STATE OF NEW JERSEY v. JUMOL D. WATKINS

NOT FOR PUBLICATION WITHOUT THE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.

JUMOL D. WATKINS, a/k/a

JUMAL WATKINS,

Defendant-Appellant.

____________________________________

May 8, 2014

Submitted April 29, 2014 - Decided

Before Judges Reisner and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment

No. 09-09-1041.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jumol D. Watkins appeals from an October 18, 2011 order denying his petition for post-conviction relief (PCR). In support of his appeal, he raises the following issue, which he did not present to the trial court:

POINT I - THE FAILURE TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCES OF HIS PLEA, IN CONJUNCTION WITH THE CHANGE IN IMMIGRATION LAW ENFORMECMENT ON THE FEDERAL LEVEL, VIOLATED DEFENDANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROESS BECAUSE OF ITS EX POST FACTO EFFECT ON THE PLEA BARGAINING PROCESS (NOT RAISED BELOW).

Finding no merit in that argument, we affirm.

The case arose from an incident on July 21, 2009, when Newark police officers observed defendant conducting what appeared to be a hand-to-hand drug sale. They detained him and found him to be in possession of a bag of marijuana and a BB gun. Defendant was arrested and charged with fourth-degree possession of marijuana, N.J.S.A. 2C:35-10(a); fourth-degree possession with intent to distribute, N.J.S.A. 2C:35-5(b); second-degree possession of a weapon while committing a drug offense, N.J.S.A. 2C:39-4.1; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Defendant had two prior indictable convictions, and was potentially facing more than a decade of prison time if convicted on the charged offenses. Instead, on September 14, 2009, he entered into a plea agreement pursuant to which he would plead guilty to fourth-degree marijuana possession with intent to distribute, and would be sentenced to probation conditioned on serving no more than 364 days in the county jail. The sentence was to be concurrent to any prison term imposed on defendant for violating probation, since he committed the crime while on probation from a previous conviction. In answer to question seventeen of the plea agreement form, "yes" was circled, indicating that defendant was a United States citizen. In response to questions from Judge Michael L. Ravin, defendant indicated that he had discussed the agreement with his attorney and had initialed every page of the plea form. As part of the plea allocution, defendant also told the judge, under oath, that he possessed marijuana with the intent to sell it.

Defendant was sentenced on November 6, 2009. Apparently, neither the trial judge nor defense counsel noted that, contrary to the plea agreement form, the Uniform Defendant Intake section of the pre-sentence report (PSR) stated that defendant was a permanent resident alien from Guyana. Noting that defendant had prior indictable convictions for burglary and drug offenses, and had violated probation twice, Judge Ravin nonetheless sentenced defendant in accordance with the plea agreement. The judge stated that defendant was "lucky" to only receive 364 days in the county jail. The judge also terminated defendant's prior probation without imposing any additional prison term.

In June 2010, defendant filed a PCR petition, claiming that his trial attorney filled out the answers on the plea form without consulting him, thereby not giving him an opportunity to tell her that he was not a United States citizen. He also contended that she failed to advise him about the deportation consequences of his guilty plea. In support of his PCR petition, defendant relied on Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), which obligated defense counsel to affirmatively advise a non-citizen defendant of the potential immigration consequences of a guilty plea. Acting on then-prevailing case law holding that Padilla had full retroactivity, Judge Ravin conducted an evidentiary hearing at which defendant and his former trial attorney testified. At the hearing defendant testified that he was innocent of possession with intent, and his defense counsel filled out the plea form without discussing it with him.

In a written opinion dated October 18, 2011, Judge Ravin found that defendant's testimony was not credible. On the other hand, he believed the testimony of defendant's trial counsel that it was her standard practice to review the plea form with her clients and circle the answers based on the information the clients gave her, and the judge inferred that she followed that practice in this case. Thus, the judge found that the attorney circled "yes" in answer to question seventeen because defendant told her that he was a United States citizen. He also reasoned that there was nothing in defendant's name or background that should have alerted an attorney to his possibly being a non-citizen. Under those circumstances, defense counsel was not obligated to offer defendant immigration advice.

Judge Ravin further found that, if defense counsel overlooked the statement on the PSR about defendant being a permanent resident, it was an innocent mistake and not ineffective assistance. He reasoned that the PSR is typically only given to defense counsel on the day of sentencing and is reviewed with an eye to defendant's criminal history for sentencing purposes. Hence, defense counsel would not be looking for mistakes as to a defendant's citizenship if a defendant had already told the attorney that he was a citizen.

The judge also found that defendant failed to prove prejudice, because it would not have been rational for him to give up a probationary term and risk a prison term of up to twelve and one-half years if convicted, and because the State had a strong case against him. In other words, defendant did not prove that, but for his attorney's alleged ineffectiveness, he would have insisted on going to trial. See State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Further, if defendant had insisted on going to trial, he would probably have been convicted, and would still have faced deportation, in addition to a substantial prison term. Finally, the judge noted that defendant had prior third-degree convictions for burglary and drug possession, either or both of which were also grounds for his deportation.1

On this appeal, we are bound by Judge Ravin's factual findings so long as they are supported by sufficient credible evidence, and we owe special deference to his credibility determinations. See State v. Locurto, 157 N.J. 463, 472 (1999). Having reviewed the record, we find no basis to disturb Judge Ravin's factual findings and, hence, we evaluate defendant's appellate argument in light of those findings.

For the first time on appeal, defendant argues that his Fourteenth Amendment due process rights were violated because of the "ex post facto" effect of federal immigration policy on the plea bargaining process. We infer that defendant is raising this issue because, after Judge Ravin issued his decision, both the United States Supreme Court and the New Jersey Supreme Court held that Padilla was not applicable to collateral proceedings such as this PCR petition. See Chaidez v. United States, ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013); State v. Gaitan, 209 N.J. 339 (2012).

We ordinarily will not consider arguments raised for the first time on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234-35 (1973). However, even if we consider defendant's argument, it is without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). Nonetheless, we add the following comments.

In referring to an alleged "post-plea change in federal immigration law enforcement policy," defendant appears to be arguing that (a) deportation should be viewed as an additional punishment which is added to a sentence, and (b) that the Ex Post Facto clause is violated when the government implements a harsher deportation policy years after a defendant enters a guilty plea. That argument is irrelevant here, because defendant both committed the offense and pled guilty in 2009, long after the federal government began implementing its current deportation policy. See Padilla, supra, 559 U.S. at 361-64, 130 S. Ct. at 1478-81, 176 L. Ed. 2d at 291-93 (tracing the history of federal immigration policy). Further, the Ex Post Facto clause does not apply to deportation decisions, because deportation, while it may be a draconian sanction, is civil in nature. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S. Ct. 3479, 3483, 82 L. Ed. 2d 778, 785 (1984); Alvarado-Fonseca v. Holder, 631 F.3d 385, 391 (7th Cir. 2011); United States v. Koziel, 954 F.2d 831, 834 (2d Cir. 1992).2

Affirmed.

1 At the hearing, the judge praised defendant's PCR counsel for her excellent representation of defendant, regardless of the court's view of the merits of the petition.

2 As the State notes, the record contains no documentation to support defendant's claim that the federal government is seeking to deport him based on the conviction in this case, as opposed to his two prior felony convictions.