STATE OF NEW JERSEY v. NYAKEH BRIMA

NOT FOR PUBLICATION WITHOUT THE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.

NYAKEH BRIMA,

Defendant-Appellant.

_______________________________

June 19, 2014

Argued January 6, 2014 Decided

Before Judges St. John and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-05-853.

Michael Confusione argued the cause for appellant (Hegge & Confusione, attorneys; Mr. Confusione, of counsel and on the brief).

Brian D. Gillet, Acting Assistant Prosecutor/ Special Deputy Attorney General, argued the cause for respondent (Andrew C. Carey, ActingMiddlesex County Prosecutor, attorney; Matthew Tallia, of counsel and on the brief; Mr. Gillet, on the brief).

PER CURIAM

Defendant Nyakeh Brima appeals from his judgment of conviction. He argues that plea counsel misadvised him about the removal1 consequences of his guilty plea, and that the trial court therefore should have allowed him to withdraw his guilty plea. He also contends that his sentence was excessive because the court improperly assessed the mitigating and aggravating factors. We affirm.

I.

Defendant was born in Sierra Leone, and is a legal permanent resident admitted to the United States based on derivative asylum. According to the pre-sentence report, on the night of November 30, 2010, Rutgers University police officers responded to a report of suspicious activity in a vehicle parked on the Rutgers University campus. The officers observed a parked vehicle, idling, with the headlights off. The officers approached the vehicle and spoke with the driver and defendant, who was in the passenger seat. While speaking with the vehicle's occupants, the officers detected "a strong odor of raw and burnt marijuana." Defendant became "increasingly agitated," and stated "this is bullshit and I'm always getting harassed by the police." Defendant then "bolted from the vehicle" and ran away. The officers pursued defendant.

During the pursuit, the officers observed defendant throw an object. The police apprehended defendant, investigated the area where defendant threw the object, and recovered a loaded Smith & Wesson .357 Magnum handgun. Defendant did not have a permit to carry the handgun, and was charged with second-degree possession of a handgun without having first obtained a permit, N.J.S.A. 2C:39 5(b); third-degree unlawful possession of a weapon in an educational institution, N.J.S.A. 2C:39 5(e); and fourth-degree resisting arrest, N.J.S.A. 2C:29 2(a)(2). At the time of defendant's crime, the second-degree weapons offense subjected him to a mandatory minimum prison term of "between one-third and one-half of the sentence imposed by the court or three years, whichever is greater[,]" N.J.S.A. 2C:43 6(c), and carried a maximum sentence of ten years, N.J.S.A. 2C:43 6(a)(2).

Defense counsel negotiated a plea agreement under which the prosecutor agreed to apply for a waiver under N.J.S.A. 2C:43 6.2, which provides:

[o]n a motion by the prosecutor made to the assignment judge that the imposition of a mandatory minimum term of imprisonment . . . for a defendant who has not previously been convicted of an offense under Chapter 39 of Title 2C of the New Jersey Statutes, does not serve the interests of justice, the assignment judge shall place defendant on probation . . . or reduce to one year the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole.

The prosecutor also agreed that the maximum sentence should not exceed five years and to dismissal of the third- and fourth-degree charges.

On August 19, 2011, defendant pled guilty to second-degree possession of a handgun without a permit. Before the plea hearing, defendant reviewed and signed a plea form. The form's Question 17a asked: "Are you a citizen of the United States?" Defendant circled "Yes," but crossed that answer out and circled "No." Question 17b asked whether defendant understood that "this guilty plea may result in your removal from the United States?" Defendant responded "Yes." Defendant also answered affirmatively to Question 17c and 17d, which asked whether he knew he could seek individualized advice from an attorney about the effect of his guilty plea on his immigration status, and whether he had discussed the potential immigration consequences of his plea with an attorney.

