STATE OF NEW JERSEY v. ROGER COLEY
Annotate this CaseNOT 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-0905-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROGER COLEY,
Defendant-Appellant.
__________________________
Submitted March 14, 2018 – Decided April 11, 2018
Before Judges Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
13-07-0726.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh,
Chief Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
Defendant appeals from an August 17, 2016 order denying his
first petition for post-conviction relief (PCR) without a plenary
hearing. We reverse and remand for an evidentiary hearing because
defendant has established a prima facie case of receiving
inaccurate advice regarding the deportation consequences of his
guilty plea.
At defendant's September 9, 2013 arraignment, after finding
out that defendant was born in Jamaica, the court advised
defendant:
THE COURT: All right. I wish to inform
you that you have the right to seek
individualized legal advice as to what effect
a criminal disposition will have — criminal
disposition in this case will have on your
ability to remain in the United States or
lawfully enter the United States. Do you
understand?
THE DEFENDANT: Yeah. I —
THE COURT: All right? You understand
that?
[DEFENSE COUNSEL]: Yeah. They're saying
you have the right to talk to an immigration
lawyer if you want to, but they're not going
to supply one. You have to hire one on your
own. If you want to find out what the results
— in other words, if you want — if you want
to find out what the immigration consequences
are for being convicted of any one of these
offenses, you have a right to speak [to] an
immigration lawyer but the Court doesn't
supply one.
On October 28, 2013, defendant pled guilty to a 2010
indictment charging third-degree possession of marijuana with
intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-
2 A-0905-16T4
5(b)(11), and a 2013 indictment charging third-degree possession
of marijuana within 1000 feet of school property,
N.J.S.A. 2C:35-
7, and second-degree unlawful possession of a handgun, N.J.S.A.
2C:-39(5)(b). After placing the factual bases for the pleas on
the record, defense counsel asked defendant about his citizenship:
Q: Okay. You are not a United States
citizen. Is that correct?
A: Yes. No, it's not.
Q: Okay. You were born in Jamaica.
Is that right?
A: Yes.
Q: Okay. Do you understand that by
pleading guilty to these . . . charges that
you will be deported back to the country of
Jamaica when you finish your sentence here.
Do you understand that?
A: Yes.
Q: You and I've had discussions about
that. Is that correct?
A: Yes.
Defendant further testified that he had completed the plea
forms with his attorney's assistance, that he was able to read and
understand everything on the forms, and that his answers to the
questions were true and accurate. His answers to question 17 on
the plea form for each indictment indicated that defendant was not
a citizen of the United States, that he understood his guilty plea
could result in his removal, and that he understood he had the
3 A-0905-16T4
right to seek advice from an attorney as to the effect of his
guilty plea on his immigration status. "Yes" was circled in
response to question 17(d), which asked if he had discussed the
potential immigration consequences of his plea with an attorney.
However, "yes" was also circled in response to question 17(e)
which asked if he "[w]ould like the opportunity to do so." "Yes"
was also circled in response to question 17(f), which asked
"[h]aving 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?"
The judge addressed the immigration consequences of
defendant's plea as follows:
THE COURT: All right. And you already
indicated that you are not a U.S. citizen,
correct?
THE DEFENDANT: Yes, Your Honor.
THE COURT: All right. Now I have to
advise you of a number of things that
[counsel] went over with you as well. Do you
understand that if you are not a U.S. citizen,
these guilty pleas may result in your removal
from the United State[s] and may stop you from
being able to legally enter or re-enter the
United States? Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You have the right to seek
individualized legal advice from an
immigration attorney about the effect your
guilty plea will have on your immigration
status. Do you understand that?
4 A-0905-16T4
THE DEFENDANT: Yes, Your Honor, but
excuse me. I . . . don't got no money to hire
no immigration lawyer right now.
THE COURT: I see. All right. But you've
discussed the issue with [defense counsel].
Is that right?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. [Counsel], you have
consulted with people in your office who are
knowledgeable about immigration consequences?
