STATE OF NEW JERSEY v. ADDISABETH PRYCE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5641-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ADDISABETH PRYCE,

Defendant-Appellant.

________________________________________________________________

January 26, 2011

Submitted January 10, 2011 - Decided

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 03-12-1594 and 03-11-1492.

Yvonne Smith Segars, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from Judge DeVesa's order of May 29, 2009 denying her petition for post-conviction relief (PCR) and denying her request for an evidentiary hearing. Defendant argues:

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HER AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HER CONTENTION THAT SHE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSELS.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO APPELLANT'S CASE.

C. DEFENDANT'S CONVICTIONS MUST BE VACATED SINCE DEFENSE COUNSEL FAILED TO EXPLAIN ALL OF THE CONSEQUENCES OF HER GUILTY PLEAS.

D. DEFENDANT'S ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO EXPLAIN THE CONSEQUENCES A GUILTY PLEA WOULD HAVE ON HER IMMIGRATION STATUS.

We reject these arguments and affirm.

Defendant's present incarceration results from numerous convictions, for which sentences were imposed on several different dates. However, her PCR petition pertained only to her convictions resulting from guilty pleas on February 20, 2004 under two indictments. Defendant appeared on that date before Judge Cantor and pled guilty to: (1) one of the counts in Indictment No. 03-11-1492, charging her with second-degree distribution of a controlled dangerous substance (cocaine) within 500 feet of a public building on August 22, 2003, N.J.S.A. 2C:35-7.1, and (2) one of the counts in Indictment No. 03-12-1594, charging her with third-degree distribution of a controlled dangerous substance (cocaine) within 1000 feet of school property on July 16, 2003, N.J.S.A. 2C:35-7.1

On that same date, February 20, 2004, defendant also pled guilty to another drug charge in a third indictment. Pursuant to a plea agreement, the State recommended that for all three offenses, defendant would receive an aggregate sentence of seven years imprisonment with a three-year parole disqualifier, to be served concurrently with a violation of probation sentence that was anticipated. At the plea hearing, defendant advised the court, in response to questioning, that she was twenty-one years old, had graduated high school, and was able to read and understand the plea form. Defendant acknowledged that she had ample time to discuss the plea form with her attorney, that she reviewed it with him, and that she signed it. She also acknowledged that her attorney had answered all of her questions and that she was satisfied with his advice. Finally, when the judge asked whether she had an opportunity to talk to any other person of her choosing, such as a family member or friend, before entering a guilty plea, she responded affirmatively.

Question number seventeen on the plea form 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?" The possible answers were "YES," "NO," and "N/A [not applicable]." Defendant initially circled "YES," but then crossed it out and circled "N/A." That had been done out of the presence of the court. When the completed plea form was submitted to the court, "N/A" was circled, and the previous circling of "YES" was shown to have been crossed out. Judge Cantor asked defendant: "Are you a citizen of this country, Miss Pryce?" Defendant answered: "Yes, I am."

The State has furnished us with a copy of defendant's Uniform Defendant Intake Report with respect to Indictment No. 03-12-1594. Although the form reflects Jamaica as defendant's place of birth, "Alien Status" is completed as "N/A," and "Citizenship" is completed as "U.S."

The record also contains the transcript of proceedings on unrelated indictments before Judge Cantor on September 10, 2002, in which defendant entered guilty pleas. In those proceedings, the judge also asked defendant if she was a citizen of this country, to which defendant replied affirmatively.

Finally on this subject, at the time of the PCR hearing, which we will discuss shortly, Judge DeVesa commented that he had reviewed the court file of the proceedings pertaining to the indictments that were the subject of the PCR petition. He said that the presentence report reflected that defendant told the probation officer who interviewed her in connection with preparation of the report "that her father had somehow taken care of her immigration status a long time ago because she had been in the country since she was eight years old." The record on appeal does not contain a copy of the presentence report. However, defendant does not refute the accuracy of the judge's comment.

After defendant pled guilty on February 20, 2004 to the three indictments we have referenced, Judge Cantor sentenced her on those indictments on August 23, 2004. At the outset of the sentencing proceeding, defendant's attorney confirmed that he had reviewed the presentence report with defendant, and, except for some matters which are not relevant to this appeal, there were no additions or corrections. Therefore, in effect, defendant again represented to the court that she was a United States citizen.

The judge imposed sentence in accordance with the recommendation in the plea agreement. On the lead count of the three indictments, defendant was sentenced to seven years imprisonment with a three-year parole disqualifier. She received concurrent five year terms on the other two indictments. In addition, defendant was on probation under two separate indictments. Probation was terminated on each of those indictments and defendant was resentenced on each to four years imprisonment. In accordance with the plea agreement, those sentences were ordered to be served concurrent with each other and concurrent with the sentences imposed on the new charges. Finally, as provided in the plea agreement, all remaining counts of the three indictments under which defendant was sentenced were dismissed, and a fourth indictment was dismissed in its entirety.

We have also been furnished with a transcript of proceedings on September 24, 2004. Represented by a different attorney, defendant pled guilty to charges in two separate indictments, one for a drug offense and the other for bail jumping. She was sentenced during the same proceeding to an aggregate term of six years imprisonment with a three-year parole disqualifier, consecutive to the sentences we have previously described.