At the plea colloquy, the plea judge asked if defendant understood that his guilty plea "could precipitate an application to have you deported," and if defendant still wished to plead guilty. Defendant responded: "Yeah." The judge then asked if defendant had "any questions regarding [his] immigration status or the immigration consequences such as deportation?" Defendant responded: "Yes, I do . . . . I don't understand what . . . you're asking me, sir." The judge explained that defendant was "subject to deportation," and asked if defendant was "still willing to plead guilty even though . . . the Immigration [and] Naturalization Service could decide to deport you." Defendant responded: "Yes, sir."

The plea judge also asked defendant if he had spoken with an immigration attorney, to which defendant responded: "No." Plea counsel interjected, explaining that she had spoken about immigration issues with defendant after he revealed that day that he was born in Sierra Leone and was admitted into the United States "on an asylum bid," and that "[h]is entire family are United States citizens." Plea counsel stated that she had "explained to [defendant] that this is an aggravated felony" that "would result in the initiation of deportation." However, she also explained that she did not "know what effect the asylum aspect would have on deportation proceedings," or the potential impact of his family's United States citizenship, and that those circumstances posed an issue "for down the road." She told defendant "to expect that deportation proceedings would be initiated." The judge informed defendant that plea counsel "is saying she makes you no promises and no guarantees" about whether those circumstances would weigh in his favor. Defendant replied that he understood, and that he was entering his plea freely and voluntarily.

Three months after pleading guilty, but prior to being sentenced, defendant moved to withdraw his plea, alleging he was misadvised about the removal consequences of pleading guilty. At the March 16, 2012 withdrawal hearing, the motion judge found that the plea "colloquy is perfectly clear," and that defendant "was told aggravated felonies are deportable." The judge then asked what defendant's "claim of innocence" was, to which defense counsel responded: "He didn't do it." The judge noted that "[a] bare assertion of innocence is insufficient to justify withdrawal of the plea." Finding that "[t]he Court and lawyer did everything possible to" explain to defendant the potential removal consequences of pleading guilty to an "aggravated felony," the judge denied defendant's motion to withdraw his plea.

Defendant filed a motion to reconsider the order denying his motion to withdraw his guilty plea, and retained a "seasoned immigration lawyer" to determine the removal consequences of his guilty plea. The immigration lawyer sent a letter to the court explaining that it was unclear whether "the pled-to offense is an aggravated felony." The immigration lawyer stated that if he could not understand the consequences of the guilty plea, then "defendant himself was surely ignorant of the consequences." The immigration lawyer further stated "there is no airtight defense based on an alien having a prior asylum grant," and that "this remains a highly complex question in [defendant's] case" that "requires an evaluation of many factors wholly outside of the criminal process."

At sentencing, the same judge who had denied withdrawal of the guilty plea rejected defendant's motion to reconsider. The judge then sentenced defendant in accordance with the plea agreement to a custodial term of one year of parole ineligibility with a five-year maximum sentence. The judgment of conviction was entered on April 19, 2012.

Defendant appeals, raising the following arguments:

I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA BEFORE SENTENCING BECAUSE DEFENDANT WAS MISADVISED ABOUT THE PLEA'S DEPORTATION CONSEQUENCES.

II. DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.

II.

Defendant claims his plea counsel was ineffective because she "failed to properly advise and fully inform [him] about [the guilty plea's] deportation consequences." We note the "'general policy against entertaining ineffective assistance of counsel claims on direct appeal because such claims [often] involve allegations and evidence that lie outside the trial record.'" State v. Miller, 216 N.J. 40, 70 n.7 (2013) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)), cert. denied, ___ U.S. ___, 134 S. Ct. 1329, 188 L. Ed. 2d 339 (2014). Moreover, such claims usually have not been and "'cannot reasonably be raised in a prior proceeding.'" State v. Murray, 162 N.J. 240, 247 48 (2000) (quoting Preciose, supra, 129 N.J. at 460). However, where the hearing "itself provides an adequately developed record upon which to evaluate defendant's [ineffectiveness] claims, appellate courts may consider the issue on direct appeal." State v. Castagna, 187 N.J. 293, 313 (2006).

