STATE OF NEW JERSEY v. NARADA HOUSEN
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1933-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NARADA HOUSEN,
Defendant-Appellant.
____________________________
Submitted March 21, 2018 – Decided April 11, 2018
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
10-02-0119.
Joseph E. Krakora, Public Defender, attorney
for appellant (Karen A. Lodeserto, 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 Narada Housen appeals from the November 4, 2016
denial of his petition for post-conviction relief (PCR) without
an evidentiary hearing. After a review of the arguments in light
of the record and applicable principles of law, we affirm.
Defendant was born in Jamaica and is not a United States
citizen. On February 4, 2010, defendant was indicted for fourth-
degree distribution of marijuana,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(12) (count one); third-degree distribution of
marijuana within 1000 feet of school property,
N.J.S.A. 2C:35-7
and
N.J.S.A. 2C:35-5(a) (count two); fourth-degree distribution
of marijuana,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(12)
(count three); third-degree distribution of marijuana within 1000
feet of school property,
N.J.S.A. 2C:35-7 and
N.J.S.A. 2C:35-5(a)
(count four); fourth-degree distribution of marijuana,
N.J.S.A.
2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(12) (count five); third-
degree distribution of marijuana within 1000 feet of school
property,
N.J.S.A. 2C:35-7 and
N.J.S.A. 2C:35-5(a) (count six);
fourth-degree possession of marijuana with intent to distribute,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(12) (count seven);
and third-degree possession of heroin with intent to distribute,
N.J.S.A. 2C:35-7 and
N.J.S.A. 2C:35-5(a) (count eight).
Trial counsel was successful in arranging for defendant to
enter into pre-trial intervention (PTI) without a guilty plea in
order to minimize the immigration consequences of his criminal
charges. Defendant violated the PTI conditions by failing to
2 A-1933-16T3
report to his supervising officer and failing to complete the
required community service. Defendant absconded and failed to
appear for his PTI termination hearing, which resulted in his
subsequent arrest and incarceration. On June 14, 2011, defendant's
enrollment in PTI was terminated for non-compliance.
Thereafter, the State extended a non-custodial probation plea
offer, which defendant rejected. Trial counsel engaged in further
plea negotiations resulting in the State offering to recommend
vacating the prior PTI termination and re-enrolling defendant into
PTI in exchange for defendant conditionally pleading guilty to
count three.
On January 30, 2012, defendant accepted the plea offer and
conditionally pled guilty to count three in exchange for the
prosecutor agreeing to recommend his re-enrollment into PTI for
six months. In his answers to questions on the plea forms,
defendant admitted he was not a U.S. citizen and acknowledged he
understood his plea might result in his removal from the United
States and prevent him from being able to re-enter. He indicated
he understood he had the right to speak with an immigration
attorney and acknowledged he had discussed the potential
immigration consequences of his plea with an attorney. In his
answer to question 17(e) on the plea form, defendant specifically
3 A-1933-16T3
declined the opportunity to "get an attorney to discuss" the
immigration consequences of his plea.
During the plea hearing, defendant testified he answered all
of the questions on the plea forms truthfully. He stated he was
born in Jamaica in 1991 and confirmed he was not a citizen of the
United States. The trial court explained entry of a guilty plea
could result in his deportation. Defendant responded he understood
and still wished to plead guilty after having been advised of the
possible immigration consequences of his plea.
The trial court questioned defendant regarding his
understanding of the plea. Defendant confirmed counsel had
explained all of the elements of the plea agreement and the plea
forms. He also acknowledged that he understood everything, and
that he had no questions. Defendant then confirmed he had enough
time to discuss the case with counsel and that he was pleading
guilty of his own volition.
The trial court determined defendant entered his plea freely,
knowingly, and voluntarily. The court warned defendant that if
he failed to complete his community service or any of the
conditions of PTI, including a continued violation of the terms
of his plea agreement, he would be placed on probation and risk
incarceration and deportation.
