STATE OF NEW JERSEY v. AMAR S. SHAHZAD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AMAR S. SHAHZAD,

Defendant-Appellant.

________________________________________________________________

August 16, 2013

Submitted August 7, 2013 Decided

Before Judges Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Accusation No. 06-02-0107, Indictment No. 09-07-0706.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Amar S. Shahzad appeals from an October 25, 2011 order denying his petition for post-conviction relief (PCR) and October 20, 2011 denial of his motion to withdraw two guilty pleas after an evidentiary hearing. We affirm.

In 2006 defendant entered a guilty plea to Mercer County Accusation No. 06-02-0107 charging the fourth-degree crime of exhibiting or displaying a fraudulent insurance card. N.J.S.A. 2C:21-2.3(b). Approximately three and one-half years later, he pled guilty to count one of Mercer County Indictment No. 09-07-0706 charging fourth-degree credit card theft, N.J.S.A. 2C:21-6(c)(1). In both cases defendant gave an incriminating statement to the police. He was sentenced to noncustodial probationary terms on both occasions, as called for in the plea agreements.

In March 2011 defendant received notice from the United States Department of Homeland Security that he was "subject to removal from the United States" based on the two convictions. In June 2011 he filed a PCR petition, claiming that he received constitutionally deficient advice concerning the deportation consequences of his guilty pleas. Although our Supreme Court ordered a stay of such PCR petitions on July 26, 2011, it permitted a lifting of the stay "where a defendant face[d] immediate removal . . . ." The motion judge lifted the stay for defendant as he was facing immediate removal.

Defendant and his counsel on the plea and sentencing matters testified. Counsel, who had no expertise in immigration matters, testified that in 2006 defendant "led [him] to believe [that] he was a United States citizen . . . ." Counsel therefore entered "N/A" to question 17 on the guilty 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?" Counsel stated that for the first time in 2009 defendant said he was not a United States citizen. His sentencing hearing was adjourned to give defendant an opportunity to consult with an immigration attorney. Counsel responded "no" when asked if he gave defendant "any legal advice at all regarding immigration[.]"

Defendant testified that he came to this country from Pakistan in 1989 and obtained a five-year student visa.1 He was married to an American citizen and owned two houses and a $1.7 million limousine business with a fleet of twenty vehicles. Defendant testified that his counsel did not review the plea agreement or plea form with him prior to his signing it in 2006. He claimed that he told the lawyer that he was not an American citizen. He stated that counsel told him not to worry about pleading guilty, that he would "file [for] PTI[2] after that" and the guilty plea would not interfere with his ability to become an American citizen. Defendant testified that he was innocent of the charge and would not have pled guilty had he known he would be deported. On cross-examination, defendant said he was not truthful when he laid a factual basis for the guilty plea, did not sign the plea form and lied to the judge when he said he had signed the form.

Defendant also stated that he was innocent of the 2009 charge and would not have pled guilty except that his attorney made him sign the plea form without giving him a chance to read it. On cross-examination, defendant acknowledged that he confessed to the police. He also said that, although the sentencing hearing had been adjourned to give him an opportunity to consult with an immigration attorney, he had not done so.

The PCR judge found defense counsel credible in his representation that defendant had not informed him in 2006 that he was not an American citizen. The judge found defendant's testimony to be "evasive and inconsistent." The judge also found, based on the credible evidence, that defendant was informed that he might face deportation as a result of his 2009 guilty plea and that defense counsel told defendant that counsel did not have sufficient immigration expertise to advise defendant as to the nature of these consequences.

Defendant raises the following issues on appeal:

POINT I: THE ORDER DENYING THE PETITION FOR POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE CREDIBILITY DETERMINATIONS ON WHICH THE DENIAL WAS BASED ARE NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE.

POINT II: THE COURT ERRONEOUSLY DENIED DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEAS.

A defendant claiming that his attorney was ineffective in his representation "must demonstrate first that counsel's performance was deficient, i.e., that 'counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2012) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). The defendant also must demonstrate prejudice. A showing that the error complained of might conceivably have had some effect on the outcome of the trial is not sufficient. Ibid. "'The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 279-80 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; State v. Hess, 207 N.J. 123, 146 (2011); State v. Winder, 200 N.J. 231, 254-55 (2009)). This two-pronged standard has been expressly adopted in New Jersey. Id. at 279 (citing State v. Fritz, 105 N.J. 42, 58 (1987)).

This additional standard also applies in the context of guilty pleas:

[T]he first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, [411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973)], and McMann v. Richardson, [397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)]. The second, or "prejudice," requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.

[Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).]

The standard under State v. Nu ez-Vald z, 200 N.J. 129 (2009), governs in this matter because defendant's guilty pleas were entered before the decision in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and the Padilla standard is not retroactive.3 Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013); State v. Gaitan, 209 N.J. 339, 371-72 (2012).

For petitioners who challenge the entry of a guilty plea prior to Padilla, the Nu ez-Vald z standard explains that the focus should be "on whether counsel provided affirmative misadvice regarding the immigration consequences of a guilty plea." State v. Santos, 210 N.J. 129, 143 (2012) (emphasis added) (citing Gaitan, supra, 209 N.J. at 373-74). Under Nu ez-Vald z, a defendant must demonstrate that his attorney provided false information about the immigration consequences of his guilty plea.

After a testimonial hearing, the PCR judge found that defense counsel did not provide false information about the immigration consequences of either guilty plea. He found counsel more credible than defendant. Because the trial judge was the fact-finder and because he had the opportunity to assess the credibility and demeanor of the witnesses first-hand, we defer to the judge's factual determinations, so long as they are supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Our "[a]ppellate review does not consist of weighing evidence anew and making independent factual findings; rather, our function is to determine whether there is adequate evidence to support the judgment rendered at trial." Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div. 1999). If the trial court's findings meet this benchmark, our "task is complete and [we] should not disturb the result," even if we "might have reached a different conclusion were [we] the trial tribunal." Ibid. (citations and internal quotation marks omitted).

We will not interfere with the findings of a judge sitting without a jury if based upon substantial credible evidence in the record. State v. Locurto, 157 N.J. 463, 470-71 (1999). In matters such as these, "[a] disagreement with how the . . . judge weighed the evidence in a close case is not a sufficient basis for an appellate court to substitute its own factual findings to decide the matter." State v. Elders, 192 N.J. 224, 245 (2007). We therefore defer to the credibility and factual findings of the PCR judge, which are based upon substantial credible evidence in the record.

Defendant also argues that he should have been permitted to withdraw his guilty pleas because the convictions were manifestly unjust, pursuant to State v. Slater, 198 N.J. 145, 156 (2009) and Rule 3:21-1. This argument is without sufficient merit to require a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Defendant admitted during cross-examination that he was unable to locate this student visa, which he claimed was issued in Saudi Arabia.

2 Pretrial intervention. See R. 3:28.

3 Padilla, which does not apply here, requires defense counsel to discuss a clear deportation issue arising from a guilty plea with the defendant, and the advice must be correct. Padilla, supra, 559 U.S. at __, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296.