STATE OF NEW JERSEY v. ADRIAN JARRETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4044-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ADRIAN JARRETT,

Defendant-Appellant.

_________________________________________

June 16, 2015

Submitted November 3, 2014 Decided

Before Judges St. John and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 93-07-0351 and 95-09-0303.

Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief).

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel; Susan Berkow, Assistant Prosecutor, on the brief).

PER CURIAM
 

Defendant Adrian Jarrett appeals from a Law Division order denying his petition for post-conviction relief (PCR). On appeal, defendant argues

POINT I

THE PCR COURT ERRED BY FINDING THAT THE DEFENDANT'S TRIAL ATTORNEY DID NOT RENDER INEFFECTIVE ASSISTANCE UNDER STRICKLAND BECAUSE DEFENDANT FAILED TO ESTABLISH PREJUDICE UNDER THE SECOND PRONG OF THE STRICKLAND TEST.

POINT II

TRIAL COUNSEL'S MISADVICE TO DEFENDANT CONCERNING THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA RENDERED DEFENDANT'S PLEA INVOLUNTARY AND UNKNOWING UNDER RULE 3:9-2 AND, THEREFORE, DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEAS AND PROCEED TO TRIAL. (Not Raised Below).

Following our review, in light of the record and applicable law, we agree the PCR judge erred in denying defendant's PCR petition.

I.

The record discloses the following facts and procedural history. On July 13, 1993, defendant, a Jamaican citizen and a legal permanent resident of the United States, pleaded guilty to one count of distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5(b)(3). The State agreed to dismiss all remaining charges and recommended a non-custodial probationary term. Defendant was given a three-year probationary sentence.

On June 7, 1995, defendant pleaded guilty to possession of a controlled dangerous substance, with the intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3). Defendant was notified that he had violated the terms of his probation by committing another offense, failing to report to probation on thirteen occasions, failing to pay all fines imposed, and failure to comply with special conditions of probation, namely failure to complete a drug program. Defendant pleaded guilty to all counts of the violation of probation.

On October 30, 1995, defendant's 1993 probation was revoked, and he was sentenced to four years in New Jersey State Prison, concurrent to the four-year sentence imposed on the 1995 offense, with the recommendation that defendant serve his sentence in a Youth Correctional Institute.

In May 2011, the Department of Homeland Security issued a Notice to Appear, advising defendant that he was subject to removal to his home country of Jamaica, citing defendant's convictions from 1993 and 1995. On November 4, 2011, defendant filed a PCR petition, which included an assertion that plea counsel was ineffective because he provided misinformation regarding the immigration consequences of pleading guilty. The PCR judge dismissed the petition with prejudice.

In April 2012, defendant filed a motion to vacate the order of dismissal on the grounds that defendant was entitled to relief under State v. Nu ez-Vald z, 200 N.J. 129 (2009). On August 9, the judge reinstated defendant's petition for PCR and ordered an evidentiary hearing.

On August 31, the judge presided over an evidentiary hearing. Defendant testified on his own behalf, stating that when he reviewed the plea forms from both 1993 and 1995 with his trial attorney, and they reached question seventeen: "[d]o you understand if you are not a United States citizen or a National, you may be deported by virtue by the plea of guilty?" his attorney told him that the question was not applicable and circled "N/A" on each form. However, both presentence reports noted defendant's birthplace was Jamaica and indicated his citizenship as "other." Defendant further testified his attorney never told him in either matter he could be deported if he pleaded guilty.

Defendant's trial attorney also testified, but could not recall whether he had advised defendant about deportation. Although he did not find that misadvice was given by counsel, the PCR judge found that the first prong of the test in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) was satisfied because counsel twice circled "N/A" as to question seventeen on the plea forms, despite both the 1993 and 1995 presentence reports indicating that defendant was a Jamaican citizen. However, the judge denied defendant's petition because he determined that defendant did not establish prejudice under the second prong of Strickland.

Defendant was removed to Jamaica on April 25, 2013. On April 29, this appeal ensued.

II.

PCR "'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, [supra,] 466 U.S. [at] 687, 694; 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).]

New Jersey has adopted this two-prong test. Fritz, supra, 129 N.J. at 459.

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, as in the present matter, 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 defendant pleads guilty, a 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 courts 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 courts interpretations of law are provided no deference and are reviewed de novo. Id. at 540-41.

