STATE OF NEW JERSEY v. THELFAS COOPER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1561-08T41561-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THELFAS COOPER,

Defendant-Appellant.

__________________________________________________________

 

Submitted February 23, 2010 - Decided

Before Judges Skillman and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment

No. 04-06-795.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Zavotsky, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On September 17, 2004, defendant pled guilty pursuant to a plea bargain to aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a). On February 4, 2005, the trial court sentenced defendant in accordance with the plea bargain to a twelve-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On October 16, 2007, after hearing argument on a sentencing calendar, see R. 2:9-11, we affirmed the judgment of conviction. State v. Cooper, No. A-3644-05T4.

On November 20, 2007, defendant filed a petition for post-conviction relief based on alleged ineffective assistance of trial counsel. In support of his petition, defendant submitted a certification, dated June 6, 2008, which stated in pertinent part:

2. Up until the time of my sentencing I was represented by Frank Shamy as my defense counsel.

3. I was offered a plea offer of a sentence of 12 years in state prison with 85% to be served without the possibility of parole.

4. At the time that I entered into a plea agreement on September 17, 2004 I was a citizen of Jamaica and resident alien in the United States. I was not a United States citizen. I had informed my counsel, Mr. Shamy, when we first met that I was not a citizen.

5. On the day that I entered into the plea agreement, Mr. Shamy filled out the plea form but never discussed any of the questions on it with me, much less question #17 which I now know asks whether a defendant knows that, if he or she is not a United States citizen, he or she can be deported if they enter a guilty plea.

6. I would not have entered into this plea agreement if I had known that I would be subject to deportation upon the completion of my prison sentence.

7. When I entered Northern State Prison I was placed on immigration detainer by ICE and have been told that I will be deported back to Jamaica when I complete my prison sentence.

Without conducting an evidentiary hearing, the trial court denied defendant's petition by an oral opinion rendered on July 17, 2008. In rejecting defendant's claim that he received ineffective assistance of counsel with respect to his status as a non-citizen and the risk of deportation as a result of a criminal conviction, the court stated:

[D]efendant now complains that he was not told that he was potentially subject to deportation. I don't know whether that's true or not, but it would not surprise me if it was not discussed because the plea form says not applicable and the pre-sentence report reflects that the defendant was a citizen of the United States. Now, apparently that is not accurate but it's surely not something that the Court can take issue with at the time of a plea agreement. And I suspect that many of our citizens would be rather put back if we questioned every one of them about their citizenship. They might think that we're singling people out for those kinds of offensive questions.

So, in this case the defendant was not advised by the Court of the possibility of deportation because the plea form which he says he went over with Mr. Shamy and based upon my questioning of him, I was satisfied that, you know, he was intelligent and competent and able to go over the form with Mr. Shamy and that question was marked as not applicable.

Be that as it may, even if I were to accept the defendant's assertion of what occurred, I think that the law is fairly clear that in respect to a collateral consequence such as deportation, it has been held that there really is no clear duty on the part of a defense attorney to discuss the possibility of, or the likelihood of every collateral consequence. In the area of deportation in particular it's been held that it may warrant reversal of a conviction if it could be demonstrated that defense counsel misrepresented or improperly advised a defendant that he would not be deported. And, of course, we have the case of State v. Garcia, where the defendant was incorrectly advised by his attorney that he would not be deported if he pled guilty, and in that case the Court found that the defendant had made a prima facie showing of ineffective assistance. However, in the cases of State v. Chung, State v. Reed, and State v. Heisman, it has been held that there is no duty or obligation to make specific inquiry as to every possible collateral consequence including residency status.

So, again, I do not believe that in this case the defendant has made a prima facie showing that warrants an evidentiary hearing. Even if Mr. Shamy were to be called to testify and he indicated that he did not warn the defendant about possible deportation proceedings, I don't think it would change the outcome of this proceeding because it appears that the Court and Mr. Shamy were under the impression that he was a citizen and did not face deportation.

We conclude that State v. Garcia, 320 N.J. Super. 332 (App. Div. 1999) requires an evidentiary hearing on defendant's petition. Therefore, we vacate the order denying the petition and remand for a hearing at which defendant and his trial counsel may be called to testify regarding their communications about defendant's citizenship status and risk of deportation and the effect of those communications upon defendant's decision to plead guilty.

In Garcia, as in this case, the defendant's counsel responded "N/A" to question 17 on the standard plea form which asks: "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?" 320 N.J. Super. at 336. Garcia alleged that his trial counsel "inaccurately advised him that he would not be deported if he pled guilty." Id. at 334. On the other hand, Garcia's trial counsel submitted a certification, which stated that he had "very little specific recollection of discussions" with Garcia, but that "it was his practice to ask defendants whether they [were] citizens, [and if a] defendant answers that he or she is not a citizen, [to] circle 'yes' on the plea form." Id. at 336. Garcia's trial counsel further certified that "[a]lthough it is difficult to recall, I am confident based on what I do recall, Mr. Garcia never expressed that he was an illegal Cuban refugee[,]" and that he believed, "[b]ecause 'N/A' was circled on the form, . . . Garcia told him 'that he was a citizen.'" Ibid. Without conducting an evidentiary hearing, the trial court in Garcia found that "the 'N/A' answer to question 17 on the plea form indicated that Garcia 'did not confide his true immigrant status' with his defense attorney[,]" and consequently "there was no misinformation or misadvice given" concerning the effect of that status. Id. at 338.

In vacating the order denying Garcia's petition and remanding for an evidentiary hearing, we stated:

In order to interpret the answer to question 17 the way the PCR judge did, he had to reject Garcia's verified complaint and accept counsel's certification. Thus, stated differently, the PCR judge found on the basis of the papers that Garcia must have lied to his attorney and that, therefore, no misinformation was provided Garcia. But, the form on its face supported Garcia's claim--that his lawyer told him that even though he was an alien, he could not be deported and that, therefore, question 17 was not applicable. Thus, in our view, the PCR judge should not have denied the application without a hearing.

For "a trial court to decide contested issues of material fact on the basis of conflicting affidavits, without considering the demeanor of witnesses, is contrary to fundamental principles of our legal practice."

Therefore, in this case, the PCR judge should have held a hearing to resolve whether misinformation was provided Garcia about deportation and if so whether counsel's conduct "was within the range of competence demanded of attorneys in criminal cases."

Furthermore, the court at the hearing should explore whether "there is reasonable probability that, but for counsel's error, [Garcia] would not have pled guilty and would have insisted on going to trial."

[Id. at 340-41 (citations omitted).]

We reach the same conclusion in this appeal. The trial court should not simply have assumed that defendant's trial counsel was "under the impression that [defendant] was a citizen and did not face deportation[,]" even though defendant's certification alleged that he "informed [his trial counsel] when we first met that I was not a citizen." Instead, the court should have adduced testimony from both defendant and his trial counsel regarding their communications about defendant's citizenship status and the effect of those conversations upon defendant's decision to plead guilty.

 
Accordingly, we vacate the order denying defendant's petition for post-conviction relief and remand the case to the trial court for an evidentiary hearing in conformity with this opinion.

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2

A-1561-08T4

RECORD IMPOUNDED

March 18, 2010