STATE OF NEW JERSEY v. ANTHONY EGU

NOT FOR PUBLICATION WITHOUT THE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.

ANTHONY EGU,

Defendant-Appellant.

_________________________________

February 12, 2016

Submitted January 20, 2016 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-04-0843.

Joseph E. Krakora, Public Defender, attorney for appellant (Charles P. Savoth, III, Designated Counsel, on the brief).

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

PER CURIAM

Defendant appeals from a September 23, 2013 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

After being indicted for second-degree eluding, N.J.S.A. 2C:29-2b, third-degree resisting arrest, N.J.S.A. 2C:29-2, and fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a), defendant pled guilty on August 19, 2005, to fourth-degree aggravated assault and third-degree eluding. At his plea hearing, defendant, who is Nigerian and speaks Ibu as his first language, was assisted by a certified court interpreter in French, a similar language. During the hearing, defendant was asked whether he understood that as a non-citizen he could be deported as a result of entering the guilty plea. Defendant confirmed that he had spoken with an immigration attorney who had informed him of the possibility that immigration authorities could initiate deportation proceedings for his entry of a guilty plea. Defendant was sentenced to a three-year term of probation. He did not file a direct appeal.

On August 26, 2011, defendant filed a pro se petition for PCR, asserting that his attorney did not tell him that a conviction would affect his immigration status. In March 2013, defendant submitted a certification in support of his petition, stating that he had difficulty understanding English and claiming that his immigration attorney had told him that a criminal conviction would not affect his immigration status. He also asserted that at the plea hearing his defense attorney told him that he had arranged a favorable plea which would keep defendant out of jail, as long as he agreed with the questions he and the judge asked. Defendant's certification states he was misled by his immigration attorney and had he known the immigration consequences of a guilty plea, he would have gone to trial. Defendant also submitted a certification from his brother-in-law, stating that defense counsel had not discussed any immigration issues with defendant at the time of his plea hearing.

On September 23, 2013, the court held a PCR hearing. During the PCR hearing, an Ibu interpreter was present, but during the proceedings it became apparent that the Ibu interpreter was not beneficial to the orderly proceedings of the court. Defendant's counsel acknowledged that defendant spoke some English but, because English was a second language, he did not necessarily understand everything. The probation officer who had prepared defendant's pre-sentence report, and, who spoke Ibu and English, testified that he had conducted a pre-sentence interview with defendant entirely in English. After hearing testimony from the probation officer the PCR judge found that defendant did, in fact, understand English. The judge then addressed defendant's argument that he had been denied effective assistance of counsel because his defense attorney did not confirm that defendant was given accurate advice from his immigration lawyer. The judge rejected his argument and denied his petition.

On appeal, defendant argues

I. THE PCR COURT ERRED IN NOT FINDING DEFENSE COUNSEL'S FAILURE TO SUFFICIENTLY INVESTIGATE WHETHER IMMIGRATION DEFENSE COUNSEL'S REPRESENTATIONS TO DEFENDANT PRIOR TO THE PLEA HEARING WERE MISLEADING AND INACCURATE.

II. THE PCR COURT ERRED IN DENYING AN EVIDENTIARY HEARING IN CONSIDERING DEFENDANT'S POST CONVICTION RELIEF PETITION.

We initially observe that the PCR judge's findings are well-grounded in the evidence adduced at the hearing, as a result they are entitled to our deference. State v. Locurto, 157 N.J. 463, 470-71 (1999). While a review of a claim ineffective assistance of counsel involves matters of fact, it ultimately requires a determination of law, and "[a] trial court's interpretations of the law and the legal consequences that flow from established facts are not entitled to any special deference." State v. Harris, 181 N.J. 391, 419 (2004) (quoting Manalapan Realty v. Tp. Committee, 140 N.J. 366, 378 (1995)).

To set aside a plea agreement due to ineffectiveness of counsel, defendant must demonstrate, by a preponderance of the credible evidence, that plea counsel's representation was deficient when weighed against an objective standard of attorney competence, and that this deficiency prejudiced the defense to the extent 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. Gaitan, 209 N.J. 339, 351 (2012) (quoting State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996)), cert. denied, 133 S. Ct. 1454 (2013)).

When defense 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 accurate information, an ineffective assistance counsel claim has been established. Nunez-Valdez, supra, 200 N.J. 129 (2009). Here, defendant claims that plea counsel was ineffective in failing to investigate the advice defendant received from his immigration counsel. A defense attorney does not have an affirmative duty to ensure the accuracy of any information a defendant receives from a third-party immigration attorney. Plea counsel was obligated to inform defendant, per the plea form, that he may be deported as a result of the plea, and defendant acknowledged that he was so advised. Gaitan, supra, 209 N.J. at 351; Nunez-Valdez, supra, 200 N.J. at 131. Defendant discussed the consequences of his plea with his immigration counsel, and stated at the plea hearing that he understood that he may be subject to deportation proceedings as a result of his guilty plea. Giving appropriate deference to the PCR court's factual findings, defendant fails to demonstrate that plea counsel's performance was deficient and, accordingly, the trial court did not err in denying his PCR petition on those grounds.

Nor did the judge err in concluding that defendant was not entitled to a plenary hearing. A court reviewing PCR petitions based on claims of ineffective assistance of counsel should grant an evidentiary hearing only if a defendant establishes a prima facie showing in support of the relief requested. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10(e).

The State argues that defendant's PCR claims are time-barred by Rule 3:22-12(a). The record does not indicate that this issue was addressed at the PCR hearing, and we decline to address it here. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirm.