Opinion
DOCKET NO. A-2930-10T1
01-25-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KHALED ABDELREHIM, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sabatino.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 96-07-0259.
Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
This post-conviction relief ("PCR") matter involves defendant Khaled Abdelrehim, a foreign national who was previously living as a lawful resident in the United States. After entering into a plea agreement in 1997 for one drug offense and multiple theft-related offenses, defendant was sentenced to three years of probation. He subsequently violated the terms of his probation and was sentenced to three years of custody.
Defendant filed his first PCR petition in 2002, alleging that he had received ineffective assistance of counsel and was deprived of his rights under the Vienna Convention. The arguments on that initial petition, which the trial court ultimately rejected, occurred while defendant was being detained by federal authorities. While the appeal of his PCR denial was pending, defendant was deported. This court then dismissed his appeal in 2005, declaring the petition moot because he had been deported.
In August 2010, defendant filed his second PCR petition. Allegedly, he had not become aware of the dismissal of his earlier appeal because he had been imprisoned in Egypt until March 2010. The trial court dismissed his second petition on the papers, relying on this court's earlier mootness determination.
For the reasons that follow, we remand this matter to the trial court for an evidentiary hearing on the discrete question of whether defendant's plea counsel affirmatively misled him about whether his guilty plea could subject him to deportation consequences.
I.
Defendant is an Egyptian national who began residing in the United States in 1987. He is married and has two children, both of whom are United States citizens. Prior to the legal proceedings that ultimately led to his deportation, appellant was a lawful permanent resident, working at a restaurant in Somerville.
In July 1996, defendant was charged with one count of third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). Defendant subsequently applied for entry into Somerset County's Pretrial Intervention ("PTI") Program and was admitted in September 1996. However, defendant failed to comply with the conditions of the agreement and was terminated from the PTI program in April 1997.
In October 1997 defendant was charged with burglary; three counts of theft by deception; two counts of fraudulent use of a credit card; and theft of a credit card. Defendant, who was represented by a criminal defense attorney ("plea counsel"), eventually entered into a plea agreement. On November 19, 1997, he pled guilty to third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1); third-degree burglary, N.J.S.A. 2C:18-2; third-degree theft by deception, N.J.S.A. 2C:20-4; fourth-degree theft of a credit card, N.J.S.A. 2C:21-6(c)(1); and the disorderly persons offense of theft by deception, N.J.S.A. 2C:20-4. His conviction of the cocaine offense was entered the same day.
Defendant was consequently sentenced in March 1998 to three years of probation and various fines. However, he did not complete his probation successfully, and in May 1999 he was charged with four counts of violation of probation ("VOP"), including additional theft-related offenses. On May 3, 2001, defendant pled guilty to the VOP charges. The trial court revoked defendant's probationary sentence and resentenced him to an aggregate three-year term of incarceration.
In May 2002, defendant filed his first PCR petition, seeking relief from his conviction and his ongoing incarceration. In support of his petition, defendant maintained that his plea counsel was constitutionally ineffective. He also contended that he had been deprived of his rights under the Vienna Convention.
Following oral argument, the trial court issued a bench opinion on August 6, 2003 denying defendant's petition. The court concluded that defendant's former counsel had acted in defendant's best interests by initially negotiating a plea agreement that granted defendant probation and, thereafter, when that probation was violated, sparing defendant consecutive terms of incarceration.
Defendant appealed the denial of his first PCR petition. While that appeal was pending, he was deported to Egypt. Upon being advised of the deportation, this court declared defendant's PCR application moot and did not analyze the merits of his contentions. State v. Abdelrehim, No. A-2683-03 (App. Div. May 31, 2005).
After being released from prison in Egypt but remaining in that country, defendant filed a second PCR petition with the trial court in August 2010. On September 20, 2010, the trial court issued an order, without conducting oral argument, denying the second petition because this court had already declared defendant's first petition moot. This appeal followed, in which defendant contends:
POINT ONEAdditionally, defendant submits the following points in a pro se supplemental brief:
THE FIRST APPELLATE COUNSEL WAS INEFFECTIVE IN NOT REQUESTING A RECONSIDERATION OF THE DISMISSAL OF THE FIRST APPEAL, OR ALTERNATIVELY IN NOT FILING A PETITION FOR CERTIFICATION TO THE STATE SUPREME COURT, INEFFECTIVE IN NOT COMMUNICATING WITH APPELLANT, AND INEFFECTIVE IN NOT RAISING OTHER MERITORIOUS CLAIMS.
