STATE OF NEW JERSEY v. SHAKUR YOUNG

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE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.

SHAKUR YOUNG,

Defendant-Appellant.

____________________________________

December 11, 2015

 

Submitted September 28, 2015 Decided

Before Judges Lihotz and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment Nos. 07-01-0013 and 07-03-0500.

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

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shakur Young appeals a Law Division decision denying his petition for post-conviction relief (PCR), which included a request for an evidentiary hearing.1 In his PCR petition, defendant claimed his plea counsel misadvised him about the deportation consequences of his guilty plea to an indictment and an accusation. Having considered the record and controlling law, we conclude defendant was entitled to a hearing on his petition. Accordingly, we reverse and remand.

In November 2011, defendant negotiated a plea with the State and pled guilty to a Somerset County Indictment, No. 07-01-0013, and a Somerset County Accusation, No. 07-11-0766. The indictment charged him with thirteen counts of third-degree burglary, N.J.S.A.2C:18-2; one count of third-degree attempted burglary, N.J.S.A.2C:5-1 and N.J.S.A.2C:18-2; eleven counts of third-degree theft, N.J.S.A.2C:20-3(a); and one count of fourth-degree theft, N.J.S.A.2C:20-3(a). The accusation charged him with third-degree burglary, N.J.S.A.2C:18-2; third-degree theft, N.J.S.A.2C:20-3a; and third-degree attempted burglary, N.J.S.A.2C:5-1 and N.J.S.A.2C:18-2. Three months earlier, in August 2011, defendant had negotiated a plea and pled guilty to three third-degree burglary counts in a Bergen County Indictment, No. 07-03-0500, charging him not only with the burglary counts but also with three counts of third-degree theft, N.J.S.A.2C:20-3(a).2

The two indictments and accusation were consolidated for sentencing. On March 7, 2008, the court sentenced defendant in accordance with the plea agreements: as to the Somerset County Indictment, to five-year custodial terms with two years of parole ineligibility on the twenty-five third-degree offenses and to an eighteen-month custodial term on the fourth-degree theft offense; as to the Somerset County Accusation, to five-year custodial terms with two years of parole ineligibly on each of the three third-degree offenses; and as to the Bergen County indictment, to a five-year custodial term with two years of parole ineligibility on each of the three third-degree offenses to which defendant pled guilty. The court dismissed the remaining counts. The custodial terms were all to be served concurrently. Defendant did not file a direct appeal.

More than two years later, in September 2010, defendant was released from New Jersey State prison and taken into custody by New York authorities to begin serving a New York State sentence. While in custody in New York, the Bureau of Immigration and Customs Enforcement issued a charging document and detainer. Based on defendant's convictions, the Bureau ordered he be deported. Defendant appealed from the deportation order to the Board of Immigration Appeals, which affirmed the deportation order.3 Thereafter, defendant filed his PCR petitions.4

Defendant filed a PCR petition in Somerset County on December 14, 2011, and later filed a similar petition in Bergen County. The petitions were consolidated in Somerset County, counsel was appointed to represent defendant, and defendant supplemented his PCR petition.

In his PCR petitions, defendant averred, among other things

5. Prior to the entry of the guilty plea I was not advised by my attorney of any potential consequences of my guilty plea or the convictions which followed therefrom. My attorney never asked me about my citizenship or immigration status as a Legal Permanent Resident (LPR).

6. I did not do anything to conceal my LPR status from my attorney. The fact is that my attorney never asked about my status. Had I been asked I would have told my attorney that I had LPR status.

7. My attorney reviewed the plea form with me while I was in the holding cell outside the court room. The plea form was completed by me with the assistance of my attorney. Question #17 stated "Do you understand that if you are not a United States Citizen or national, you may be deported by virtue of your plea of guilty?". [My attorney] specifically told me that deportation was "not applicable" to my case. Based upon that statement by my attorney I marked "[N/A]" for question #17. I never told him I was born in Costa Rica because I did not understand that I was facing deportation as a result of my plea.

Defendant also averred that had he understood the deportation consequences of his plea, he would have rejected the plea offer "and taken the case to trial despite what the State may say about the strength of the evidence against me in this case." Defendant explained: "[my] wife, three American born daughters and two step sons by marriage reside in the United States. I have been the primary provider for my family members, all of whom are U.S. citizens or lawful residents."

The plea form defendant signed when he entered his pleas in Somerset County corroborate his assertion, namely, that he circled "[N/A]" in response to question number seventeen concerning his understanding of his plea's deportation consequences. As previously noted, defendant has not included in the appellate record either the plea form he signed before pleading guilty in Bergen County or the transcript of that plea.

On November 7, 2013, the court denied defendant's petition without an evidentiary hearing, concluding that defendant failed to make a prima facie showing of ineffective assistance of counsel. The court determined counsel was unaware defendant was not a U.S. citizen and had no duty to conduct an independent investigation. The court also determined defendant could not establish prejudice from counsel's omission, because in view of "the State's abundant evidence . . ., it is unlikely [a trial] would have resulted in anything other than [defendant's] conviction and deportation."

