STATE OF NEW JERSEY v. PAUL O. ASARE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0496-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL O. ASARE, a/k/a

PAUL ASARE, PAUL OWUSU ASARE,

PAUL OWUSO ASARE, SAMUEL ASARE,

SAMUEL A. ASARE, SAMUEL ADDA ASARE,

FRED ASAFO, FRED OSAFO, DARDAR PAYE,

AND REYMOND WALKER,

Defendant-Appellant.

___________________________________

March 8, 2013 , 2013

Submitted January 16, 2013 - Decided

Before Judges Simonelli and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-01-0040.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven E. Braun, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Paul O. Asare appeals from the February 18, 2011 Law Division order, which denied his petition for post-conviction relief (PCR). We affirm.

Defendant was charged in a fifteen-count indictment with various third- and fourth-degree crimes stemming from his theft and use of stolen credit cards to purchase stereo equipment worth over $500. On April 21, 2005, he pled guilty to third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h, and third-degree receiving stolen property, N.J.S.A. 2C:20-7.

At the plea hearing, defendant testified under oath that he understood the plea agreement; he spoke to defense counsel about the charges; defense counsel explained his rights and responsibilities, read the plea agreement to him, and explained the meaning of each paragraph; he understood what counsel said; he signed the plea form; there were no promises made to him which did not appear on the plea form; he understood he was waiving all of his rights by pleading guilty; and he was abandoning all of his rights because he was guilty.

In addition, defendant testified that all of his answers on the plea form were true. He had answered "Yes" to question 17, which asked whether he understood that if he was not a United States citizen or national he may be deported by virtue of his guilty plea. Defendant then gave a factual basis for his plea, which he does not challenge in this appeal. The judge determined that defendant entered the plea voluntarily. On August 18, 2005, the judge sentenced defendant in accordance with the plea agreement to a three-year probationary term with 270 days in the county jail as a condition of probation. Defendant did not appeal.

Nearly five years after sentencing, on April 27, 2010, defendant filed a pro se PCR petition, contending trial counsel rendered ineffective assistance, and the trial judge erred, by failing to advise him of the immigration consequences of his plea. Defendant also contended that the trial judge erred in failing to properly advise him at the plea hearing of the constitutional rights he was waiving by pleading guilty. The PCR judge denied the petition. This appeal followed.

On appeal, defendant contends that PCR counsel rendered ineffective assistance by failing to argue that the trial judge erred in failing to properly inform him at the plea hearing of the constitutional rights he was waiving by pleading guilty.1 Defendant also contends that trial counsel rendered ineffective assistance, and the trial judge erred, by failing to advise him of the immigration consequences of his plea. These contentions lacks merit.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate that defense counsel's performance was deficient, and defendant was prejudiced thereby. State v. Nash, __ N.J. __, __ (2013) (slip. op. at 24) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987)).

"'[T]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (second alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (internal quotation marks omitted); see also State v. Parker, 212 N.J. 269, 279 (2012).

The PCR petition clearly presented the argument that the trial judge erred by failing to properly inform defendant at the plea hearing of the constitutional rights he was waiving by pleading guilty. Because defendant did not provide his PCR merits brief on appeal, we cannot determine whether PCR counsel argued the issue or incorporated it by reference for the judge's consideration. See State v. Webster, 187 N.J. 254, 257-58 (2006). Whether counsel did so, however, is immaterial to our resolution of this appeal because the issue is barred by defendant's failure to raise it on direct appeal, and he cannot show that any exception applies. State v. Afandor, 151 N.J. 41, 50 (1997); R. 3:22-4. Specifically, it is undisputed that defense counsel explained defendant's rights to him in reviewing the plea form, and the judge confirmed this with defendant on the record at the plea hearing. Defendant testified under oath that he understood those rights and was surrendering them by pleading guilty. Defendant did not file a direct appeal. Thus, under the circumstances, defendant cannot now assert that the procedure employed at the plea hearing denied him due process. See State v. Smith, 43 N.J. 67, 74 (1964). Because the issue was barred and meritless, PCR counsel had no obligation to argue it. Webster, supra, 187 N.J. at 257. Accordingly, defendant has failed to establish that PCR counsel rendered ineffective assistance.

Defendant also failed to show any error by the trial judge or trial counsel with respect the deportation consequences of his guilty plea. The Supreme Court of the United States has held that defense attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea. Padilla v. Kentucky, 559 U.S. 356,___, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). The Court has held that Padilla does not apply retroactively. Chaidez v. United States, ___ U.S. ___, ___, ___ S. Ct. ___, ___, ___ L. Ed.2d ___, ___ (2013). Our Supreme Court has held that Padilla is a new rule to be applied prospectively only. State v. Gaitan, 209 N.J. 339, 371-72 (2012). Here, defendant pled guilty five years before Padilla. Therefore, defendant's "guilty plea is not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Id. at 361 (citation omitted).

A limited exception to this rule arises when defense counsel materially misled the defendant. See Nu ez-Vald z, supra, 200 N.J. at 139-43 (where defense counsel informed the defendant there would be no immigration consequences arising from his plea). That exception is inapplicable here because defendant does not contend that trial counsel informed him there would be no immigration consequences arising from his plea. Defendant contends that trial counsel did not inform him at all that deportation was mandatory. Accordingly, defendant cannot establish that the trial judge committed any error, or that trial counsel rendered ineffective assistance, in failing to inform him of the immigration consequences of his plea. Gaitan, supra, 209 N.J. at 374.

Affirmed.

1 We decline to address defendant's additional contention, raised for the first time on appeal, that the trial judge erred in failing to advise him at sentencing of his right to appeal. Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997).