A. Appellate counsel was ineffective in not pursuing a motion for reconsideration or alternatively a
Petition for Certification because the first PCR court committed error by denying the PCR petition without granting an evidentiary hearing although Appellant met his burden by a preponderance of the evidence on the issue of the deportation question.
B. Appellate counsel was ineffective because he did not communicate with the Appellant after the dismissal of the appeal.
C. Appellate counsel was ineffective in not raising on appeal the claim that the first PCR court committed error by denying the Appellant's motion to expand the record and reconsider the petition for PCR.
D. Appellate counsel was ineffective in not raising in the appeal the claim that the trial court committed error by not granting the Appellant's petition on the issue of trial counsel's conflict of interest.
E. Appellate counsel was ineffective in not raising in the appeal the claim that the first PCR court committed error by not granting Appellant's petition on the issue of trial counsel's failure to challenge the weight of the alleged controlled dangerous substance contained in the laboratory report, on the issue of ineffective assistance of counsel during the violation of probation; and on the issue of the Appellant not being informed of his rights under the Vienna Convention.
F. Appellate counsel was ineffective in not raising the cumulative errors of the first PCR trial court as grounds
for the Appellate Court to grant the Appellant's relief.
POINT TWO
THE 2010 PCR COURT COMMITTED ERROR BY DENYING THE PETITION ON THE PAPERS WITHOUT A HEARING BECAUSE THE APPELLANT IS ENTITLED TO A HEARING DUE TO THE CONFLICT BETWEEN THE
N.J. SUPREME COURT HOLDING IN GAITAN AND THE THIRD CIRCUIT COURT OF APPEALS HOLDING IN UNITED STATES V. OROCIO.
POINT THREE
THE 2010 PCR COURT COMMITTED ERROR WHEN THE COURT DENIED APPELLANT'S SECOND PETITION FOR POST CONVICTION RELIEF AS MOOT WITHOUT A HEARING.
POINT FOUR
ON REMAND THIS PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE PROCEDURALLY BARRED BY R. 3:22-4 OR R. 3:22-5.
POINT ONE
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL FOR THE FIRST PCR BECAUSE APPELLANT'S PCR WAS NOT MOOT BY HIS DEPORTATION.
POINT TWO
THE PCR COURT ERRED WHEN DENIED [sic] APPELLANT'S SECOND PCR BECAUSE THE DECISION DOES NOT EXPLAIN THE LEGAL REASONS FOR IT, BASED ON "FINDINGS OF FACT AND CONCLUSIONS OF LAW."
POINT THREE
INTEREST OF JUSTICE DEMANDS THE FIRST PCR APPEAL REINSTATED AND GRANTED, IN THE ALTERNATIVE, THE SECOND PCR SHOULD BE REMANDED FOR EVIDENTIARY HEARING WITH INSTRUCTION NOT TO BE DISMISSED ON PROCEDURAL GROUNDS.
II.
As a preliminary matter, we consider the State's contention that defendant's present PCR petition is time-barred under Rule 3:22-12 because it was not filed within five years of his conviction and the 2001 resentencing. The State also contends that defendant's claims are barred by Rule 3:22-5 because they were substantially raised in his first PCR petition. We reject those procedural contentions.
Rule 3:22-12, as amended in 2010, provides that unless an enumerated exception applies, a first PCR petition is to be filed within five years after the date of the entry of the defendant's conviction. R. 3:22-12(a)(1). The rule further provides that a second or subsequent PCR petition shall be filed within one year of various specified events, including "the date on which the factual predicate for the relief sought was discovered, if that factual predicate could not have been discovered earlier through the exercise of reasonable diligence[.]" R. 3:22-12(a)(2)(B).
As we have noted, defendant filed his second PCR petition in August 2010, which is more than five years after his 1998 judgment of conviction and his subsequent 2001 resentencing. Defendant explains that he did not file his second petition sooner because he was deported and confined in an Egyptian prison until March 2010. He asserts that he was not aware until his March 2010 release that his direct appeal of the first PCR disposition had been denied by this court in 2005 on mootness grounds. He contends that his first appellate counsel was ineffective in failing to advise him of the appeal's outcome and in failing to pursue Supreme Court review of the mootness ruling. He further asserts, in an uncontested certification, that "immediately" after his release from the Egyptian prison, he "reached out to [his] PCR counsel and the Office of the Public Defender to seek legal help."