On appeal, defendant raises two issues

POINT I

the order denying post-conviction relief should be reversed and the matter remanded for an evidentiary hearing because defendant made a primafacieshowing of ineffective assistance of trial counsel under R.3:22 post-conviction relief standards.

POINT II

the PCR court's rulings violated defendant's right to effective assistance of counsel as guaranteed by the sixth amendment to the United States Constitution.

To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment;" and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987). To set aside a guilty plea based on ineffective assistance of counsel, a defendant must establish under Strickland's second prong "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. DiFrisco, 137 N.J. 434, 457 (1994) quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985).

"A defendant [is] entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of post-conviction relief, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief."

[R. 3:22-10(b)].

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland test. See State v. Preciose, 129 N.J. 451, 463 (1992). "As in a summary judgment motion, the motion judge should review the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). If a defendant has presented a prima facie claim and the facts supporting the claim are outside of the trial record, the trial court should ordinarily grant an evidentiary hearing to resolve the claim. Ibid.

Here, defendant established a prima facie case that his plea counsel was ineffective. In State v. Nu ez-Vald z, 200 N.J. 129, 131 (2009), our Supreme Court "held that when counsel provides false or affirmatively misleading advice about the deportation consequences of a guilty plea, and the defendant demonstrates that he would not have pled guilty if he had been provided with accurate information, an ineffective assistance of counsel claim has been established." State v. Gaitan, 209 N.J. 339, 351 (2012).5 In the case before us, in his PCR petition, defendant averred his plea counsel "specifically told me that deportation was 'not applicable' to my case." Defendant further averred he would not have pled guilty had he been informed of the deportation consequences of his plea. When reviewed in the light most favorable to defendant, Cummings, supra, 321 N.J. Super. at 170, these averments establish both that defense counsel provided false or affirmatively misleading advice about the deportation consequences of defendant's guilty plea, and defendant would not have pled guilty if he had been provided with accurate information, thus establishing a prima facie case of ineffective assistance. Nu ez-Vald z, supra, 200 N.J. at 131.

The State contends "the record reveals that defendant did not receive any affirmative misadvice from the attorney who represented him at the time he entered his guilty pleas." This contention overlooks defendant's averment, "specifically [counsel] told me that deportation was 'not applicable' to my case."

The State also contends, as the trial court determined, counsel had no duty to conduct an independent investigation to discover whether defendant risked deportation if he pled guilty. This argument also overlooks defense counsel's alleged affirmative advice both false and misleading that deportation did not apply to defendant. It matters not whether such false advice was made out of ignorance. The reason the misadvice was given alters neither its false content nor defendant's reliance upon it. Further, we fail to comprehend the State's argument concerning defense counsel conducting an investigation; counsel could have simply asked his client about his citizenship.

The State also argues defendant would not have rejected the plea even had he known of its deportation consequences, because of "the relatively lenient sentence he was afforded." Implicit in the argument is a credibility determination running counter to a trial court's obligation to review the evidence in the light most favorable to defendant in evaluating a prima facie case.

Similarly, the trial court based its decision on the premise that the outcome defendant's conviction and deportation would have ultimately been the same at a trial given the State's strong evidence. The issue before the trial court was whether there was "a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial," DiFrisco, supra, 137 N.J. at 457, not what the outcome of a trial might have been.

We are somewhat concerned about defendant's plea to the Bergen County indictment. The parties have not provided the plea form and transcript, so we have no assurance defendant's immigration status was not addressed in the Bergen County proceedings. Nonetheless, defendant's Bergen County PCR petition was consolidated with his Somerset County PCR petition and the State has not asserted defendant's immigration status was discussed during defendant's plea to the Bergen County indictment. The issue can be further explored during the evidentiary hearing on remand.

Reversed and remanded. We do not retain jurisdiction.


1 The judge who denied defendant's petition issued a written decision. The parties have not included an implementing order in the appellate record. In a footnote in his brief defendant states: "It appears that the PCR [c]ourt did not sign a separate [o]rder denying post-conviction relief."

2 The parties have not included in the appellate record either a transcript of defendant's plea to the Bergen County Indictment or the plea forms defendant signed before entering that plea.

3 The parties have included none of the deportation pleadings and hearing transcripts in the appellate record. The facts concerning defendant's deportation are recounted in defendant's PCR petition.

4 Defendant titled the petition, "Petition for of Error Coram Nobis Pursuant to 28 U.S.C.[A]. 1651."

5 Following our Supreme Court's decision in Nu ez-Vald z, the United States Supreme Court held that counsel have an affirmative duty to inform defendants of the risk of deportation arising from a guilty pleas. Padilla v. Kentucky, 559 U.S. 356, 373-74, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 298 (2010). Padilla is not retroactive. Gaitan, supra, 209 N.J. at 370-371.


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