STATE OF NEW JERSEY v. ALWYN FORDE

NOT FOR PUBLICATION WITHOUT THE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.

ALWYN FORDE,

Defendant-Appellant.

_____________________________________

September 3, 2014

Argued July 30, 2014 Decided

Before Judges Waugh and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-01-063.

Paul Condon argued the cause for appellant (Law Office of Paul Condon, attorneys; Mr. Condon, on the brief).

Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Alwyn Forde appeals the Law Division's June 26, 2013 order denying his petition for post-conviction relief (PCR). We reverse and remand for further proceedings.

I.

We discern the following facts and procedural history from the record on appeal.

In December 2011, Forde was arrested in Essex County and charged with third-degree possession of a controlled dangerous substance (CDS) with intent to distribute within 1000 feet of school property, contrary to N.J.S.A. 2C:35-7 (count one); fourth-degree possession of CDS, contrary to N.J.S.A. 2C:35-10(a)(3) (count two); and third-degree possession of CDS with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) (count three).

On January 23, 2012, Forde accepted a plea offer that required him to plead guilty to count one of the accusation that charged him with possession of CDS in a school zone with intent to distribute. In exchange, the State agreed to recommend a non-custodial sentence and to dismiss the remaining charges.

Forde signed a plea form acknowledging that he was not a citizen of the United States and that he was eligible for deportation based on the plea. The form further acknowledged that he was aware of his right to seek legal advice with respect to the issue of deportation, but that he did not wish to do so. For reasons not clear from the record, the plea judge failed to question Forde about the immigration consequences of the plea during the plea hearing. Forde gave a factual basis for the plea, which the judge accepted.

At sentencing on March 6, defense counsel raised the issue of Forde's immigration status. She informed the judge that she had advised Forde that he had pled guilty to a deportable offense, that she gave him the contact information for an immigration attorney, that Forde had spoken to the attorney about it, and that Forde wished to proceed with sentencing. Forde acknowledged to the judge that he was aware that the offense to which he had pled could be considered a deportable offense, but was asked no other questions concerning the immigration consequences of the plea. The judge then sentenced Forde to probation for two years, with conditions, fines, and monetary penalties not relevant to this appeal. Forde did not file a direct appeal.

On September 11, Forde filed his PCR petition. He alleged ineffective assistance of counsel, including failure to advise him concerning the immigration consequences of the plea, failure to meet with him to discuss his case, supply him with discovery, and investigate defenses. Forde alleged that he was innocent and had not wanted to plead guilty. At the time the petition was filed, Forde was being held by Department of Homeland Security pending deportation proceedings.

The plea judge held an evidentiary hearing with respect to the petition on June 18, 2013. Forde testified that he had minimal contact with his defense attorney, whom he asserted did not thoroughly investigate the case and did not discuss the immigration consequences of the plea with him. Although he conceded that he had signed the plea form, Forde maintained that his defense attorney had filled it in without talking to him and that he had signed it without reading it. He further testified that defense counsel told him not to say anything to the sentencing judge.

Forde's defense attorney, Danica Rue, also testified at the hearing. She testified that Forde had never called her to schedule an appointment at her office and that they first met at the plea hearing. At that time, she supplied Forde with the discovery she had received and reviewed the police report with him. She maintained that Forde told her he wished to plead guilty.

According to Rue, she had the initial date of the plea hearing adjourned and gave Forde contact information for an immigration attorney so he could contact the attorney prior to the plea. She also testified that she spoke to the same attorney herself, and informed Forde that he would be deportable once he pled guilty. In his testimony, Forde denied that any such referral took place and asserted that he had not contacted an immigration attorney until after he was taken into custody by Homeland Security.

The judge entered an order dismissing the petition on June 26, 2013. He issued a written opinion on July 3, in which he briefly explained his reasons for denying relief. This appeal followed.

II.

Forde raises the following arguments on appeal:

POINT I: THE TRIAL COURT'S DECISION UPHOLDING THE GUILTY PLEA OF ALWYN FORDE SHOULD BE REVERSED DUE TO COUNSEL'S INEFFECTIVE ASSISTANCE OF COUNSEL

A. The Trial Court Erred in Finding that Counsel was Effective to Advise Regarding Immigration Consequences after the Plea

B. The Trial Court Erred by Not Addressing That Counsel was Ineffective By Not investigating/ Negotiating Defendant's Case.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). Under Rule 3:22-2(a), a criminal defendant is entitled to PCR relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694) (internal quotation marks omitted). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

To justify withdrawing a guilty plea premised on ineffective assistance of counsel, a defendant must satisfy a modified Strickland standard:

When a guilty plea is part of the equation, . . . "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) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (internal quotation marks and brackets omitted).]