Rather than remanding those issues of timeliness and excusable neglect to the trial court for its consideration, we shall resolve them ourselves in the interests of expediency. See R. 2:10-5. Given our determination, infra, that defendant's first appeal should not, in retrospect, have been dismissed on mootness grounds, and the presence of bona fide constitutional questions about flawed deportation-related advice allegedly furnished by defendant's plea counsel, we conclude that the time bar of Rule 3:22-12 should be relaxed in this distinctive setting. See State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.) (noting the "delicate[] balance" involved in weighing the State's interests against the PCR applicant's interest in proceeding on a petition for relief), certif. denied, 162 N.J. 199 (1999).
We likewise do not regard Rule 3:22-5 as an appropriate bar to consideration of defendant's second PCR petition on its merits. Because the first appeal was disposed of on mootness grounds, it was never actually decided on the merits. Rule 3:22-5 requires that an issue have been previously adjudicated "upon the merits" in order to be conclusive in a future PCR proceeding. Ibid. Moreover, this provision is also subject to relaxation where a defendant has raised constitutional issues of a substantial nature. See State v. Johns, 111 N.J. Super. 574, 576 (App. Div. 1970), certif. denied, 60 N.J. 467, cert. denied, 409 U.S. 1026, 93 S. Ct. 473, 34 L. Ed. 2d 319 (1972).
The only remaining impediment to our review of the merits of defendant's second petition is this court's earlier determination that defendant's request for relief is moot because he has been deported. On further reflection, and with the benefit of defense counsel's present briefing on the mootness issue, we choose to revisit that question, particularly in light of the factual development that defendant has now been released from incarceration abroad.
We note that the mootness issue may not have been briefed for the panel in 2005, as his deportation occurred while that appeal was already pending.
We reject the State's invitation to maintain this court's 2005 mootness determination as "the law of the case." That doctrine may be relaxed where an earlier determination could produce "manifest injustice." See State v. Reldan, 100 N.J. 187, 205-09 (1985) (noting that the "law of the case" principle is discretionary and "must . . . take into account fairness to the defendant"). This court retains the authority to reconsider one of its earlier rulings in the same litigation, especially where, as here, the issue apparently was not the subject of prior briefing and where the factual posture has changed.
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An issue has become moot "when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." N.Y Susq. & W. Ry. Corp. v. State Dep't of Treas., Div. of Tax'n, 6 N.J. Tax 575, 582 (Tax Ct. 1984) (emphasis added), aff'd, 204 N.J. Super. 630 (App. Div. 1985). The doctrine of mootness emanates from the judiciary's unique institutional role as a branch of government that only acts when a genuine dispute is placed before it. We generally do not render advisory decisions. See De Vesa v. Dorsey, 134 N.J. 420, 428 (1993); see also Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996).
Now that defendant has been released from prison abroad, we reject the notion that a hypothetical grant of his second PCR petition would have "no practical effect." Cf. N.Y. Susq., supra, 6 N.J. Tax at 582. Defendant was lawfully residing and working in the United States at the time of his conviction. His family members still apparently reside here. If, for the sake of discussion, his PCR application claiming that he was given erroneous advice by his former plea counsel about deportation consequences were successful and his convictions were vacated, he might then seek re-entry into the United States unencumbered by the negative implications formerly carried by the convictions.
Two illustrative cases from our Supreme Court involving PCR petitions by deported defendants suggest that such matters are not categorically treated as moot. In State v. Nuñez-Valdez, 200 N.J. 129 (2009), the defendant entered into a plea agreement which supported a conviction that ultimately led to his deportation. Id. at 131. That defendant subsequently filed a PCR petition, which was nevertheless considered on its merits, despite his deported status. Id. at 137-43. Similarly, in State v. Gaitan, 209 N.J. 339 (2012), defendant Gaitan had already been removed from the United States but the Court went on to consider the merits of his PCR appeal. Id. at 347, 374-76.
Having set aside the mootness question, we now turn to the substance of defendant's arguments. Although he has raised various issues, the only one that has potential merit is his contention that his plea counsel in 1997 deprived him of the effective assistance of counsel because counsel allegedly gave him incorrect advice about whether his guilty plea and convictions could lead to his deportation.
Defendant has specifically alleged in an affidavit that his plea counsel affirmatively told him that he would "not get deported if [he] pled guilty" to the State's charges under the negotiated terms of the plea. He contends that plea counsel met with him on the day that the plea was entered and specifically "assur[ed] [him] that accepting the plea would not have rendered [i]mmigration consequences to [his] status[.]" Defendant further maintains that plea counsel was "fully aware" that he was not a United States citizen.