III.

InNu ez-Vald z, supra, 200 N.J.at 143, 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 v. Kentucky, 559 U.S. 356, 368, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 295 (2010). 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).

In Chaidez v. United States, U.S. , 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), the United States Supreme Court held Padillaimposed a new obligation and announced a new rule of law. Accordingly, its holding would be applied prospectively and"[u]nder Teague[ v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075, 103 L. Ed. 2d 334, 356 (1989)], defendants whose convictions became final prior to Padilla, therefore cannot benefit from its holding." Chaidez, supra, U.S.at , 133 S. Ct.at 1113, 185 L. Ed. 2d at 162.

The record supports that trial counsel did not adequately review all questions on the plea agreements with defendant. Most important, question seventeen, directed to noncitizen-defendants, was marked not applicable on both the 1993 and 1995 plea forms. Although defendant's counsel did not recall the details of defendant's matters, he testified that generally he circled the answers on the plea forms and would have the defendant sign the form upon completion. By dismissing the applicability of question seventeen's inquiry regarding deportation, counsel advised defendant deportation was "inapplicable" to his circumstances. It is that determination that constitutes affirmative misadvice under the Nu ez-Vald zstandard.

These facts are distinguishable from cases where counsel did not discuss the deportation consequences attached to a guilty plea, but in fact put a defendant on notice of the problem by properly circling "Yes" to question seventeen. Gaitan, supra, 209 N.J.at 347. Here, by circling "N/A," which is false and affirmatively misleading, counsel misdirected plaintiff. Nu ez-Vald z, supra, 200 N.J.at 131.

Furthermore, prior to sentencing, counsel had a duty to read the entire presentencing report which states defendant's place of birth as Jamaica. Assumedly, this vital review by counsel was not done in 1993 and 1995, furthering the erroneous response to question seventeen. SeeState v. Garcia, 320 N.J. Super.332, 340 (App. Div. 1999) (stating "the "N/A" answer to question seventeen supported [the defendant's] position," such that "a prima facie case of misinformation had been established").

In this matter, the PCR judge found

[B]y virtue of [defendant's attorney] either not having read the Pre-Sentence Report or not having alerted it with the [c]ourt, or the [c]ourt not having looked at it and understood that ["]not applicable["] was not appropriate . . . . [t]hat constitutes a clear misunderstanding of the obligations of an attorney.

We concur with the PCR judge's conclusion, and determine counsel's failure to render advice with respect to the deportation consequences of a guilty plea, and the act of indicating that the question regarding immigration concerns were "not applicable" to defendant constituted affirmative misadvice, satisfying the first prong of the Strickland test. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Strickland'ssecond prong requires a defendant to "show that the deficient performance prejudiced the defense." State v. Taccetta, 200 N.J.183, 193 (2009) (citation and internal quotation marks omitted). Under the second prong, prejudice is not presumed and must be proven by the defendant. Fritz, supra, 105 N.J.at 52. The defendant must show that, "had he been properly advised, it would have been rational for him to decline the plea offer and insist on going to trial and, in fact, that he probably would have done so[.]" State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (citation omitted). "[A] petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, supra, 559 U.S.at 372, 130 S. Ct.at 1485, 176 L. Ed. 2d at 297. This "is an exacting standard: [t]he error committed must be so serious as to undermine the court's confidence in . . . the result reached." State v. Allegro, 193 N.J.352, 367 (2008) (alteration in original) (citations and internal quotation marks omitted).

Defendant testified had he known he would be deported, he would have challenged the charges and pursued possible suppression motions. The judge stated, "if there was a viable Motion to Suppress available to him, that would have been an issue . . . to have pursued with his attorney. There is no evidence of that. . . ." However, defendant need not prove his motions to suppress, regarding his 1993 interrogation and the 1995 warrantless cavity search, would have been granted. Only "[w]hen a defendant's ineffective assistance of counsel claim is based on a failure to file a suppression motion," must defendant "establish that the suppression motion has merit." State v. Ball, 381 N.J. Super. 545, 554 (App. Div. 2005) (citing State v. Fisher, 156 N.J.494, 501 (1998)).

