STATE OF NEW JERSEY v. KIRK GARVEY

NOT FOR PUBLICATION WITHOUT THE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.

KIRK GARVEY,

Defendant-Appellant.

__________________________________________

September 28, 2015

Submitted September 1, 2015 Decided

Before Judges St. John and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-09-0792.

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Nasheena D. Porter, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Kirk Garvey, appeals from a Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Following our review, in light of the record and applicable law, we affirm.

The record discloses the following facts and procedural history. In September 2007, a Union County grand jury returned an indictment charging defendant with second-degree robbery, N.J.S.A. 2C:15-1. In November 2007, defendant pled guilty to an amended charge of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3. Question seventeen on defendant's plea form: "[d]o you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" was answered "yes" by defendant. During the plea colloquy, the judge asked defendant if he was a citizen of the United States, to which defendant replied "[y]es, sir."

The "Uniform Defendant Intake" form annexed to defendant's presentence report contains contradictory information. The intake form states defendant's place of birth as St. Anne, Jamaica, defendant's alien status as "resident," and citizenship status as "United States."

Defendant appeared for sentencing in February 2008, and was sentenced to a two-year term of probation conditioned upon defendant writing a letter of apology to the victim, as well as restitution and mandatory fines and penalties. The intake form and defendant's citizenship status were never mentioned at sentencing.

In October 2008, defendant appeared before the judge on a violation of probation and was represented by new counsel. During the proceedings, the following colloquy took place

The Court: And are you a citizen of the United States?

Defendant: (indiscernible) where my mother is.

The Court: Say again?

Defendant: Yes, sir. I think I have to file for myself though.

The Court: All right. You may not be a citizen?

Defendant: I may not because of the year that my mother started filing for them, but I'm not sure. I have to get that information from my mom.

Counsel: He was born in Jamaica.

Defendant: Yes.

Counsel: But you believe that your when your mother and you came over here that she did file the appropriate

Defendant: She filed for citizenship. Yes.

Counsel: That might be something that is still pending right now?

Defendant: I'm not sure. Like I said, I have to ask her.

The Court: Do you understand that by pleading guilty to a criminal offense, to a violation of probation, while you are a non-citizen that it might have some effect on your continued residence in this country?

Defendant: No. I didn't know that.

The Court: Yeah. Well, I told you that when you pled guilty in front of me because I would not have

Counsel: And judge, it's listed on the PSI that he was born in Jamaica. Obviously, there was no issue with him getting sentenced that it had any effect on anything. If he's unaware of unaware of it.

The Court: Well, he's telling us now that he's not sure of his citizenship status. And I just want him to understand that by pleading guilty to a criminal offense, that just the guilty plea back from then could have impacted you. Pleading to a violation could might have an impact on you continuing here. Do you understand that? I don't control it. I just want you to know you could be found guilty of this violation of probation and it might that there's something with immigration authorities. But I don't have anything to do with that.

Counsel: Do you understand that?

The Court: Do you understand?

Defendant: Yes, I understand.

The Court: Okay. And you still want to go ahead with this guilty plea?

Defendant: I didn't know that I was pleading guilty to to the charge.

The Court: Yeah. You are.

Counsel: If you're pleading guilty it's not to a new charge.

Defendant: Oh, yes. I'm pleading guilty that I was I did miss the

Counsel: For the violation of probation.

Defendant: For the violation of probation.

Counsel: It's not to a new charge that you're pleading guilty to.

Defendant: Oh.

Counsel: You're pleading guilty admitting these specifications that we went over with respect to what your probation officer said in terms of you failing.

Defendant: Okay.

Defendant pled guilty and sentencing was adjourned for ninety days to give defendant the chance to comply with the terms of probation.

In December 2008, defendant appeared for sentencing on the violation of probation. The judge vacated the prior sentence on the theft charge and sentenced defendant to four years in state prison. His citizenship status was not raised at sentencing.

Petitioner was deported to Jamaica, and filed a PCR petition in 2013. In August 2013, appointed counsel appeared on behalf of defendant for a PCR hearing. Defendant argued he received misleading advice about the immigration consequences of his plea from his attorneys and the court, and he should be allowed to withdraw his plea because the four Slater factors were met.1 In an oral decision, the PCR judge, who was also the plea and sentencing judge for the theft charge, denied defendant's petition and declined to hold an evidentiary hearing. The judge found defendant was not credible and rejected defendant's Padilla argument.2 The judge also held defendant had not satisfied the Slater factors. This appeal followed.

On appeal, defendant presents the following issue for our consideration

POINT I

[DEFENDANT] WAS DEPRIVED THE EFFECTIVE ASSISTANCE OF COUNSEL BY VIRTUE OF COUNSEL'S FAILURE TO INVESTIGATE HIS LEGAL STATUS IN THIS COUNTRY AND FAILING TO ADVISE HIM THAT HE WAS GOING TO BE DEPORTED. THIS LACK OF [ADVICE] RESULTED IN A GUILTY PLEA THAT WAS NOT KNOWING OR VOLUNTARY, ALL OF WHICH WAS IN VIOLATION OF [DEFENDANT'S] RIGHT TO EFFECTIVE COUNSEL.

"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).

In order to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that

(1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); Preciose, [supra,] 129 N.J. [at] 459 (reciting preponderance of the evidence standard of proof); State v. Fritz, 105 N.J. 42, 58 [] (1987) (adopting Strickland standard).

[State v. L.A., 433 N.J. Super. 1, 13, (App. Div. 2013).]

