STATE OF NEW JERSEY v. RICHARD KEITH SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3591-08T43591-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD KEITH SMITH,

Defendant-Appellant.

__________________________________________

 

Submitted March 24, 2010 - Decided

Before Judges Sabatino and Newman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 00-06-1150.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kisha M. Hebbon, Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Lynne Seborowski, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Richard K. Smith appeals from an order denying his petition for post-conviction relief (PCR). We affirm.

By way of background, defendant pled guilty to third-degree possession of cocaine on February 12, 1991. On April 17, 1991, the court sentenced him to a three-year probationary term. Following a jury trial, defendant was found guilty of third-degree possession of cocaine and acquitted of possession of a controlled dangerous substance with intent to distribute and possession of a controlled dangerous substance with intent to distribute within 1000 feet of school property on October 6, 1998. The court sentenced defendant to a five-year term of probation on December 19, 1998.

Lastly, on June 3, 2001, defendant pled guilty to fourth-degree unlawful possession of a weapon (a knife) and was sentenced to a four-year term of probation on September 12, 2001. Six and one-half years later on March 10, 2008, defendant filed a petition for PCR, claiming ineffective assistance of counsel because he alleged that he was not informed that his guilty plea could result in his deportation.

In rejecting his contention, Judge Kevin Callahan found that there was no excusable neglect in not filing his PCR petition within five years of his sentence as set forth in Rule 3:22-12(a) and, therefore, his petition was time-barred. Notwithstanding, Judge Callahan considered the merits of the petition, and noted that insofar as the petition related to the offense for which a jury found him guilty of cocaine possession, there was no ineffectiveness because no plea agreement was involved.

With regard to his plea to fourth-degree unlawful possession of a weapon, defendant was asked by the court during the plea colloquy if he was a citizen of the United States and answered under oath, "Yes, sir." Not until he filed his PCR petition did defendant inform the court he was born in Trinidad and has lived in the United States since he was one year old. The court determined that defendant should "not be rewarded for his deception." Judge Callahan found that there was no showing of any errors by counsel which would have led defendant to proceed to trial rather than plead guilty.

On appeal, defendant raises the following issues for our consideration.

POINT I

THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WAS TIME-BARRED.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

We reject defendant's arguments and affirm substantially for the reasons expressed by Judge Callahan in his written opinion of October 24, 2008. However, because of the subsequent Supreme Court decision in State v. Nu ez-Valdez, 200 N.J. 129 (2009), we add these additional comments.

We, like Judge Callahan, see no need for an evidentiary hearing because there was no prima facie showing made that a hearing need be held. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Indeed, there was no factual dispute that might entitle defendant to an evidentiary hearing. State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

In Nu ez-Valez, the trial court made a factual finding that defendant had credibly testified at his PCR hearing that he had been misled by his trial attorney that there would be no deportation consequences flowing from his guilty plea. Despite trial counsel's contrary testimony, the Court held in Nu ez-Valdez that, as a matter of state constitutional law and not federal constitutional law, defendant was entitled to vacate his guilty plea because he would not have pled guilty if he had received correct information. Nu ez-Valdez, supra, 200 N.J. at 131.

Here, defendant, under oath, affirmatively responded during the taking of his plea that he was a citizen of the United States. His false answer vitiates any claim of ineffective assistance of counsel because counsel would have the right to rely on his client's sworn statement to the judge that defendant was, in fact, a United States citizen. If defendant is subject to deportation, he has only himself to blame and cannot lay it at the feet of his attorney.

 
The order denying the PCR petition is affirmed.

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A-3591-08T4

April 8, 2010