendant to induce him to plead guilty that were not contained on the plea form; defendant responded there were none.

Defendant filed a petition for PCR in 2004, contending he had received ineffective assistance of counsel when he entered his guilty plea. When defendant filed his PCR petition, he was incarcerated in Massachusetts, awaiting deportation to Nigeria. He contended that the attorney who represented him when he pleaded guilty had advised him that he would not be deported if he entered a guilty plea. Defendant noted in his supporting brief that the attorney who had represented him when he pleaded guilty and when he was sentenced was subsequently suspended from the practice of law. Indeed, although the orders directing that suspension were entered in March 1999, the suspension did not go into effect until April 20, 1999, one day after defendant was sentenced. In In re Berson, 157 N.J. 601 (1999); In re Berson, 157 N.J. 634 (1999). The offending conduct was described as gross neglect, lack of diligence and failure to communicate; the attorney was also cited for failure to cooperate with disciplinary authorities. In re Berson, supra, 157 N.J. at 634. After oral argument, the trial court denied defendant's petition, refusing to hold an evidentiary hearing.

We first set forth the governing principles for claims of ineffective assistance of counsel. Every defendant in a criminal case is entitled to the effective assistance of counsel. State v. Sugar, 84 N.J. 1, 17 (1980). To sustain a claim of ineffective assistance of counsel, not only must a defendant overcome a presumption that defense counsel's "conduct falls within the wide range of reasonable professional assistance," Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 694 (1984), but defendant must also prove that counsel's performance was "deficient" and that "the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. New Jersey follows the same principles. State v. Fritz, 105 N.J. 42, 60 (1987).

Having carefully reviewed this record, we have concluded the trial court erred in failing to conduct an evidentiary hearing to explore defendant's allegations. Although we recognize, as did the trial court, that this matter can be distinguished in several aspects from State v. Garcia, 320 N.J. Super. 332 (App. Div. 1999), we consider the principles enunciated in Garcia fully applicable here. The defendant in that case was a permanent resident alien of the United States, having arrived here from Cuba when he was six years old. Id. at 335. In 1994 he pleaded guilty to certain narcotics offenses and received an aggregate sentence of eleven years in prison, with a three-year period of parole ineligibility. Ibid. When he completed the plea form, he circled "N/A" in response to the question "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?" Id. at 336. When the defendant completed his sentence, he was not released because the Immigration and Naturalization Service took him into custody pending deportation proceedings. Id. at 335. Garcia filed a petition for post-conviction relief, alleging that he had pleaded guilty and completed the plea form in the manner in which he did because his attorney advised him he would not be deported as a consequence of the guilty plea. Id. at 334. The trial court denied his petition. Id. at 335. On appeal, we reversed the trial court and remanded for an evidentiary hearing. Id. at 341. We noted that "[a] defense attorney during the plea process can provide inadequate assistance by misinforming his or her client" and we referred approvingly to a decision by an Illinois court that held a defendant had received ineffective assistance of counsel when his attorney had told him that a guilty plea would not result in deportation. Id. at 339.

The trial court in this matter expressed concern about the potential consequences of holding an evidentiary hearing every time a defendant alleged that his attorney had induced him to plead guilty by promising something not contained on the plea form. The trial court mentioned as an example a defendant contending that his attorney had promised him that the court would impose a sentence lower than what, in fact, the defendant had received. We acknowledge the trial court's concerns but do not deem them a basis to deny a hearing to this defendant.

A trial court confronted with a defendant's allegation that his attorney had promised him a lower sentence would be entitled to point to a completed plea form which confirmed that no other promises had been made to him. Further, a routine element of the colloquy during plea proceedings is to assure that no promises have been made to a defendant about what sentence will be imposed unless that agreement is spread upon the record. R. 3:9-3(c). In our judgment, there is a distinction between such an assertion by a defendant and the one presented here; this defendant is not contending that his attorney made a promise that was not disclosed during the plea colloquy but that his attorney affirmatively misinformed him about the consequences of entering the plea agreement.

That is an issue that can only be resolved by way of an evidentiary hearing. The result of that hearing may be that the trial court will reject defendant's assertion in this regard. It may, however, conclude after hearing from defendant and his trial counsel, that incorrect advice was given, which led to defendant's decision to plead guilty.

Finally, we are not persuaded by the contention that defendant cannot satisfy the second prong of the Strickland/Fritz case in light of the strength of the proofs against him. Such proofs do not always guarantee the result.

 
Reversed and remanded for further proceedings. We do not retain jurisdiction.

We note for the sake of completeness that later suspension orders were also entered against that same attorney. In re Berson, 159 N.J. 508 (1999) and In re Berson, 172 N.J. 99 (2002).

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A-6217-03T4

December 2, 2005