STATE OF NEW JERSEY v. AHMAD HUSEIN

NOT FOR PUBLICATION WITHOUT THE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.

AHMAD HUSEIN,

Defendant-Appellant.

________________________________

December 28, 2015

Submitted December 2, 2015 Decided

Before Judges Sabatino and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-10-1066.

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

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Jennifer J. Ljungberg, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals the trial court's denial of his petition for post-conviction relief ("PCR"). His fundamental claim is that he received ineffective assistance of his counsel in 2008 when he pled guilty to shoplifting, contending that counsel failed to give him proper advice concerning the deportation consequences of his guilty plea. We agree with the trial court that defendant's contentions have no merit, and affirm the dismissal of his petition.

In September 2008 defendant was observed by security personnel at a Target retail store cutting open three packages containing DVD players and then concealing the unpaid items in a bag. The shoplifting was recorded on the store's video surveillance cameras. Police who were called to the store arrested defendant and found him in possession of the stolen items. He also lied to the police about his identity.

Defendant was charged by the State in an accusation with two offenses, namely shoplifting, N.J.S.A. 2C:20-11, and hindering apprehension, N.J.S.A. 2C:29-3(b)(4). Through the efforts of his counsel, a plea agreement was negotiated with the State in which it agreed to recommend a non-custodial sentence of probation and to dismiss the hindering apprehension charge if defendant agreed to plead guilty to the shoplifting offense.

Defendant appeared with his counsel at the plea hearing on October 22, 2008, and attested to his understanding of and consent to the terms of the plea agreement. During the course of his colloquy with the court, defendant, who is a native of Jordan, acknowledged that he was an immigrant with a green card. Defendant further acknowledged that he had reviewed the terms of the plea with his attorney through an interpreter, that she answered all of his questions, and that he had nothing to ask the court or counsel before the plea was entered.

In February 2009, the trial court imposed a two-year probationary sentence on defendant, consistent with the plea agreement. Defendant did not appeal his conviction or sentence.

Federal immigration authorities subsequently proceeded with steps to deport defendant from the United States. Defendant then filed his PCR petition with the trial court, claiming in a certification that his plea counsel had "advised [him] that [he] would have no problem with immigration if [he] successfully completed probation and paid all of [his] fines." He seeks to vacate his shoplifting conviction and guilty plea in an effort to prevent his deportation.

After considering the circumstances and the applicable law, Judge Sheila A. Venable, who was also the judge who presided over defendant's plea hearing and sentencing, found no merit to his claims and dismissed his PCR petition.

Now on appeal, defendant argues

POINT I

THE ORDER SUMMARILY DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL UNDER SIXTH AMENDMENT CONSTITUTIONAL STANDARDS THAT EXISTED AT THE TIME OF HIS GUILTY PLEA.

POINT II

THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

Having duly considered these contentions, we affirm the dismissal of defendant's PCR petition, substantially for the sound reasons detailed in Judge Venable's ten-page written opinion dated April 15, 2014. We provide some short additional comments of our own.

The Sixth Amendment of the United States Constitution guarantees a person accused of crimes the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test of Strickland by demonstrating that: (1) his counsel's performance was deficient, and (2) the deficient performance actually prejudiced his defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). When reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.

These principles have been extended to the plea negotiation setting. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant claiming that he received ineffective representation by his plea counsel must show with "reasonable probability" that the result would have been different had he received proper advice. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07.

Applying these standards to ineffectiveness claims arising when the government seeks to deport a defendant after his conviction, the United States Supreme Court held in 2010 that criminal 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, 367, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). However, because defendant in this case entered his guilty plea and was sentenced before 2010, the standards of Padilla do not apply retroactively to his case. Chaidez v. United States, 568 U.S. , , 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013). Instead, a less stringent duty applies under pre-Padilla case law, which looks to whether plea counsel affirmatively gave the defendant incorrect advice about deportation consequences. SeeState v. Nu ez-Vald z, 200 N.J. 129, 139-43 (2009) (applying this less stringent standard in pre-Padilla New Jersey PCR cases).

We agree with Judge Venable that defendant has not made a sufficient showing to warrant relief, or, for that matter, an evidentiary hearing on his petition. His claim of misadvice from his plea counsel is unsubstantiated beyond his bald assertion. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (noting that PCR relief requires more than "bald assertions" by a defendant), certif. denied, 162 N.J. 199 (1999); see also R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013) (endorsing this principle from Cummings). In fact, as Judge Venable recognized, defendant's claims that he was oblivious to the risks of deportation when he pled guilty are belied by question seventeen on the plea form, which specifically alerted him that if he was not an American citizen, he could be deported by virtue of his guilty plea.

Even if, as he now alleges, his plea counsel mistakenly told him that he would not be deported if he merely completed the terms of his probation, defendant has not demonstrated a "reasonable probability" that he would have rejected the plea offer and have gone to trial. Defendant was caught shoplifting red-handed. His efforts to take the merchandise were documented on film. He lied to the police about his identity. Defendant received a favorable plea agreement under the circumstances presented, particularly a probationary sentence and the dismissal of the separate hindering apprehension charge.

It strains credulity to believe that, in retrospect, defendant would have risked his fate at a trial if he had been more certain of his exposure to future deportation. A far more realistic view is that had defendant gone to trial, he would have been found guilty of shoplifting and perhaps the second charge as well. Consequently, he would have been no better off than he is today.

Affirmed.