STATE OF NEW JERSEY v. D.K.

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0460-17T4

STATE OF NEW JERSEY,

        Plaintiff-Appellant,

v.

D.K.,

     Defendant-Respondent.
_________________________________

              Submitted March 20, 2018 - Decided April 12, 2018

              Before Judges Yannotti and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              12-04-0724.

              Esther Suarez, Hudson County Prosecutor,
              attorney for appellant (Erin M. Campbell,
              Assistant Prosecutor, on the brief).

              Joseph E. Krakora, Public Defender, attorney
              for respondent (Stefan Van Jura, Deputy Public
              Defender, of counsel and on the brief).

PER CURIAM

        The State, on leave granted, appeals from a September 22,

2017 order, which granted defendant's petition for post-conviction
relief (PCR) for ineffective assistance of counsel and vacated

defendant's plea.       We reverse.

     The following facts are taken from the record.          On April 11,

2012, a Hudson County grand jury indicted defendant on one count

of second-degree endangering the welfare of a child, 
N.J.S.A.

2C:24-4(a), and one count of fourth-degree child abuse, 
N.J.S.A.

9:6-1 and 9:6-3.        As defendant's trial date approached, defense

counsel filed a motion to be relieved as counsel citing a breakdown

in communications with defendant.            In December 2012, defendant

failed to appear in court.         Therefore, the trial judge issued a

bench warrant and bail forfeiture order.           Defendant was arrested

a few days later and charged with bail jumping, 
N.J.S.A. 2C:29-7.

     On January 14, 2013, a hearing occurred to address defense

counsel's motion to be relieved.            The trial judge advised she

could   not   relieve    counsel   from    representing   defendant     until

defendant retained new counsel.           The trial judge rescheduled the

matter for another hearing two weeks later and advised defendant

to retain new counsel by then. When the matter returned on January

28, 2013, defendant had not retained a new attorney, and her

defense counsel advised the judge defendant wanted to apply for a

public defender.        The assistant prosecutor placed the State's

final offer on the record, namely, defendant would plead guilty

to the second-degree endangering the welfare of a child charge,

                                      2                               A-0460-17T4
which would be treated as a third-degree offense for sentencing

purposes, the State would recommend a three-year prison sentence,

and would not pursue the child abuse or bail jumping charges.

     Defendant stated she wished to accept the State's offer and

plead guilty.   However, the trial judge granted defendant a recess

to consider her decision and consult with defense counsel. Defense

counsel advised the judge defendant was a Tibetan residing in the

United States as an asylee.   Defense counsel noted defendant "said

she spoke to an immigration attorney and she may not be deported."

Defense counsel also stated he was reviewing the plea form with

defendant and said defendant "indicated a couple of times that she

wanted to speak to an immigration attorney."   When the trial judge

asked defendant if she had consulted with an immigration attorney,

defendant informed the judge a friend had consulted one on her

behalf, but that defendant herself had not spoken with an attorney

about the immigration consequences of her plea.    Thus, the trial

judge adjourned the matter to enable defendant to consult with an

immigration attorney.

     The matter returned on February 11, 2013, and on that date

defendant pled guilty in accordance with the plea offer.     During

her plea colloquy, defendant confirmed she had reviewed the plea

form with her attorney, understood the questions contained in the

form, and had answered them truthfully. The trial judge questioned

                                 3                          A-0460-17T4
defendant at length regarding her status as a legal permanent

resident.    The judge confirmed defendant was aware an Immigration

and Customs Enforcement detainer had been issued for her.                  The

judge confirmed defendant still wished to plead guilty.           Defendant

confirmed she had reviewed her criminal case with defense counsel,

was   satisfied     with    his   representation,   and   did   not   require

additional time or to speak with any other person before entering

into the plea.

      Defendant's answers on the plea form mirror her answers to

the judge's questions and her counsel's representations that he

had not provided her with any immigration related advice.                    In

pertinent part, defendant answered as follows:

            17 a.    Are you a citizen of the United States?

            [No.]