4 A-1933-16T3
Defendant was re-enrolled into PTI. As part of his PTI
conditions, defendant was required to perform community service.
Defendant again failed to comply with his PTI conditions. On
April 12, 2013, defendant failed to appear at his termination
hearing. As a result, defendant was terminated from PTI a second
time and scheduled for sentencing on count three. On July 19,
2013, defendant was sentenced to probation conditioned upon
completing requirements similar to his PTI program; his community
service requirement was increased to 100 hours. The trial court
again informed defendant he could be deported and noted he had
been told of the immigration consequences at the plea hearing.
On July 11, 2014, defendant was arrested by police in
Paterson, New Jersey for unlawful possession of a handgun and
third-degree resisting arrest. He pled guilty under Accusation
No. 14-08-0742 and was subsequently sentenced to a four-year prison
term with one year of parole ineligibility.
Defendant was also charged with violation of probation (VOP)
for possessing a handgun without a permit. On January 23, 2015,
defendant appeared for the VOP hearing. The State noted defendant
was deportable as a result of his violation of probation and the
court also confirmed defendant had been previously informed of the
deportation consequences of his actions. Defendant's probation
5 A-1933-16T3
was terminated, and he was sentenced on the VOP to a concurrent
one-year flat prison term.
On January 6, 2016, defendant filed his PCR petition.
Defendant claimed his plea counsel did not investigate his case
and failed to inform him of the nature and consequences of the
charges against him. Defendant was assigned PCR counsel who filed
a supplemental brief. PCR counsel alleged that plea counsel was
ineffective because defendant was misadvised of the deportation
consequences of his plea and argued defendant was entitled to
withdraw his plea.
During oral argument, counsel informed the PCR court that
defendant was the subject of deportation proceedings and claimed
plea counsel had informed defendant he would not be subject to
deportation as a result of his plea. PCR counsel asked the PCR
court to either vacate defendant's plea or order an evidentiary
hearing.
The PCR court denied defendant's petition without an
evidentiary hearing. The PCR court determined that there was
nothing in the record to support defendant's contention that trial
counsel did not investigate the case. The PCR court also
determined the argument alleging misrepresentation by counsel
regarding the immigration consequences of defendant's plea lacked
merit because there was no colorable claim of innocence and the
6 A-1933-16T3
record belied defendant's claim. On the contrary, the PCR court
found plea counsel was "extremely effective" by procuring the
initial plea agreement, which allowed defendant to enter into PTI
without a guilty plea, thereby avoiding the potential for
deportation had he successfully completed the PTI requirements.
The PCR court also found plea counsel was effective by obtaining
a second plea offer for defendant to re-enroll into PTI in exchange
for a conditional guilty plea after defendant was terminated from
PTI due to noncompliance.
The PCR court emphasized the immigration consequences of
defendant's plea were discussed "at every step of the way on the
record." The PCR court also noted defendant failed to complete
PTI a second time and was placed on probation, which he later
violated. Taking into consideration that the immigration
consequences were addressed on the record and on the plea forms,
the PCR court concluded there was no basis for an evidentiary
hearing. This appeal followed.
On appeal, defendant raises the following issue:
DEFENDANT SHOULD BE ENTITLED TO AN EVIDENTIARY
HEARING UNDER STATE V. GAITAN AND UNITED
STATES V. OROCIO.
The standard for determining whether counsel's performance
was ineffective for purposes of the Sixth Amendment was formulated
in Strickland v. Washington,
466 U.S. 668 (1984), and adopted by
7 A-1933-16T3
our Supreme Court in State v. Fritz,
105 N.J. 42 (1987). In order
to prevail on a claim of ineffective assistance of counsel,
defendant must meet a two-prong test, establishing both that: (l)
counsel's performance was deficient and he or she made errors that
were so egregious that counsel was not functioning effectively as
guaranteed by the Sixth Amendment to the United States
Constitution; and (2) the defect in performance prejudiced
defendant's rights to a fair trial such that there exists a
"reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland,
466 U.S. at 694.
In the context of a guilty plea, "a defendant must prove that
there is a reasonable probability that, but for counsel's errors,
[he or she] would not have pled guilty and would have insisted on
going to trial." State v. Gaitan,
209 N.J. 339, 351 (2012)
(alteration in original) (citations omitted) (quoting State v.
Nuñez-Valdéz,
200 N.J. 129, 139 (2009) (quoting State v. DiFrisco,
137 N.J. 434, 457 (1994)). A defendant must also convince the
court that "a decision to reject the plea bargain would have been
rational under the circumstances." Padilla v. Kentucky,
559 U.S. 356, 372 (2010) (citation omitted). The "defendant must allege
specific facts and evidence supporting his allegations," State v.
Porter,
216 N.J. 343, 355 (2013), and "must do more than make bald
8 A-1933-16T3
assertions that he [or she] was denied the effective assistance
of counsel," State v. Cummings,
321 N.J. Super. 154, 170 (App.
Div. 1999).
Defendant contends the court erred when it denied his request
for an evidentiary hearing. He claims he was never made aware
that his plea would affect his immigration status and could lead
to his deportation. An evidentiary hearing is required only when
a defendant establishes: (1) a prima facie case in support of PCR;
(2) material issues of disputed fact lie outside of the record;
and (3) the resolution of those issues necessitate a hearing.
State v. Preciose,
129 N.J. 451, 462-63 (1992); R. 3:22-10(b).
"To establish a prima facie case, defendant must demonstrate a
reasonable likelihood that his or her claim, viewing the facts
alleged in the light most favorable to the defendant, will
ultimately succeed on the merits." R. 3:22-10(b). We agree with
the PCR judge that defendant has not established a prima facie
claim under the Strickland-Fritz test.
"[T]o 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." Gaitan,
209 N.J. at 356 (citing
Padilla,
559 U.S.at 373-74 (concerning deportation consequences
to a criminal defendant)). Importantly, "[c]ourts should not
9 A-1933-16T3
upset a plea solely because of post hoc assertions from a defendant
about how he would have pleaded but for his attorney's
deficiencies. Judges should instead look to contemporaneous
evidence to substantiate a defendant's expressed preferences."
Lee v. United States, 582 U.S. ___,
137 S. Ct. 1958, 1967 (2017).
The record demonstrates defendant was informed of the
immigration consequences of his plea. His answers to the questions
of the plea form confirmed that he understood the immigration
consequences of his plea, discussed the immigration consequences
with an attorney, and had the opportunity to further discuss the
immigration consequences with an attorney, which he declined.
There is no support for his contention that his attorney
provided him with affirmatively misleading advice. Defendant
fails to provide specific details about the alleged off-the-record
conversation with plea counsel, does not point to any specific
facts and evidence to support his claims, and only presents bald
assertions. Thus, he does not allege facts "sufficient to
demonstrate counsel's alleged substandard performance." State v.
Jones,
219 N.J. 298, 312 (2014) (quoting Porter,
216 N.J. at 355).
Bald assertions are insufficient to entitle a defendant to an
evidentiary hearing. Cummings,
321 N.J. Super. at 170.
Moreover, defendant presented no colorable claim of innocence
or other credible evidence that he would have rejected the plea
10 A-1933-16T3
agreements and insisted on going to trial but for the alleged
deficiencies in trial counsel's performance. See State v. Banks,
349 N.J. Super. 234, 245 (App. Div. 2001), aff'd,
171 N.J. 466
(2002) (per curiam). He has not demonstrated a "reasonable
likelihood" that his claims "will ultimately succeed on the
merits." R. 3:22-10(b).
We are satisfied from our review of the record that defendant
failed to make a prima facie showing of ineffective assistance of
trial counsel within the Strickland-Fritz test. Accordingly, the
PCR court correctly concluded that an evidentiary hearing was not
warranted.
Affirmed.
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