To establish a prima facie case of ineffective assistance of counsel under the first prong of the Strickland test, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires a showing, "that counsel was not functioning as the counsel guaranteed by the Sixth Amendment . . . ." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation and internal quotation marks omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). To do so, a defendant must "identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013). When a guilty plea is contested, counsel's performance is not deficient if "a defendant considering whether or not to plead guilty to an offense receives correct information concerning all of the relevant material consequences that flow from such a plea." State v. Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012).

To meet the second prong of the Strickland test, "[a] 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." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. When a defendant pleads guilty, defendant must establish that there is a reasonable probability he or she would not have pled guilty and insisted on going to trial, but for counsel's deficient performance. Gaitan, supra, 209 N.J. at 351.

Our review of an order granting or denying PCR contains consideration of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We defer to a PCR court's factual findings and will uphold those findings that are "supported by sufficient credible evidence in the record." Nash, supra, 212 N.J. at 540 (citations omitted). However, a PCR court's interpretations of law are provided no deference and are reviewed de novo. Id. at 540-41.

In State v. Nu ez-Vald z, 200 N.J. 129, 143 (2009), the Court held a defendant can show ineffective assistance of counsel by proving "inaccurate information from counsel concerning the deportation consequences of his plea," resulting in his guilty plea. Counsel must avoid "false or misleading information," id. at 138, and is required to inform a defendant entering a guilty plea, regarding the relevant mandatory deportation law if it is "succinct, clear, and explicit[.]" Padilla, supra, 559 U.S. at 368, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295. The Court made clear counsel's "failure to advise a noncitizen client that a guilty plea will lead to mandatory deportation deprives the client of the effective assistance of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J. Super. 329, 331 (App. Div. 2012) (citing Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296).

Here, despite the apparent error on the intake form and defendant's uncertainty with respect to his citizenship status, there is nothing to suggest that counsel's performance was so deficient as to warrant reversal. Defendant stated he understood the deportation consequences of his guilty plea on the plea form, which was signed both by counsel and defendant and was initialed by defendant on each page. Defendant also responded to the judge that he was a United States citizen when he pled guilty to the theft charge, and affirmatively stated counsel advised him of his rights and explained the plea offer.

Defendant agreed to proceed with his guilty plea on the violation of probation even after he was informed of potential immigration consequences on the record, a crucial fact relied on by the judge to find that defendant's petition lacked credibility. Again, we are obliged to defer to a "trial court's credibility findings . . . ." State v. Locurto, 157 N.J. 463, 474 (1999).

The record lacks any facts to support a finding that the performance by either of defendant's trial counsel was deficient, i.e., that counsel failed to offer any advice or that they offered "affirmative misadvice." See Gaitan, supra, 209 N.J. at 356 (citing Padilla, supra, 559 U.S. at 369-370, 130 S. Ct. at 1484, 176 L. Ed. 2d at 296). Defendant's certification in support of his petition offers nothing more than bald assertions without any substantive factual support. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Similarly, the judge did not err in his evaluation of the factors articulated in Slater, supra, 198 N.J. at 157-58, when addressing defendant's request to withdraw his plea.

A guilty plea may not be entered by the trial court without the trial judge first addressing defendant personally and determining by inquiry of defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, with an understanding of the nature of the charges and consequences of the plea. R. 3:9-2; State v. Kovack, 91 N.J. 476, 484 (1982); accord State v. Simon, 161 N.J. 416, 443 (1999); State v. Barboza, 115 N.J. 415, 420-21 (1989); State v. Howard, 110 N.J. 113, 122 (1988); State v. Sainz, 107 N.J. 283, 292-93 (1987). The factual basis for a guilty plea must include defendant's admission of guilt of the crime or the acknowledgment of facts constituting the essential elements of the crime. Sainz, supra, 107 N.J. at 293. "The need to establish a sufficient factual basis for a guilty plea is not obviated by the fact that the plea is part of a negotiated plea agreement." Ibid.

Here, although the plea colloquy was somewhat truncated, it was in compliance with R. 3:9-2 as well as Kovack and its progeny. In addition to the plea form, a factual basis for the plea was established. Defendant clearly expressed an understanding of the consequences of his plea on both the theft charge as well as the violation of probation, including the immigration consequences.

Once a defendant is sentenced, withdrawal of a guilty plea is available only if the defendant's conviction is "manifestly unjust." Slater, supra, 198 N.J. at 156. See also R. 3:21-1. In making such an analysis,

trial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of [the] 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.

[Slater, supra, 198 N.J. at 157-58 (citation omitted).]

Defendant's certification in support of his petition does not allege or support a colorable claim of innocence. Moreover, defendant knowingly accepted the risk of deportation at the time of the plea to the violation of probation and only now seeks to withdraw the plea because the risk became an actuality. Therefore, the nature and strength of defendant's reasons for withdrawal weigh against him. Id. at 159-60.

We further note defendant's conviction on the third-degree theft charge was downgraded from a second-degree robbery charge as the result of a plea agreement substantially favorable to defendant. Id. at 160-161. In sum and substance, defendant has not provided any evidence to satisfy any factors under the Slater analysis.

Finally, we reject defendant's argument the court erred in denying his petition without an evidentiary hearing. "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2015). The mere raising of a claim for PCR does not entitle defendant to an evidentiary hearing. State v. Cummings, supra, 321 N.J. Super. at 170. Because defendant failed to establish a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required.

Affirmed.

1 See State v. Slater, 198 N.J. 145 (2009).

2 See Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010).