                           . . . .

            b. Do you understand that if you are not a
            citizen of the United States, this guilty plea
            may result in your removal from the United
            States . . . ?

            [Yes.]

            c. Do you understand that you have the right
            to seek individualized advice from an attorney
            about the effect your guilty plea will have
            on your immigration status?

            [Yes.]



                                       4                              A-0460-17T4
          d. Have you discussed with an attorney the
          potential immigration consequences of your
          plea?   If the answer is "No," proceed to
          question 17e. . . .

          [No.]

          e.   Would you like the opportunity to do so?

          [No.]

          f.    Having been advised of the possible
          immigration consequences and of your right to
          seek individualized legal advice on your
          immigration consequences, do you still wish
          to plead guilty?

          [Yes.]

     Defendant then admitted she was the caregiver for the victim,

a seven-month old infant.   Defendant testified she hit the victim

in the arm several times and kicked him knowing this could cause

him harm. The trial judge concluded defendant's plea was voluntary

and accepted it. The trial judge sentenced defendant in accordance

with the plea agreement.

     Defendant filed her PCR petition.     The PCR judge granted

defendant an evidentiary hearing.    Defendant thereafter and her

former defense counsel at the time of the plea and sentencing

testified.

     At the evidentiary hearing, defendant testified her defense

attorney had provided her with no advice regarding the immigration

consequences of her plea.   Instead, she indicated that the only


                                 5                         A-0460-17T4
advice she received was from her interpreter who said: "since I

am a refugee, [I] won't get deported."   Defendant further stated:

"The interpreter who interpreted [for] me he said that I don't

have to consult any immigration lawyer, [I] don't have to worry."

Defendant testified the trial judge had afforded her an adjournment

to speak with an immigration attorney.     She also testified she

told the trial judge she was satisfied with her defense counsel's

representation.

     Defense counsel testified he had represented non-citizen

defendants.   He stated his general practice with such clientele

was "[t]o have them contact an immigration attorney to see whether

or not their guilty plea . . . or conviction would affect their

immigration   status."    Defense   counsel    described   the   plea

negotiations in pertinent part as follows: ". . . no one wants to

go to prison but [defendant] was acceptable to the offer and . . .

she was advised to go speak to an immigration attorney to see how

it would affect her status since she was a refugee."

     Defense counsel testified similarly to defendant that the

trial judge had granted an adjournment of the plea hearing to

permit defendant to speak with an immigration attorney.           The

assistant prosecutor asked defense counsel what happened as a

result, and the following colloquy occurred:



                                6                            A-0460-17T4
          [Assistant   prosecutor]:   Did      [defendant]
          express having met with an           immigration
          attorney prior to returning?

          [Defense counsel]: I don't recall who she
          exactly met with or what his name was but she,
          I believe, she advised me that she had met
          with someone . . . during that time.

          [Assistant prosecutor]: Did [defendant] ever
          express any hesitation in pleading guilty as
          a result of these immigration consequence to
          you?

          [Defense counsel]: Not that I recall.

     As to the reasons why defendant would seek to avoid trial,

the following colloquy ensued between the assistant prosecutor and

defense counsel:

          [Assistant prosecutor]: Did [defendant] ever
          advise   you  of   any  defenses,   potential
          defenses, she had to these charges?

          [Defense counsel]: No, there was never any
          question that what occurred in the video is
          what happened. She never said that's not me
          in the video, she never said the video is
          spliced. It is what it is.

          [Assistant prosecutor]:     And   what was your
          opinion   then   about      the    strength  of
          [defendant's] case?

          [Defense counsel]:    I believe she had a very
          weak case and plea   negotiations and trying to
          give her the least   amount of exposure was the
          appropriate way to   proceed.

     The PCR judge granted defendant's petition.       He concluded

petitioner had proven ineffective assistance of counsel because


                                  7                          A-0460-17T4
defense counsel had failed to advise her of the immigration

consequences of the plea.   The judge also found defendant had been

prejudiced by counsel's performance because defendant would not

have pled guilty, but for counsel's failure to affirmatively advise

her of the immigration consequences of the plea.

     The State filed a motion for leave to appeal, and for a stay

of the PCR judge's order, which we granted.    On appeal the State

argues the following point:

          POINT I – PETITIONER RECEIVED THE EFFECTIVE
          ASSISTANCE OF COUNSEL.

          a.   The record shows Petitioner was aware
          that by pleading guilty she faced the risk of
          deportation.

          b.   Petitioner failed to demonstrate that she
          would not have pled guilty if not for
          counsel's deficient performance.

     To establish ineffective assistance of counsel, defendant

must satisfy a two-prong test:

          First, the defendant must show that counsel's
          performance was deficient.      This requires
          showing that counsel made errors so serious
          that counsel was not functioning as the
          "counsel" guaranteed the defendant by the
          Sixth Amendment. Second, the defendant must
          show that the deficient performance prejudiced
          the defense.     This requires showing that
          counsel's errors were so serious as to deprive
          the defendant of a fair trial, a trial whose
          result is reliable. Unless a defendant makes
          both showings, it cannot be said that the
          conviction or death sentence resulted from a


                                 8                          A-0460-17T4
            breakdown in the adversary             process      that
            renders the result unreliable.

            [Strickland v. Washington, 
466 U.S. 668, 687
            (1984); State v. Fritz, 
105 N.J. 42, 52 (1987)
            (quoting Strickland, 
466 U.S. at 687).]

    Counsel's performance is evaluated with extreme deference,

"requiring 'a strong presumption that counsel's conduct falls

within   the    wide   range    of   reasonable   professional     assistance

. . . .'"   Fritz, 
105 N.J. at 52 (alteration in original) (quoting

Strickland,     
466 U.S.    at    688-89).     "To   rebut    that    strong

presumption, a [petitioner] must establish . . . trial counsel's

actions did not equate to 'sound trial strategy.'"                     State v.

Castagna, 
187 N.J. 293, 314 (2006) (quoting Strickland, 
466 U.S.

at 689).       "Mere dissatisfaction with a 'counsel's exercise of

judgment' is insufficient to warrant overturning a conviction."

State v. Nash, 
212 N.J. 518, 542 (2013) (quoting State v. Echols,


199 N.J. 344, 358 (2009)).

    The Supreme Court has stated:

            When a guilty plea is part of the equation,
            we have explained that "[t]o set aside a
            guilty plea based on ineffective assistance
            of counsel, a defendant must show that (i)
            counsel's assistance was not 'within the range
            of competence demanded of attorneys in
            criminal cases'; and (ii) '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


                                        9                               A-0460-17T4
            (1994) (citations    omitted)    (alteration       in
            original).

            [State v. Nunez-Valdez, 
200 N.J. 129, 139
            (2009).]

       To demonstrate prejudice, "'actual ineffectiveness' . . .

must [generally] be proved[.]"         Fritz, 
105 N.J. at 52 (quoting

Strickland, 
466 U.S. at 692-93). Defendant must show the existence

of     "a   reasonable    probability     that,   but      for      counsel's

unprofessional errors, the result of the proceeding would have

been    different.    A   reasonable    probability   is   a     probability

sufficient to undermine confidence in the outcome." Ibid. (quoting

Strickland, 
466 U.S. at 694).

            In our review of a . . . PCR petition following
            an evidentiary hearing, we afford deference
            to the PCR judge's factual findings, as long
            as they are "supported by sufficient credible
            evidence in the record." Nash, 
212 N.J. at
           540; see also State v. Elders, 
192 N.J. 224,
            244 (2007) ("A trial court's findings should
            be disturbed only if they are so clearly
            mistaken 'that the interests of justice demand
            intervention and correction.'" (quoting State
            v. Johnson, 
42 N.J. 146, 162 (1964))).
            However, we do not defer to legal conclusions,
            which we review de novo. Nash, 
212 N.J. at
           540-41; see State v. Gregory, 
220 N.J. 413,
            419-20 (2015).

            [State v. Holland, 
449 N.J. Super. 427, 434
            (App. Div. 2017).]