Here, defendant did raise his ineffectiveness claim in prior proceedings, namely his motions for withdrawal and reconsideration. Moreover, defendant bases his claim entirely on plea counsel's advice on the record at the plea hearing. Defendant does not claim that plea counsel made any off-the-record statements that differed from what plea counsel stated on the record. "[B]ecause the trial [court] record discloses the facts essential to [defendant's] ineffective assistance claim," we therefore address his claim on direct appeal. See State v. Allah, 170 N.J. 269, 284-85 (2002).

To show ineffective assistance of counsel, defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). "'First, defendant must show that counsel's performance was deficient.'" State v. Taccetta, 200 N.J. 183, 193 (2009). "'Second, defendant must show that the deficient performance prejudiced the defense.'" Ibid.

In the context of a guilty plea, 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, [defendant] would not have pled guilty and would have insisted on going to trial.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (citation omitted) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996).

Plea counsel may be considered ineffective if counsel "provide[d] false or misleading [material] information concerning the deportation consequences of a plea of guilty." State v. Nu ez Vald z, 200 N.J. 129, 141 43 (2009). Moreover, Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010), held that "counsel must inform her client whether his plea carries a risk of deportation." "[W]hen the deportation consequence is truly clear," because "the terms of the relevant immigration statute are succinct, clear, and explicit," such that the removal consequences of a plea can "easily be determined from reading the removal statute," counsel must "give correct advice." Id. at 368-69, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295-96. However, "[i]mmigration law can be complex[.]" Id. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295.

There will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain. The duty of the private practitioner in such cases is more limited. When the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.

[Id. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296.]

Here, plea counsel was not ineffective in advising defendant that he was pleading guilty to an aggravated felony rendering him deportable. See 8 U.S.C.A. 1227(a)(2)(A)(iii). Under 8 U.S.C.A. 1101(a)(43), an "aggravated felony" includes specified violations of Federal law or equivalent violations of State law, including possession of an unregistered firearm. 8 U.S.C.A. 1101(a)(43)(E)(iii); see 26 U.S.C.A. 5861(d); see also United States v. Diaz-Diaz, 327 F.3d 410, 415 (5th Cir. 2003). Because that federal statute would appear to encompass possessing a handgun without a permit under N.J.S.A. 2C:39-5(b), plea counsel's advice appears correct. To the extent the federal statute's application is not clear, as defendant's immigration lawyer suggested, then Padilla does not require plea counsel to give "correct advice," but only to advise defendant that his plea "may carry a risk of adverse immigration consequences." Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296. Plea counsel gave defendant that advice.

Defendant principally contends plea counsel "misadvised" him because she could not predict the removal consequences of his plea. To bolster this claim, defendant notes that even his "seasoned immigration" attorney could not predict the removal consequences of his plea. The record demonstrates that plea counsel met her obligation under Padilla.

Plea counsel is not ineffective for failing to provide a definitive prediction on an unclear question regarding federal immigration law. See State v. Brewster, 429 N.J. Super. 387, 397 (App. Div. 2013). Indeed, a definitive prediction "might have been incorrect at that time," and potentially may have "caused defendant to forego a favorable plea offer and to accept the likelihood of a longer term in state prison by conviction at trial." Ibid. Here, "it was not clear at the time defendant entered his guilty plea whether deportation was presumptively mandatory; thus, counsel's failure to provide clear and definitive advice was not a departure from the standard of attorney competence described in Padilla." State v. Telford, 420 N.J. Super. 465, 471 (App. Div. 2011), certif. denied, 209 N.J. 595 (2012).

Defendant contends that plea counsel incorrectly advised him concerning the effect of "asylum" on his possible removal, citing his immigration lawyer's view that there is no "airtight" asylum defense and that it was "entirely possible" that defendant could still be removed. However, plea counsel never advised defendant that there was an airtight asylum defense. Instead, plea counsel accurately advised that it was unclear what effect defendant's asylum status would have on removal, that he should expect deportation proceedings would be brought, and that the effect of his asylum status would be determined in the course of such proceedings.

Defendant also claims his occasional expressions of confusion at the plea colloquy demonstrates that he did not understand the consequences of his plea. However, when defendant asked for clarification regarding the plea's removal consequences, the judge reiterated that defendant is "subject to deportation" and asked if defendant still wished to plead guilty "even though [he understood] that the Immigration [and] Naturalization Service could decide to deport [him]." Defendant responded: "Yes, sir." The record thus shows defendant was adequately informed of the potential removal consequences of his plea.

As shown above, the advice provided defendant regarding the removal consequences of a guilty plea was sufficient under Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296. In addition, defendant has not alleged or shown that he would not have pled guilty and, instead, would have insisted on going to trial. Because defendant has not shown prejudice or deficient representation, plea counsel was not ineffective.

III.

We turn now to whether defendant should have been permitted to withdraw his guilty plea. "The withdrawal of a guilty plea is not an 'absolute right'; it is a matter within the broad discretion of the trial court." State v. Simon, 161 N.J. 416, 444 (1999). As such, an appellate court reverses a "trial court's denial of defendant's request to withdraw his guilty plea . . . only if there was an abuse of discretion which renders" the trial court's decision "clearly erroneous." Ibid. We must hew to that standard of review.

"Our courts are instructed to apply different standards to a defendant's motion for withdrawal of a guilty plea made before sentence and after sentence." State v. Munroe, 210 N.J. 429, 441 (2012). Because defendant moved before sentencing, the trial court was required to permit him to withdraw his plea "at the time of sentencing" if "the court determine[d] that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel." R. 3:9-3(e).

In State v. Slater, 198 N.J. 145, 157 58 (2009), our Supreme Court held that the following four factors should be considered in determining whether to permit the withdrawal of a guilty plea: "(1) whether defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused."

Defendant makes no arguments with respect to Slater factors one, three, and four. Instead, he argues that he was entitled to withdraw his guilty plea because plea counsel was ineffective. Defendant also argues that that he should be permitted withdraw his guilty plea because he may be deported to the "war torn country" of Sierra Leone.

We find the nature and strength of those reasons for withdrawal inadequate to require the court to allow withdrawal. First, as set forth above, defendant's ineffective assistance of counsel claim lacks merit. Second, as defendant asserts, it is unclear whether he will be deported as a result of his guilty plea. Third, as discussed above, the record demonstrates that both court and counsel made defendant aware that his guilty plea could result in his removal, but he nonetheless chose to plead guilty. Finally, defendant provides no authority for his assertion that potential removal to a war-torn country, by itself, requires the court to grant a motion to withdraw a guilty plea.

Even if defendant had presented sufficient reasons for withdrawal under Slater factor two, the remaining Slater factors militate against permitting him to withdraw his plea. Defendant has not asserted a colorable claim of innocence. Instead, defendant simply asserted that "[h]e didn't do it." As the motion judge correctly noted, however, "[a] bare assertion of innocence is insufficient to justify withdrawal of a plea. Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim." See Id. at 158. "A colorable claim of innocence is one that rests on 'particular, plausible facts' that, if proven in court, would lead a reasonable factfinder to determine the claim is meritorious." Munroe, supra, 210 N.J. at 442. Defendant's bare assertion of innocence is insufficient.

Further, defendant entered into a negotiated plea agreement that dismissed most of the charges and provided defendant with a highly favorable sentence on the remaining charge. Indeed, the sentencing judge noted that defendant had received "the best possible plea bargain that this Court could possibly impose." See Slater, supra, 198 N.J. at 160 ("[D]efendants have a heavier burden in seeking to withdraw pleas entered as part of a plea bargain."). Although it is unlikely that defendant would have obtained an unfair advantage had his motion to withdraw been granted, "[t]he State is not required to show prejudice if a defendant fails to offer proof of other factors in support of the withdrawal of the plea." Id. at 162. Thus, the motion judge did not abuse his discretion by denying defendant's withdrawal motion.

