STATE OF NEW JERSEY v. LEIGHTON BROWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5283-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEIGHTON BROWN,

Defendant-Appellant.

_____________________________________________________

Submitted May 8, 2012 Decided May 21, 2012

Before Judges Fisher, Baxter and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-11-0893.

Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. O'Reilly, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

In this appeal from the denial of post-conviction relief (PCR), defendant argues he was denied the effective assistance of counsel because his trial attorney did not adequately advise him of the deportation consequences of his guilty plea. Because defense counsel was under no duty in 2006 to provide such advice, we reject defendant's arguments and affirm.

On January 31, 2006, defendant, a noncitizen, entered a guilty plea to, among other things, possession of marijuana with the intent to distribute, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-5(b)(12), which constituted, for immigration purposes, an aggravated felony subjecting defendant to mandatory removal from this country, see 8 U.S.C.A. 1101(a)(43)(B); 8 U.S.C.A. 1227(a)(2)(A)(iii). Defendant was sentenced to a three-year prison term, subject to a fourteen-month period of parole ineligibility.

Defendant was later detained by federal immigration officials for removal to Jamaica. On November 12, 2007, defendant filed a pro se motion for relief from the judgment of conviction, asserting that his trial attorney failed to properly advise him about the deportation consequences of his guilty plea. Specifically, defendant alleged that his attorney advised "he had negotiated" a plea that "was in [defendant's] best interest." Defendant also alleged that his attorney told him that defendant could "contact him subsequently to file an [a]ppeal if [he found himself] subjected to [i]mmigration [d]eportation [p]roceedings." Defendant claims he would not have entered into the guilty plea if aware that deportation would follow.

The PCR judge denied relief1 and defendant appealed, presenting the following arguments for our consideration:

I. DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT HIS PLEA REGARDING THE MANDATORY DEPOR[T]ATION CONSEQUENCE OF ENTERING A PLEA OF GUILTY (Partially Raised Below).

A. Defendant was not properly advised regarding the deportation consequence of entering a guilty plea (Raised Below).

B. Plea counsel failed to procure an appeal on behalf of defendant (Not Raised Below).

II. DEFENDANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF PCR COUNSEL (Not Raised Below).

We reject these arguments and affirm.

The current state of the law applicable to defendant's appeal is this. Had defendant asserted that his attorney gave him incorrect legal advice regarding the deportation consequences of his guilty plea, defendant would have presented a viable ground for post-conviction relief. See State v.Gaitan, 209 N.J. 339, 352 (2012); Statev. Nu ez-Vald z, 200 N.J. 129, 140-42 (2009). It is not sufficient, however, for a defendant, who entered a guilty plea to a deportable offense prior to March 31, 2010 -- the date Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), was decided -- to argue that his attorney gave no advice about the deportation consequences or only advised that deportation might occur. Although Padilla, supra, 559 U.S. at __, 130 S. Ct. at 1486, 176 L. Ed. 2d at 299, held that an attorney's failure to give correct affirmative advice about the deportation consequences of a guilty plea deprives the client of the effective assistance of counsel guaranteed by the Sixth Amendment, our Supreme Court has held that Padilla created a new rule with only prospective application, Gaitan, supra, 209 N.J. at 372.2

We conclude that defendant's argument fits only the rule announced in Padilla and is, therefore, unavailing because defendant pleaded guilty prior to the date Padilla was announced.

In so holding, we recognize that defendant's allegations are not entirely clear. What is indisputable, however, is the fact that defendant executed a plea form in which he answered "yes" to Question #17, thereby representing that he was aware that he "may be deported by virtue of [his] guilty plea." In other words, in answering this question, defendant represented he was not a citizen and that he understood deportation was a possibility. It is also undisputed that, at the plea hearing, defendant acknowledged reviewing the entire plea form with his attorney, that he signed it, that he understood it, and that all his answers were true. Defendant, however, testified at the plea hearing that he was a citizen of the United States, thus raising questions about the accuracy of his answer to Question #17. Notwithstanding these contradictory representations, no further inquiry was made or pursued by the judge or defense counsel. And, later, in the portion of defendant's PCR petition quoted earlier, defendant asserted that deportation was discussed. Defendant, however, has not revealed the details of that discussion. Despite the contradictions and lack of detail in defendant s allegations, we may assume for purposes of this appeal that it was well understood by defense counsel that defendant was not a citizen.

Accepting as true defendant's factual allegations, we would assume there was some discussion about deportation; in addition, the plea form itself conveys the possibility of deportation. Gaitan holds that, prior to Padilla, defense counsel had no greater obligation and would be ineffective in this setting only if counsel gave incorrect advice. 209 N.J. at 352. Defendant, however, has not alleged that his attorney told him something that was legally incorrect.

In the final analysis, we affirm because, to obtain an evidentiary hearing or to eventually obtain post-conviction relief, defendant was required to present a prima facie case of ineffective assistance of counsel. Gaitan, supra, 209 N.J. at 350; Statev. Echols, 199 N.J. 344, 357 (2009); State v. Goodwin, 173 N.J. 583, 593 (2002). Even when viewed indulgently, defendant's vague assertions do not contain an allegation that his attorney gave incorrect advice regarding the deportation consequences of his guilty plea. As a result, Gaitan compels a denial of post-conviction relief.

1Defendant has already been removed from this country.

2We note that, on April 30, 2012, the Supreme Court of the United States granted certiorari to review Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011) and determine whether Padilla should be applied retroactively. Previously, in granting certification in Gaitan, our Supreme Court stayed all cases pending in this court and the trial courts in which the issue was raised. State v. Santos, __ N.J. __, __ (2012) (dissenting op. at 2). With its decision in Gaitan, the Court vacated its stay and later denied Gaitan's motion for a stay pending disposition of his petition for certiorari to the Supreme Court of the United States. Now that certiorari has been granted to review Chaidez, there is a potential for the abrogation of Gaitan, but our Supreme Court has not reinstated its earlier global stay of all cases such as this. See Santos, supra, __ N.J. at __ (dissenting op. at 2-3). As a result, we proceed with our decision in this case, basing it on the principles announced in Gaitan, to which we are bound. See State v. Barros, __ N.J. Super. __ (App. Div. 2012).