[DEFENSE COUNSEL]: We have access to an
immigration attorney who is associated with
the Appellate Section of the Public Defender's
Office. But from my knowledge, this is the
kind of a case, possession with intent to
distribute drugs and possession of a handgun,
which require deportation just from prior
experience. So that's what I told him. I
advised [defendant] that.
THE COURT: All right. Sir, 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?
THE DEFENDANT: Yes, Your Honor.
THE COURT: All right. Now with
everything I've just gone over with you,
again, are you sure that you want to plead
guilty?
THE DEFENDANT: Yes, Your Honor.
Before accepting the guilty plea, the court asked defendant
if he had "any other questions." The following colloquy then took
place:
5 A-0905-16T4
THE DEFENDANT: I would like to talk to
immigration lawyer, but . . . I don't got no
money to hire one. How . . . could I - -
[DEFENSE COUNSEL]: I think you probably
want to talk to an immigration lawyer about
not being deported, right?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: That's . . . the
reason. That's separate and apart. In other
words, . . . when the [j]udge asks you and the
question's framed in the plea form would you
like to speak to an immigration lawyer, it has
to do with speaking with an immigration lawyer
and deciding whether or not you want to accept
a guilty plea. Okay?
THE DEFENDANT: Yeah. Oh.
[DEFENSE COUNSEL]: Whether or not you
get deported is a separate issue that you - -
my understanding is that you want to speak to
an immigration lawyer about. Is that correct?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: Yeah. That's right.
That's 'cause you have other issues. You have
a child who was born in the United States.
You had a relationship. You think that that
may have some relevance in preventing you from
being deported. Is that correct?
THE DEFENDANT: Yeah. I got two kids . . .
here.
[DEFENSE COUNSEL]: Two. Right. That's
right. So it's a different issue than the
issue of whether or not you want to speak to
an immigration lawyer in deciding whether or
not you want to enter the guilty plea. Do you
understand that?
THE DEFENDANT: Yes.
6 A-0905-16T4
[DEFENSE COUNSEL]: Okay.
THE COURT: [T]he bottom line question
is this. Do you want to proceed with your
guilty plea today and then be sentenced on
December 6th, or do you want to not plead today
because you want the opportunity to speak to
an immigration lawyer?
THE DEFENDANT: I want to plead. I want
to plead.
THE COURT: You want to plead.
THE DEFENDANT: Yes.
THE COURT: Okay. All right. Any other
questions?
THE DEFENDANT: No.
THE COURT: Is there anything about these
proceedings or the consequences of your guilty
pleas that you don't understand?
THE DEFENDANT: I understand everything,
Your Honor.
The court then accepted defendant's guilty pleas finding that he
understood the charges against him and the consequences of the
plea agreement.
On December 6, 2013, defendant was sentenced in accordance
with the plea agreement to an aggregate sentence of five years in
prison with one year of parole ineligibility. There was no mention
of the immigration consequences at the sentencing hearing.
On appeal, defendant argues:
7 A-0905-16T4
POINT I: THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE WAS ENTITLED TO WITHDRAW HIS GUILTY PLEA
ON THE BASIS HE HAD FAILED TO RECEIVE ADEQUATE
LEGAL REPRESENTATION FROM TRIAL COUNSEL
REGARDING THE DEPORTATION CONSEQUENCES
ARISING OUT OF HIS GUILTY PLEA, RESULTING IN
A GUILTY PLEA WHICH HAD NOT BEEN FREELY,
KNOWINGLY AND VOLUNTARILY ENTERED.
Defendant submitted a certification stating that defense
counsel told him "he did not know if [he] would be deported and
[his] immigration question was a separate matter that was to be
handled at a different time and place." Defendant alleged he
understood that deportation was a possibility, but he was not told
"the crimes that [he] was pleading guilty to were considered
aggravated felonies and therefore [his] deportation would not be
something that [he] could fight against." He certified that "[h]ad
[he] known that [his] guilty plea was going to make [his]
deportation mandatory [he] never would have entered into the plea
[and] would have taken the matter to trial."