IV.

Defendant contends that the sentence imposed was excessive. "Appellate courts review sentencing determinations in accordance with a deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). The sentence must be affirmed unless:

(1) the sentencing guidelines were violated;

(2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

We find no violation of those requirements here.

"A sentence imposed pursuant to a plea agreement is presumed to be reasonable because a defendant voluntarily '[waived] . . . his right to a trial in return for the reduction or dismissal of certain charges, recommendations as to sentence and the like.'" Id. at 70-71. Nevertheless, defendant argues that his sentence was excessive because there was insufficient evidence to support the sentencing judge's findings of aggravating factors three, six, and nine, and because the judge failed to apply mitigating factors one, two and four. These contentions lack merit.

The judge properly applied aggravating factors three, "[t]he risk that the defendant will commit another offense"; six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"; and nine, "[t]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(3), (6), (9). The judge found "no reason to believe [defendant will] cooperate with Probation," and "no reason to believe [defendant] is unlikely to commit a new offense," based on defendant's criminal record, which includes fourteen arrests, one indictable offense that was downgraded to a disorderly persons conviction, two other disorderly persons convictions, and four municipal ordinance violations. Defendant's criminal record provided a sufficient basis on which to find these aggravating factors applied.

Further, the sentencing judge was not required to find mitigating factors one, "[t]he defendant's conduct neither caused nor threatened serious harm," or two, "[t]he defendant did not contemplate that his conduct would cause or threaten serious harm." N.J.S.A. 2C:44-1(b)(1), (2). It could be "readily perceived" that defendant's admitted unlicensed possession in public of a loaded firearm "constituted conduct which cause[d] and threaten[ed] serious harm." See State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994) ("Distribution of cocaine can be readily perceived to constitute conduct which causes and threatens serious harm").

Nor was the judge required to apply mitigating factor four, that "[t]here were substantial grounds tending to excuse or justify the defendant's conduct." N.J.S.A. 2C:44-1(b)(4). Defendant claimed this factor applied because of defendant's receiving asylum from Sierra Leone. Defense counsel argued at the sentencing hearing that, in Sierra Leone, defendant's exposure "to atrocities that nobody would ever want to see," and "attempts to draft him into a children's military[,] for lack of a better expression, screwed him up." Defendant did not explain why this excused or justified his unlicensed possession of a loaded firearm. It was not an abuse of discretion for the court to decline to apply mitigating factor four based on defendant's unsupported and vague allegations regarding his childhood in Sierra Leone.

Defendant further argues that the sentencing judge, who noted that defendant was about twenty-five-years old, should have considered that as a mitigating factor. He cites State v. Tanksley, 245 N.J. Super. 390, 397 (App. Div. 1991), where we stated that a seventeen-year-old "'defendant's relative youth ordinarily would inure to his benefit in evaluating the choice of extended sentence.'" Ibid. (quoting State v. Dunbar, 108 N.J. 80, 95 (1987)). However, defendant is significantly older, and did not receive an extended sentence.

Moreover, in Dunbar, the Court found that, while a twenty-two-year old defendant's youth could have been accorded "greater weight" by the sentencing judge, "given the totality of circumstances here that the defendant had failed to respond to prior non-custodial efforts at rehabilitation, and that his conduct was escalating in violence the sentencing court's determination . . . does not constitute such a clear error of judgment as to warrant appellate revision." Dunbar, supra, 108 N.J. at 97-98.

Similarly, defendant's criminal conduct was escalating from municipal ordinance violations to drug possession to the present offense involving possession of an unlicensed firearm. Further, defendant's commission of this crime after serving probationary terms illustrates that he was unlikely to respond to non-custodial efforts at rehabilitation. Accordingly, the sentencing judge did not abuse his discretion in not mentioning defendant's relative youth. Ibid.

Affirmed.

1 "'Removal' is the current statutory term for what was known in the past as 'deportation.'" State v. Gaitan, 209 N.J. 339, 345 n.1 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013).