On August 8, 2007, defendant filed her PCR petition.2 She claimed that (1) both attorneys who represented her failed to properly investigate the charges against her and prepare an adequate defense, and (2) her attorneys were deficient for failing to advise her of the immigration consequences of her guilty pleas. In particular, she contended she is a Jamaican citizen and not a citizen of the United States, and that deportation proceedings were now pending against her. On appeal, defendant has asserted only the second argument. Therefore, we will not comment on the first argument she had presented in the trial court. Further, although defendant claims deficient conduct regarding her immigration status as to both attorneys, because the PCR petition pertained only to the charges for which the first attorney represented her, we will not comment on the second attorney.

The relevant portions of defendant's verified petition in support of her PCR petition stated:

13. I was born in Jamaica on October 3, 1982. I am not a citizen of the United States.

14. Defense Counsel were both fully aware of my immigration status throughout the period that my cases were pending disposition.

15. Defense counsel never explained to me that a conviction in connection with the charges contained in the Indictments could cause me to have adverse immigration consequences.

. . . .

17. Had I been provided with full and complete information concerning these cases including, without limitation, the adverse immigration consequences that could result from a conviction for any or all of the offenses memorialized in the Indictments, I would not have accepted any plea arrangement.

The matter came before Judge DeVesa on April 24, 2009. After hearing the arguments of counsel, the judge rendered an oral decision. He noted that defendant's attorney negotiated a very favorable plea agreement for her. He commented that the State's proofs in each of the three indictments to which defendant pled guilty on February 20, 2004 appeared to be strong. He further noted that a consecutive sentence for the violation of probation would have been likely, had it not been for the plea agreement. Consecutive sentences might well have also been imposed on the other offenses, which were committed on separate dates.

With respect to immigration status, the judge noted that defendant represented to the court under oath that she was a United States citizen. This representation was repeated when the presentence report was prepared, and again when it was considered at the time of sentencing. The judge found it incredible that defendant would accuse her attorney of failing to advise her regarding the consequences of not being a citizen when it was defendant who represented to the court on more than one occasion that she indeed was a United States citizen. In addition, the judge found lacking a reasonable probability that defendant would have turned down the very favorable plea offer that her attorney negotiated for her. The judge concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel. Accordingly, he declined to conduct an evidentiary hearing and denied her petition.

We are satisfied from our review of the record that Judge DeVesa correctly applied the controlling legal principles, and we find no error in his ultimate conclusion and disposition. We affirm substantially for the reasons he expressed in his April 24, 2009 oral decision. We add the following comments.

A defendant must establish two elements to prove ineffective assistance of counsel. First, he or she must demonstrate that counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Performance is deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid. Second, a defendant must establish that counsel's deficiency prejudiced the defense by demonstrating that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Ibid. New Jersey has adopted the Strickland test. State v. Fritz, 105 N.J. 42, 58 (1987).

Where a defendant argues that the ineffective assistance of counsel led to the entry of a guilty plea, the Strickland standard applies. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 209-10 (1985); State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). In this context, the voluntariness of a represented defendant's guilty plea "depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.'" Hill, supra, 474 U.S. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). The defendant must demonstrate that the attorney's deficient performance prejudicially affected the plea process and must show that "there is a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210; see also Nunez-Valdez, supra, 200 N.J. at 138-39 (requiring, in addition to a showing of deficient conduct, the showing of a reasonable probability that, but for the deficient conduct, the defendant would not have pled guilty and would have insisted on going to trial).

There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. "'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

In her PCR petition, defendant asserted that her attorneys "were both fully aware of [her] immigration status." She did not say how they became aware of that status. She did not state, for example, that she told them so. Her statement lacked personal knowledge, and was therefore not competent evidence that may be included in an affidavit or certification. R. 1:6-6. This unsubstantiated statement was not sufficient to create a factual issue as to one of the elements defendant would have to prove at an evidentiary hearing, namely that her attorney was indeed aware that she was not a United States citizen. The statement was too vague to warrant an evidentiary hearing. State v. Marshall, 148 N.J. 89, 158 (1997). It was nothing more than the kind of "bald assertion" we have found insufficient to warrant an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). This is particularly so in light of defendant's repeated representations to judges and court personnel that she was a United States citizen.

Accordingly, the first prong of the Strickland test was not satisfied. We agree with Judge DeVesa that defendant did not demonstrate, nor make a prima facie showing, that her attorney knew she was not a United States citizen. Therefore, there was no deficiency in counsel's conduct in failing to advise her of any adverse immigration consequences, nor was there a need for an evidentiary hearing. Although it is not necessary for us to reach the second prong, we agree with Judge DeVesa's analysis in that regard as well.

1 The record provided to us does not contain copies of all of the relevant indictments or judgments of conviction, nor does it contain a copy of the presentence report. Our recitation of the events is based upon the documents that have been provided to us together with information discussed on the record in the transcripts that had been furnished to us. Where applicable, we will comment on representations made by counsel in their briefs, which are not documented in the record. We are satisfied that we can fairly dispose of the issue on appeal without the need for the missing documents.

2 In its appellate brief, the State represents that defendant filed a direct appeal, in which her convictions of the offenses that are the subject of her PCR proceeding were affirmed. No confirming documentation was furnished and we have been unable to find a record of such an appeal.

3 Neither party has made any argument regarding retroactivity of the holdings in State v. Nunez-Valdez, 200 N.J. 129 (2009), and Padilla v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). Because of the rationale upon which we have decided this appeal, we need not address the retroactivity issue.