Plea counsel has contended in an affidavit that defendant never informed him that he was not a United States citizen. Question 17 of the written plea agreement that defendant entered into in 1997, utilizing a form that has since been revised, was circled "N/A" (signifying "not applicable") on the specific question relating to his awareness of potential deportation consequences. On the other hand, defendant's arrest report, which presumably was part of the pretrial discovery materials furnished to plea counsel, specifically identifies defendant as not being a United States citizen. Moreover, defendant's PCR attorney represented to the trial court that she had a conversation with plea counsel, in which he expressed "surprise" that defendant had problems with immigration authorities "because [defendant] had a green card." The PCR attorney argued that plea counsel's stated belief that defendant had a green card was, contrary to his affidavit, indicative of his awareness that defendant was not, in fact, a United States citizen.
These factual conflicts about what plea counsel actually knew about defendant's citizenship status, and what advice, if any, he actually gave to defendant about potential deportation consequences of a plea, are best resolved through an evidentiary hearing. At such an evidentiary hearing, the trial court can make a more informed assessment of the credibility of the witnesses. See, e.g., State v. Santos, 210 N.J. 129, 138-39 (2012) (noting a criminal factfinder's "all-important function of observing the demeanor and evaluating the credibility of each witness that comes before the court"); see also Gaitan, supra, 209 N.J. at 381 (noting the potential necessity of an evidentiary hearing to resolve "competing affidavits" between a client and counsel about deportation-related advice that counsel may have provided). A hearing would also provide plea counsel with an opportunity to reconsider his recollections about defendant's citizenship in light of the contrary information on the arrest report and his conversation with defendant's previous PCR attorney. If feasible, the evidentiary hearing may be accomplished with defendant appearing through videoconference or some other equivalent medium, provided that the evidential integrity requirements of Santos, supra, 210 N.J. at 140-43, for such remote testimony are fulfilled.
As a matter of law, defendant's claim that his plea counsel affirmatively misrepresented to him that he would not be deported, if found to be true, could provide crucial support for a finding of a deprivation of his right to the effective assistance of counsel under the Sixth Amendment of the United States Constitution. Although the New Jersey Supreme Court has not applied the United States Supreme Court's seminal holding in Padilla v. Kentucky, 559 U.S. __, __, 130 S. Ct. 1473, 1486, 176 L. Ed. 2d 284, 299 (2010) (imposing an affirmative duty upon criminal defense attorneys to advise their clients about certain adverse immigration consequences) retroactively to cases on collateral review in this State, our Court has recognized that, even prior to Padilla, criminal defense lawyers in our jurisdiction must not give misleading advice to their clients about such consequences. See Gaitan, supra, 209 N.J. at 349-74; see also State v. Nuñez-Valdez, 200 N.J. 129, 140-42 (2009).
Specifically, in Nuñez-Valdez, supra, when a criminal attorney provided false advice assuring that deportation would not flow from defendant's guilty plea, the Court held that misadvice could be sufficiently material to a non-citizen defendant to comprise the ineffective assistance of counsel in violation of the Constitution. 200 N.J. at 140-43. These principles recognizing a potential constitutional remedy for incorrect legal advice have long been embedded in our law, even before the present defendant's guilty plea in 1997. See, e.g., State v. Chung, 210 N.J. Super. 427, 434-35 (App. Div. 1986) (distinguishing, under the law as it then was understood, between circumstances where defense counsel affirmatively supplied erroneous "misinformation" to a client about the deportation consequences of a guilty plea, and circumstances in which counsel was faulted by defendant for supplying no advice on the subject at all); see also Nuñez-Valdez, supra, 200 N.J. at 137-43 (tracing the development of the law on this issue).
Even if, hypothetically, the trial court finds credible defendant's contention that his plea counsel did, in fact, know that he was not an American citizen and specifically misadvised him that he could not be deported as a consequence of his guilty plea, that still leaves open the question of whether 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.'" Nuñez-Valdez, supra, 200 N.J. at 142 (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). This question also involves a host of intangible considerations, and undeveloped facts, which are best reserved for the evidentiary hearing on remand.
The remainder of defendant's contentions, including but not limited to his claims of a violation of his rights under the Vienna Convention and his contention that he was actually prejudiced because of an alleged conflict of interest by his plea counsel, lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
Affirmed in part and remanded in part. We do not retain jurisdiction. The evidentiary hearing we have ordered shall be completed no later than May 31, 2013.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION