STATEOF NEW JERSEY v. PRATYUSH BHAGAT

 


                        NOT FOR PUBLICATION WITHOUT THE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-2638-16T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

PRATYUSH BHAGAT,

     Defendant-Appellant.
_______________________________

              Argued February 12, 2018 – Decided July 16, 2018

              Before Judges Sabatino and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment
              Nos. 09-08-1291 and 10-02-0300.

              Michael S. Allongo argued the cause for
              appellant   (The  Allongo   Law  Firm,   LLC,
              attorneys; Michael S. Allongo, on the brief).

              Nancy A. Hulett, Assistant Prosecutor, argued
              the cause for respondent (Andrew C. Carey,
              Middlesex County Prosecutor, attorney; Nancy
              A. Hulett, of counsel and on the brief).

PER CURIAM
     Defendant Pratyush Bhagat appeals from the January 13, 2017

order denying reconsideration of his petition for post-conviction

relief (PCR).    For the reasons that follow, we affirm.

     Defendant was born in India and is not a citizen of the United

States.    He was a lawful resident of this country with a visitor's

visa and later obtained a student visa while attending college.

     In two separate indictments, defendant was charged with nine

controlled dangerous substance (CDS) possession or distribution

counts: seven stemming from an April 2009 arrest and two from a

January 2010 arrest that occurred while he was out on bail.

     Defendant initially retained a lawyer to represent him in

these matters. After defendant was denied admission to drug court,

the lawyer allegedly planned to file a motion to suppress evidence

on defendant's behalf.      However, the night before the suppression

hearing, defendant retained a new lawyer.           The second lawyer,

defendant's plea counsel, then began negotiating with the State.

     On April 15, 2010, defendant married his then-fiancée, an

American citizen, allegedly acting on plea counsel's advice to

obtain lawful residency.      The next day, defendant pled guilty to:

second-degree possession with the intent to distribute cocaine,


N.J.S.A.    2C:35-5(a)(1)    and   2C:35-5(b)(2);   and   second-degree

possession with the intent to distribute heroin, 
N.J.S.A. 2C:35-

5(a)(1) and 2C:35-5(b)(2).         In exchange, the State agreed to

                                    2                           A-2638-16T2
dismiss all other counts from the indictments and recommend a

consecutive sentence of five years for the first indictment and

three years for the second indictment.

     A different lawyer, from the same office as plea counsel,

represented defendant at the plea hearing.            During the hearing,

the prosecutor asked defendant if he reviewed the plea form, and

defendant acknowledged he did.         The prosecutor then specifically

addressed defendant's status as an immigrant, asking "[d]o you

understand that, there is a strong likelihood, that once you plead

guilty, you probably will be deported back to India?"              Defendant

responded, "[y]es."     In addition, the plea judge explained to

defendant    that   "pleading    guilty      will     subject     [him]     to

deportation."   Again, defendant responded that he understood.            The

court ultimately accepted defendant's guilty plea.

     After   entering   his   guilty    plea,   but   before     sentencing,

defendant began the process of attempting to gain resident status

as the immediate relative of an American citizen.               According to

defendant, he believed he would be approved since he was married

to an American citizen.

     Defendant then retained a different law firm to represent him

at sentencing on July 26, 2010, where sentencing counsel provided

the court with a history of defendant's case.          In pertinent part,

he argued, "the tragedy of all of this not only is he is going to

                                   3                                 A-2638-16T2
jail – nobody wants to go to jail – he's going to be deported.

It's almost a guarantee based upon the record when he gets paroled

out of the State Prison system."           The court sentenced defendant

in accordance with the plea agreement to an aggregate term of

eight years.

       On January 10, 2011, the United States Department of Homeland

Security notified defendant of its intention to deport him because

of   the   convictions.       Thereafter,    on    February    10,   2012,      an

immigration      court   ordered   defendant   removed     from    the    United

States.

       On July 24, 2015, defendant filed a petition for PCR, arguing

plea   counsel    provided    ineffective    assistance     of    counsel     for

failing to advise him of the mandatory immigration consequences

of pleading guilty.       At the PCR evidentiary hearing, plea counsel

testified   he    recalled   defendant's    case    in   particular      because

defendant offered him drugs in lieu of payment.               He testified he

did not give defendant immigration advice, and if asked, he would

have referred defendant to an immigration attorney.               Plea counsel

also denied advising defendant to marry his then-fiancée in order

to avoid deportation.        He stated he would have advised defendant

that the crimes charged were deportable offenses, but was not

confident he told defendant deportation was mandatory.                    During

cross-examination, plea counsel testified he knew of defendant's

                                      4                                  A-2638-16T2
alien status and recalled telling defendant and his parents that

defendant would "very likely" be deported. Plea counsel maintained

defendant was more concerned with the length of his prison sentence

than deportation.

     Defendant testified and offered a different version of his

consultation with plea counsel.       Defendant denied offering drugs

in exchange for legal services.       When the deportation issue was

discussed, defendant testified plea counsel leaned in and said,

"Why don't you get married to an American citizen?"             Defendant

denied plea counsel gave him the name of an immigration attorney

or reviewed the plea forms with him.          He further testified plea

counsel did not advise him that a guilty plea would result in

mandatory deportation, a lifetime bar to American citizenship, and

mandatory detention until removal.

     On September 2, 2016, the trial judge denied defendant's

petition in a written opinion.    The judge found plea counsel was

a credible witness and defendant was not credible.              The judge

rejected   defendant's   contention    that    plea   counsel   suggested

marriage to avoid deportation.    The judge reasoned the plea form,

which defendant reviewed with the attorney who appeared for the

entry of the plea, and defendant's colloquy with the plea judge,

illustrated he knew he was subject to deportation.         Moreover, the

judge noted defendant testified he was satisfied with the plea

                                  5                               A-2638-16T2
deal because it reduced his exposure to jail time.     Ultimately,

the court found defendant did not satisfy his burden under either

prong of the Strickland1 standard.

      Defendant moved for reconsideration of his PCR petition, and

after oral argument, the court denied this motion on January 13,

2017.   This appeal followed.

      On appeal, defendant raises the following arguments:

           THE TRIAL COURT FAILED TO CONSIDER THAT EVEN
           IF [PLEA COUNSEL] HAD NOT GIVEN ANY INCORRECT
           ADVICE ABOUT MARRIAGE, [PLEA COUNSEL] FAILED
           TO FULFILL HIS DUTY UNDER PADILLA2 BECAUSE HE
           FAILED TO ADVISE MR. BHAGAT THAT DEPORTATION
           WAS NOT JUST POSSIBLE, BUT MANDATORY.

           THE   TRIAL   COURT  ERRED   IN   CONSIDERING
           STATEMENTS BY THE JUDGE AND THE PROSECUTOR
           REGARDING DEPORTATION AS RELIEVING DEFENSE
           COUNSEL OF HIS OBLIGATION UNDER PADILLA.

           THE TRIAL COURT ERRED IN FINDING THAT
           STATEMENTS BY THE TRIAL COURT AND PROSECUTOR
           CURED THE PREJUDICE CAUSED BY [PLEA COUNSEL]'S
           INEFFECTIVENESS.

           THE TRIAL COURT ERRED IN EFFECTIVELY PLACING
           A RETROACTIVE AFFIRMATIVE OBLIGATION ON MR.
           BHAGAT TO HAVE ANSWERED YES OR NO QUESTIONS
           WITH FREE-FORM ANSWERS DURING HIS PLEA
           COLLOQUY.

           THE   TRIAL   COURT   IMPROPERLY  CONSIDERED
           STATEMENTS AT THE TIME OF SENTENCING AS A
           REFLECTION OF KNOWLEDGE AND UNDERSTANDING AT
           THE TIME OF THE PLEA.

1
    Strickland v. Washington, 
466 U.S. 668 (1984).
2
    Padilla v. Kentucky, 
559 U.S. 356 (2010).

                                 6                           A-2638-16T2
          THE   TRIAL  COURT   ERRED            IN        MAKING    ITS
          CREDIBILITY FINDINGS.

                    The Trial Court failed to give sufficient
                    weight to the filing of the immigration
                    petition.

                    The Trial Court failed to consider that
                    prior to hiring [plea counsel], Mr.
                    Bhagat was preparing to go to trial.

     To prevail on a claim of ineffective assistance of counsel,

defendant must meet the two-prong Strickland test: he must show

that (l) counsel's performance was deficient and he made errors

that were so egregious counsel was not functioning effectively as

guaranteed     by    the    Sixth   Amendment        to    the     United    States

Constitution; and (2) "there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding

would have been different."         Strickland, 
466 U.S.  at 687; State

v. Fritz, 
105 N.J. 42, 52 (1987).

     Under the first prong, "counsel is strongly presumed to have

rendered adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment."                 Strickland,


466 U.S.  at 690.       We must determine whether the acts or omissions

of counsel "were outside the wide range of professionally competent

assistance."        Ibid.    Adequate assistance of counsel must be

measured by a standard of "reasonable competence."                 State v. Jack,


144 N.J. 240, 248 (1996) (citing Fritz, 
105 N.J. at 53).

                                      7                                     A-2638-16T2
     Under the second prong of Strickland, defendant must prove

prejudice.    Fritz, 
105 N.J. at 52.            He must show a "reasonable

probability" that counsel's deficient performance affected the

outcome of the proceeding.              Strickland, 
466 U.S.  at 694.               A

reasonable probability is defined as "a probability sufficient to

undermine confidence in the outcome."            Ibid.

     We review a PCR petition with deference to the trial court's

factual    findings.   State       v.   Nash,   
212 N.J.    518,   540    (2013)

(citations omitted).       We "give deference to those findings of the

trial judge which are substantially influenced by his opportunity

to hear and see the witnesses and to have the 'feel' of the case,

which a reviewing court cannot enjoy."            State v. Elders, 
192 N.J.
 224, 244 (2007) (quoting State v. Johnson, 
42 N.J. 146, 161

(1964)).     However, all legal conclusions are reviewed de novo.

State v. Harris, 
181 N.J. 391, 415-16 (2004) (citing Toll Bros.

v. Twp. of W. Windsor, 
173 N.J. 502, 549 (2002)).

     Defendant    argues    plea    counsel     did   not    provide   effective

assistance of counsel because, under Padilla, 
559 U.S.  at 356, he

should have advised defendant he would be mandatorily deported

after pleading guilty.        In Padilla, the United States Supreme

Court held counsel has an affirmative duty to inform a criminal

defendant of the immigration consequences of a guilty plea.                     
559 U.S.  at 368-69.    The Court held when deportation is "truly clear

                                         8                                 A-2638-16T2
. . ., the duty to give correct advice is equally clear."           Id. at

369. We have said 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, 
559 U.S. at 369).        We note Padilla was

issued by the Supreme Court of the United States on March 31,

2010, two weeks prior to the entry of defendant's guilty plea.

      There is no question that pursuant to the Immigration and

Nationality      Act   (INA)3   defendant   was   subject   to   mandatory



3 Under 8 U.S.C. § 1227,

           Any alien . . . in and admitted to the United
           States shall, upon the order of the Attorney
           General, be removed if the alien is within one
           or more of the following classes of deportable
           aliens:

                  . . . .

           (2)    Criminal offenses.

           (A)    General crimes.

                  . . . .

           (iii) Aggravated felony. Any alien who is
           convicted of an aggravated felony at any time
           after admission is deportable.

                  . . . .

           (B)    Controlled substances.



                                     9                             A-2638-16T2
deportation for the charged offenses.      The statutory definition

of aggravated felony in the INA includes "illicit trafficking in

a controlled substance. . . ."       8 U.S.C. § 1101(a)(43)(B).    As

such, by pleading guilty to two counts of possession of CDS with

the intent to distribute, defendant was subject to mandatory

deportation.

     Plea counsel concedes he never gave defendant any immigration

advice. This omission satisfies the first prong of Strickland.

Padilla, 
559 U.S.  at 371 ("It is quintessentially the duty of

counsel to provide her client with available advice about an issue

like deportation, and the failure to do so clearly satisfies the

first prong of the Strickland analysis.") (citation omitted).

     Moving to the second prong of Strickland, we consider whether

defendant was prejudiced by counsel's error.      In the context of

guilty pleas, this prong is satisfied when "defendant demonstrates

that he would not have pled guilty if he had been provided with

accurate information . . . ."   State v. Gaitan, 
209 N.J. 339, 351

(2012) (citing State v. Nunez-Valdez, 
200 N.J. 129, 131 (2009)).




          (i) Conviction. Any alien who at any time
          after admission has been convicted of a
          violation of . . . any law or regulation of a
          State, the United States, or a foreign country
          relating to a controlled substance . . . .

                                10                          A-2638-16T2
     Defendant argues he would not have pled guilty if he knew he

would be mandatorily deported.            The trial judge did not find

defendant credible on this contention.             There is sufficient,

credible evidence in the record to support the judge's credibility

determination.        At the plea hearing, defendant and his lawyer

reviewed the plea form that indicated a likelihood of deportation.

During the plea colloquy, the prosecutor told defendant he would

likely be deported.      The plea judge was less equivocal, explaining

that pleading guilty would subject him to deportation, which

defendant acknowledged.         At no point did defendant raise any

questions or request to discuss anything further with his attorney.

In fact, defendant indicated he was satisfied with his counsel's

performance.

     Thereafter, during sentencing, defendant's sentencing lawyer

stated defendant had decided to forgo a motion to withdraw his

guilty   plea   and    that   defendant   "is   going   to   be   deported."

Defendant could have explored withdrawing his guilty plea if his

main concern truly was deportation.         However, as the trial court

found, defendant's primary concern was to reduce his prison time.

Accordingly, we do not find the trial judge erred finding defendant

did not satisfy the second prong of Strickland.

     Defendant's other arguments are without sufficient merit to

warrant discussion in a written opinion.         R. 2:11-3(e)(2).

                                    11                               A-2638-16T2
Affirmed.




            12   A-2638-16T2