       The State argues defendant's counsel was not ineffective

because counsel had advised defendant her plea may result in


                                  10                                  A-0460-17T4
deportation.    Defendant argues the law was clear that she would

be deported as a result of her plea and her counsel's failure to

affirmatively   advise   of   such    was   ineffective   assistance    of

counsel.

     The State also argues defendant failed to demonstrate any

prejudice by entering into the plea agreement because she achieved

a more favorable result than if she had proceeded to trial.

Defendant argues she was prejudiced because she had valid defenses

to the charges against her, and proceeding to a trial, even with

the slim chance of acquittal, was a better option than deportation.

     We recently recounted obligation of counsel to provide advice

where a criminal defendant may face deportation as a result of a

guilty plea.    We stated:

           In State v. Nunez-Valdez, 
200 N.J. 129, 143
           (2009), our State Supreme Court held that a
           defendant can show ineffective assistance of
           counsel by proving that his guilty plea
           resulted from "inaccurate information from
           counsel     concerning    the     deportation
           consequences of his plea." The Court's focus
           was on "false or misleading information" from
           counsel as establishing the violation of the
           defendant's constitutional rights.    Id. at
           138.

           Later, in Padilla v. Kentucky, 
559 U.S. 356,
           486 (2010), the United States Supreme Court
           held that counsel's failure to give any advice
           whatsoever about deportation might also be
           deficient performance in violation of a
           defendant's constitutional rights. . . .


                                     11                          A-0460-17T4
          The   Court    also  added    that   counsel's
          constitutional duty is not limited to avoiding
          incorrect advice. Counsel has an affirmative
          duty to inform a defendant when a guilty plea
          will result in deportation, at least where the
          relevant    law   pertaining    to   mandatory
          deportation    is   "succinct,    clear,   and
          explicit." Id. at 381.

          [State v. Brewster, 
429 N.J. Super. 387, 392-
          93 (App. Div. 2013) (emphasis added).]

     As noted, following the hearing, the PCR judge found the

first Strickland prong was met because plea counsel failed to

render affirmative advice to defendant regarding deportation as a

result of her plea.      We agree with the PCR judge plea counsel was

ineffective for failing to affirmatively advise defendant she

would be deported.

     Pursuant   to   8   U.S.C.   §   1227(a)(2)(A)(iii),   a   non-United

States citizen "convicted of an aggravated felony at any time

after admission is deportable."        An aggravated felony includes "a

crime of violence . . . for which the term of imprisonment [is]

at least one year."      8 U.S.C. § 1101(a)(43)(F).     Under 18 U.S.C.

§ 16, a crime of violence is defined as:

          (a) an offense that has as an element the use,
          attempted use, or threatened use of physical
          force against the person or property of
          another, or

          (b) any other offense that is a felony and
          that, by its nature, involves a substantial
          risk  that   physical  force   against  the


                                      12                           A-0460-17T4
           person . . . may be used in the course of
           committing the offense.

Additionally, 8 U.S.C. § 1227(a)(2)(E)(i) punishes a crime of

child abuse with deportation.

     Also, 8 U.S.C. § 1158(b)(2)(A)(ii) provides a person in the

United States who has been granted asylum "having been convicted

by a final judgment of a particularly serious crime, constitutes

a danger to the community of the United States[.]"           A person "who

has been convicted of an aggravated felony shall be considered to

have been convicted of a particularly serious crime."          8 U.S.C. §

1158(b)(2)(B)(i).    The person convicted thus loses asylum status

because   they   become   "deportable."     8   U.S.C.   §    1227(a)   and

(a)(2)(A)(iii).

     Defendant's guilty plea to endangering the welfare of a child

was a deportable offense because it was clearly an aggravated

felony and a crime of child abuse.        At the time, 
N.J.S.A. 2C:24-

4(a)1 stated:


1
  Subsequent to defendant's plea,         
N.J.S.A.   2C:24-4(a)(2)      was
amended and now reads as follows:

           Any person having a legal duty for the care
           of a child or who has assumed responsibility
           for the care of a child who causes the child
           harm that would make the child an abused or
           neglected child as defined in [
N.J.S.A.] 9:6-
           1, [
N.J.S.A.] 9:6-3, and [N.J.S.A.] 9:6-8.21[]
           is guilty of a crime of the second degree.


                                  13                               A-0460-17T4
         Any person having a legal duty for the care
         of a child or who has assumed responsibility
         for the care of a child who cause the child
         harm that would make the child an abused or
         neglected child . . . is guilty of a crime of
         the second degree.

    
N.J.S.A. 9:6-8.21 states, in pertinent part as follows:

         "Abused or neglected child" means a child less
         than 18 years of age whose parent or guardian,2
         as herein defined, (1) inflicts or allows to
         be inflicted upon such child physical injury
         by other than accidental means which causes
         or creates a substantial risk of death, or
         serious or protracted disfigurement, or
         protracted impairment of physical or emotional
         health or protracted loss or impairment of the
         function of any bodily organ; (2) creates or
         allows to be created a substantial or ongoing
         risk of physical injury to such child by other
         than accidental means which would be likely
         to cause death or serious or protracted
         disfigurement,    or    protracted   loss    or
         impairment of the function of any bodily
         organ; . . . (4) or a child whose physical,
         mental, or emotional condition has been
         impaired or is in imminent danger of becoming
         impaired as the result of the failure of his
         parent or guardian, as herein defined, to
         exercise a minimum degree of care . . . (b)
         in providing the child with proper supervision
         or guardianship, by unreasonably inflicting or
         allowing to be inflicted harm, or substantial
         risk thereof, including the infliction of

         Any other person who engages in conduct or who
         causes harm as described in this paragraph to
         a child is guilty of a crime of the third
         degree.

2 N.J.S.A. 9:6-8.21(a) states: "'Parent or guardian' means . . .
any person, who has assumed responsibility for the care, custody,
or control of a child or upon whom there is a legal duty for such
care."

                              14                           A-0460-17T4
           excessive corporal punishment; or by any other
           acts of a similarly serious nature requiring
           the aid of the court[.]

     As noted, defendant testified she was the victim's caregiver,

and that she punched him several times and kicked him. Defendant's

conduct as a caregiver placed her seven-month old victim at risk

of harm or serious injury.          Therefore, defendant provided an

adequate factual basis to meet the elements of the criminal offense

of endangering the welfare of a child.         Because the elements of

the offense were met, defendant was clearly deportable for having

committed an "aggravated felony," "a crime of child abuse," or a

"particularly serious crime" as defined by federal statute.

     We agree with the PCR judge that providing defendant with

this advice would have required no more than basic legal research.

It did not require an expertise in immigration law to point out

defendant's exposure to deportation, which was clearly explicated

by federal statute and did not require a nuanced legal analysis.

The record demonstrates plea counsel instead suggested defendant

speak   with   an   immigration   attorney   rather   than   affirmatively

providing the necessary legal advice contrary to the mandate of

Padilla.   For these reasons, the first Strickland prong was met.

     Notwithstanding, the record fails to support the PCR judge's

finding the second Strickland prong was met.            The judge's only

findings in this regard were that "despite the strength of the

                                    15                             A-0460-17T4
[State's] case, [defendant] has shown . . . but for counsel's

errors, that she would not have pled guilty."

     Defendant argues she would not have pled guilty because she

had valid defenses to the charge, namely, that she suffers from

mental illness, and the victim was uninjured.                    Defendant also

argues if she had known she would be deported she would have

proceeded to trial.        Citing Lee v. United States, ___ U.S. ___,


137 S. Ct. 1958 (2017), defendant asserts avoiding deportation was

the determinative factor in agreeing to the plea.                     Thus, she

asserts it would have been a better outcome if she had proceeded

to trial on the slim chance she would be acquitted.

     We reject defendant's argument and the PCR judge's reasoning

that but for counsel's failure to affirmatively advise defendant

regarding the deportation consequences defendant would not have

pled guilty. As noted, the victim was a defenseless infant. There

was video evidence of defendant's assault on the victim clearly

proving   the   State's    case    pursuant      to   
N.J.S.A.   2C:24-4(a)(2).

Defendant's     mental    health   and     the   lack   of   injury   would   not

constitute valid defenses to the fact she endangered the welfare

of the infant victim.

     Furthermore, defendant misreads the facts and holding of Lee.

Indeed, in Lee the United States Supreme Court stated:



                                      16                                 A-0460-17T4
         A grand jury indicted Lee on one count of
         possessing ecstasy with intent to distribute
         . . . . Lee retained an attorney and entered
         into plea discussions with the Government.
         The attorney advised Lee that going to trial
         was "very risky" and that, if he pleaded
         guilty, he would receive a lighter sentence
         than he would if convicted at trial. . . .
         Lee informed his attorney of his noncitizen
         status and repeatedly asked him whether he
         would face deportation as a result of the
         criminal proceedings. The attorney told Lee
         that he would not be deported as a result of
         pleading guilty. Based on that assurance, Lee
         accepted the plea . . . .

         [Lee, ____ U.S. ____, 
137 S. Ct.  at 1963
         (citations omitted) (emphasis added).]

    Finding the prejudice prong had been established in Lee, the

Court stated:

         A defendant without any viable defense will
         be highly likely to lose at trial.      And a
         defendant facing such long odds will rarely
         be able to show prejudice from accepting a
         guilty plea that offers him a better
         resolution than would be likely after trial.
         But that is not because the prejudice inquiry
         in this context looks to the probability of a
         conviction for its own sake. It is instead
         because defendants obviously weigh their
         prospects at trial in deciding whether to
         accept a plea.     Where a defendant has no
         plausible chance of an acquittal at trial, it
         is highly likely that he will accept a plea
         if the Government offers one.

         But common sense (not to mention our
         precedent) recognizes that there is more to
         consider than simply the likelihood of success
         at trial.    The decision whether to plead
         guilty also involves assessing the respective
         consequences of a conviction after trial and

                              17                          A-0460-17T4
           by plea. See INS v. St. Cyr, 
533 U.S. 289,
           322-323 (2001). When those consequences are,
           from the defendant’s perspective, similarly
           dire, even the smallest chance of success at
           trial may look attractive.     For example, a
           defendant with no realistic defense to a
           charge carrying a [twenty]-year sentence may
           nevertheless    choose     trial,    if    the
           prosecution’s plea offer is [eighteen] years.
           Here Lee alleges that avoiding deportation was
           the determinative factor for him; deportation
           after some time in prison was not meaningfully
           different from deportation after somewhat less
           time.    He says he accordingly would have
           rejected any plea leading to deportation—even
           if it shaved off prison time—in favor of
           throwing a "Hail Mary" at trial.

           [Id. at 1966-67 (citations omitted).]

     The facts here are different than Lee.          As noted, Lee was

affirmatively advised by his counsel, albeit erroneously, that he

would be deported unless he entered into the plea. Here, defendant

received no advice from defense counsel other than, perhaps, to

confer with an immigration attorney.

     Moreover, the consequences of proceeding to trial as opposed

to accepting a plea were not "similarly dire" for defendant as the

Lee Court contemplated might impel a defendant to proceed to trial.

Indeed,   defendant   was   sentenced   in   accordance   with   the   plea

agreement, which treated the offense as a third-degree offense and

received a three-year-term.      Defendant avoided a prosecution on

the child abuse and bail jumping charges, which were dismissed.

She avoided a trial and conviction on the endangering of a child

                                  18                               A-0460-17T4
charge as a second-degree offense for which defendant faced a

maximum sentence of ten years.

     Finally,    we   note   defendant's   testimony   during   the   plea

hearing and the testimony of her PCR counsel dispel her argument

here that deportation was the prime motivator for her decision to

accept the plea. Therefore, Lee is inapposite. For these reasons,

the second Strickland prong was not met.

     Reversed.    Defendant's conviction is reinstated.




                                   19                             A-0460-17T4