Moreover, to obtain relief under the second Strickland prong, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).

In Padilla, the United States Supreme Court held that an attorney's failure to advise a non-citizen client of the immigration risks attendant on pleading guilty was ineffective assistance of counsel. Id. at 374, 130 S. Ct. at 1486, 176 L. Ed. 2d at 299. In State v. Gaitan, 209 N.J. 339, 372 (2012) cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013), our Supreme Court held that Padilla was not entitled to retroactive application. Accord Chaidez v. United States, 568 U.S. ___, ___, 133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149, 162 (2013). However, the 2010 holding in Padilla mandating affirmative advice by counsel on immigration consequences of a plea was applicable to this case, in which the plea was entered in 2012.

The immigration ramifications of the plea were not specifically addressed on the record during the plea hearing. The testimony at the plenary hearing raised several stark factual disputes concerning the extent to which Rue counseled Forde concerning that issue at or prior to the plea hearing.

Forde testified that Rue never discussed the issue with him before or after the plea or prior to sentencing. He denied reading the plea form before he signed it. Forde further testified that Rue never referred him to an immigration attorney and that he never consulted one at all until after he was seized by Homeland Security. At sentencing, after Rue told the judge about the consultation with the immigration attorney, the judge asked Forde if he was aware that the offense to which he pled "could be considered a deportable offense" and Forde responded: "Yes, I am." However, he maintains that he did not dispute Rue's statement to the judge because she told him "[d]on't say anything to the judge."

In his written opinion, the judge found as follows:

In this case, the defendant alleges that counsel was ineffective for failing to advise him of the immigration consequences of his plea. However, as stated above in the factual history, the defendant decided to continue with the plea even after his defense attorney and the court advised him that he was pleading guilty to a deportable offense. Additionally, on the day the plea was originally scheduled, defendant's trial counsel requested an[] adjournment so that she could give the defendant contact information for an immigration attorney. The judge granted the adjournment and the plea was taken at a later date. None of trial counsel's advice to the defendant rose to the level of false or affirmatively misleading advice.

The judge's opinion does not clearly resolve the conflicts and inconsistences in the testimony. Rue testified that she had the plea hearing adjourned so that Forde could speak with the immigration attorney and that she spoke to the attorney herself. That assertion is inconsistent with her statement at sentencing that she had gone over the immigration issue with Forde "at length in between, after his plea as well as before sentencing, that this is a deportable offense." (Emphasis added.) Although Rue mentioned the referral to the immigration attorney at sentencing, it was in the context of her statement to the judge that she advised him about the immigration consequences of the plea between the plea and sentencing. Rue's testimony was also inconsistent with the answer to Questions 17a and b in the plea form, which she testified she had prepared at the time of the guilty plea. Those answers assert that Forde had not consulted an attorney and did not wish to do so. Finally, there is nothing in the plea transcript to suggest that an earlier date had been adjourned for the specific purpose of addressing the immigration issue, which issue was not even mentioned during the plea colloquy, as would have been expected in light of such an adjournment.1

We are constrained to remand for further findings of fact because the judge failed to address the inconsistencies we have outlined above. In his opinion, he stated that the initial plea date was adjourned by the judge, but does not identify how he knows that, unless he was speaking of himself in the third person. The judge's reliance on Forde's brief acknowledgment at sentencing that he was aware that it was a deportable offense is difficult for us to evaluate without knowing whether Forde was actually given advice and counseled by an immigration attorney prior to the plea or sentencing hearings, or whether he had not been so counseled but was just agreeing because he thought that was what was expected of him.

In addition, the judge failed to address Forde's argument that Rue did not advise him with respect to defenses, including N.J.S.A. 2C:35-7(e). That statute establishes an affirmative defense for possession in a private residence with no minors present and no distribution for profit. We see nothing in Forde's factual basis that would undercut such an affirmative defense. The judge also failed to address Forde's testimony that he went along with Rue's advice and gave an untruthful factual basis for the plea and did not disagree with her representations concerning immigration issues to preserve what he had been told was a favorable plea.

With respect to the second Strickland prong, the judge's findings are somewhat conclusory and, to some extent, reliant on his findings on the first prong and his failure to address the issue of the affirmative defense under N.J.S.A. 2C:35-7(e). A fuller exploration and explanation as to those issues is required for appropriate judicial review.

For these reasons, we vacate the order denying PCR relief and remand to the Law Division for further consideration, including more detailed findings of fact and credibility determinations and, if necessary, additional testimony. In doing so, we express no view as to the ultimate outcome, we merely outline the issues to be addressed. We do not retain jurisdiction.

Vacated and remanded.

1 PCR counsel, however, stated in his summation that the sentencing had been adjourned, but he did not specifically say why.