The PCR judge conducted a non-evidentiary hearing, reviewing
the testimony and colloquy from the plea hearing as well as the
plea forms. The judge stated that the transcript of the plea
hearing "clearly indicate[d] that defendant was advised . . . if
he plead[ed] guilty to the charges, he would be deported." The
judge further opined that "[d]efendant's contention that he was
8 A-0905-16T4
misled by [defense counsel] when he stated that his deportation
was a separate issue from his guilty plea [was] without merit."
The PCR judge explained that "[d]efendant's contention that he has
two children to support [was] a separate hardship issue, which
could be made to the Board of Immigration Appeals." He found that
"[d]efendant did not receive incorrect or misleading . . .
immigration advice from [defense counsel]." The judge noted
defendant's "plea offer was very favorable, involving a Graves Act
departure" and "[t]he plea transcript clearly indicate[d]
[defendant] wished to plead guilty."
Defendant argues an evidentiary hearing was required because
he established a prima facie case of ineffective assistance of
counsel under Strickland v. Washington,
466 U.S. 668, 687, 694
(1984). Defendant contends that defense counsel "should have
unequivocally informed [him] his deportation would be mandatory
[and] the fact he had two children born in the United States would
not prevent his deportation."
The State responds that under Padilla v. Kentucky,
559 U.S. 356, 367-69 (2010), defense counsel was required to advise
defendant of the deportation consequences of his guilty plea but
was not required to advise him as to the "legal ramifications of
having U.S.- born children."
9 A-0905-16T4
A defendant is entitled to an evidentiary hearing on a
petition for PCR when (1) he establishes a prima facie case in
support of PCR; (2) "there are material issues of disputed fact
that cannot be resolved by reference to the existing record"; and,
(3) "an evidentiary hearing is necessary to resolve the claims for
relief." R. 3:22-10(b). "To establish a prima facie case,
defendant must demonstrate a reasonable likelihood that his . . .
claim, viewing the facts alleged in the light most favorable to
the defendant, will ultimately succeed on the merits." Ibid.;
accord State v. Porter,
216 N.J. 343, 355 (2013).
To prove ineffective assistance of defense counsel, a
defendant must show that counsel's performance was deficient and
that, but for counsel's errors, there is a reasonable probability
he would not have pled guilty. Strickland,
466 U.S. at 687; State
v. DiFrisco,
137 N.J. 434, 457 (1994). Further, "to satisfy a
defendant's Sixth Amendment right to effective assistance of
counsel, counsel has an affirmative obligation to inform a client-
defendant when a plea places the client at risk of deportation."
State v. Gaitan,
209 N.J. 339, 356 (2012) (citing Padilla,
559 U.S. at 374). "[C]ounsel's failure to point out to a noncitizen
client that he . . . is pleading to a mandatorily removable offense
[constitutes] deficient performance of counsel." Id. at 380.
10 A-0905-16T4
Here, defense counsel clearly informed defendant that he
would be deported as a result of his guilty pleas. The record,
however, also supports defendant's contention that his counsel
told him the fact of parenting two children in the United States
might allow him to remain in this country. Defendant has certified
that his "understanding, after speaking with [his] attorney, was
that it was still possible to remain in the United States because
[he had] two children that were born here." Defense counsel's
advice in open court was, at best, ambiguous and contradictory.
Defendant certified that he would not have pled guilty had he
known that deportation was mandatory. As recognized by the United
States Supreme Court, "[p]reserving the client's right to remain
in the United States may be more important to the client than any
potential jail sentence." Padilla,
559 U.S. at 368 (quoting INS
v. St. Cyr,
533 U.S. 289, 322 (2001)).
Defendant has established a prima facie case of ineffective
assistance of counsel under Strickland. We therefore remand for
an evidentiary hearing to determine whether defense counsel
provided false or misleading advice as to the impact defendant's
children would have on the likelihood of deportation and whether
any inaccurate advice caused defendant to plead guilty.
Reversed and remanded for an evidentiary hearing. We express
no view on the outcome nor do we retain jurisdiction.
11 A-0905-16T4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