The judge disagreed with defendant's contention that he would have chosen to go to trial had he known of the immigration consequences, stating, "Mr. Jarrett was concerned about the sentence he would be exposed to in the event that he went to trial and was convicted. . . . He was not concerned with the probability or the possibility of deportation." (emphasis added). The judge posits this finding as evidence that defendant was not prejudiced by counsel's deficient performance. However, the determination that defendant was not concerned about deportation was not supported by sufficient credible evidence in the record. His counsel's misadvice led him to believe immigration consequences were "not applicable" to him.

Beyond defendant's testimony, his background provides support for his contention that he would have gone to trial. Defendant came to the United States with his family at eleven years of age. At the time of the offenses, his presentence reports indicated that he resided with his parents and three siblings in the United States. To say that, simply because defendant was concerned with penal consequences, he would prefer the risk of deportation from his family to a country where he had not lived since he was a child is ignoring the realities of defendant's circumstance.

Accordingly, because the judge's factual finding that defendant was not concerned about his immigration status is not supported by the record, the determination the second prong of the Strickland/Fritztest was not satisfied is also unsupported.

IV.

Finally, although it was not addressed in the PCR judge's decision, the State maintains defendant's PCR petition is time barred.

Rule 3:22-12(a)(1) imposes a five-year limitations period within which PCR petitions must be filed. The five-year period begins when the judgment of conviction is entered and is "generally neither stayed nor tolled by an appellate or other proceeding." State v. Murray, 162 N.J. 240, 249 (2000) (citations omitted). The rule waives the time limitation if "facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1).

Rule 3:22-12(a) "encourage[s] defendants reasonably believing they have grounds for post-conviction relief to bring their claims swiftly and discourage[] them from sitting on their rights until it is simply too late for a court to render justice." State v. Cummings, 321 N.J. Super. 154, 165 (App. Div.) (citing State v. Mitchell, 126 N.J. 565, 576 (1992)), certif. denied, 162 N.J. 199 (1999).

When determining whether facts show "excusable neglect," a defendant must demonstrate "more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Factors to be considered when determining whether there exists a sufficient basis for relaxing the five-year constraint include "the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." State v. Afanador, 151 N.J. 41, 52 (1997). "Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." State v. Milne, 178 N.J. 486, 492 (2004) (citation and internal quotation marks omitted). Sufficient compelling circumstances exist here.

We reject the State's reliance on this court's holding in State v. Brewster, 429 N.J. Super. 387 (2013) as barring PCR relief. In Brewster, the defendant, seeking to avoid deportation, filed for PCR twelve years after his conviction. Id. at 390. At the time of his plea, the defendant was aware of the possible immigration consequences of a conviction and answered "Yes" to question seventeen. Id. at 391. Three years before he filed his PCR petition, the defendant consulted an immigration attorney, who advised the conviction "could be a problem." Id. at 399-400.

Under these facts, this court declined to relax the time-bar imposed by Rule 3:22-12, explaining

Defendant cannot assert excusable neglect simply because he received inaccurate deportation advice from his defense counsel. If excusable neglect for late filing of a petition is equated with incorrect or incomplete advice, long-convicted defendants might routinely claim they did not learn about the deficiencies in counsel's advice on a variety of topics until after the five-year limitation period had run.

[Id. at 399-400 (citations omitted).]

Defendant's case is clearly distinguishable from Brewster. Unlike the defendant in Brewster, defendant here was not informed he was subject to deportation as reflected by the incorrect "N/A" response to question seventeen of the plea agreement. Further, defendant reacted within six months of learning of the misadvice and being notified of his immigration detainer.

On balance, the possible prejudice to the State caused by the passage of time does not outweigh the prejudice to defendant. We find the delay was inherently excusable, warranting review of defendant's PCR claims, stemming from the 1993 and 1995 guilty pleas.

Accordingly, we vacate the order denying defendant's petition for post-conviction relief and remand the case to the trial court for an evidentiary hearing to determine if defendant can "convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, supra, 559 U.S. at 372, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297.

We note that in his Point II before us, defendant also refers to State v. Slater, 198 N.J. 145 (2009), for the proposition that defendant should be allowed to withdraw his pleas. We recognize that a motion to withdraw a plea under Rule 3:21-1, and a PCR petition based on ineffective assistance of counsel, are governed by different standards. See State v. O'Donnell, 435 N.J. Super. 351, 369 (2014). However, we shall not address the merits of a plea withdrawal motion, as defendant did not present it to the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Reversed and remanded for a new evidentiary hearing.