Opinion
DOCKET NO. A-0217-14T3
08-11-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PRINCE ANDREW HENRY, a/k/a HENRY PRINCE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, 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).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Koblitz. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 10-12-1236 and 09-09-1087. Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, 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 Prince Andrew Henry appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.
On January 4, 2010, defendant pled guilty pursuant to a negotiated agreement with the State to count one of Passaic County Indictment 09-09-1087, which charged him with third degree possession of cocaine, N.J.S.A. 2C:35-10a(1), and count two of Passaic County Indictment 09-04-0523, which charged him with fourth degree criminal mischief, N.J.S.A. 2C:17-3a(1). The State agreed to recommend the court sentence defendant to a term of three years, to run concurrent to any term imposed for violating the probationary sentence defendant was then serving.
The trial judge questioned defendant directly at the plea hearing to ensure he was knowingly and voluntarily pleading guilty, had sufficient time to discuss the matter with his attorney, and, with his attorney's assistance, reviewed and truthfully answered all of the questions on the plea form. The judge also placed on the record that he had discussed the terms of the plea agreement with the attorneys and confirmed that the State did not have a "strong objection" if the court were to sentence defendant to a term of probation conditioned on serving 364 days in the county jail.
Question 17 of the plea form asked defendant: "Are you a citizen of the United States?" Defendant circled, "Yes." Furthermore, immediately before she began questioning defendant to establish a factual basis for his guilty plea to third degree possession of cocaine, defense counsel asked defendant: "And you are a U.S. citizen, is that right?" Defendant answered, "Yes."
On March 17, 2010, the judge sentenced defendant to a three-year term of probation, and credited him with serving eighty-seven days in the county jail. The sentencing judge found the aggravating and mitigating factors were "about equal;" he specifically found aggravating factors 3, 6, and 9 under N.J.S.A. 2C:44-1(a), and mitigating factors 10 and 11 under N.J.S.A. 2C:44-1(b). The judge also viewed defendant's employment status as a non-statutory mitigating factor in favor of leniency.
On December 14, 2010, a Passaic County Grand Jury indicted defendant for one count of second degree kidnapping, N.J.S.A. 2C:13-1b(2). The indictment alleged defendant committed this crime on July 4, 2010, less than four months after he was sentenced. On May 16, 2011, defendant pled guilty, pursuant to a negotiated agreement, to third degree criminal restraint, N.J.S.A. 2C:13-2a, as a lesser included offense of second degree kidnapping. The victim of this crime was defendant's paramour with whom he had two children. The State agreed to recommend defendant be sentenced to a four-year term of imprisonment. Once again, the guilty plea constituted a violation of probation. On June 10, 2011, the court sentenced defendant to an aggregate term of three years imprisonment.
Defendant again answered "yes" to question 17 in the plea form, which asked him whether he was a citizen of the United States. The Presentence Investigation Report prepared by the probation department, pursuant to N.J.S.A. 2C:44-6 and Rule 3:21-2, indicates defendant was born in Paterson, New Jersey.
Defendant was first placed on probation in the Superior Court on October 4, 2006, after pleading guilty to third degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1). This probationary term ended "with improvement" on April 3, 2009, after defendant pled guilty to fourth degree resisting arrest, N.J.S.A. 2C:29-1(a)(2). The court sentenced him to two years of probation for his offense, with sixty days of jail time credit in the county jail.
We affirmed the sentence imposed by the trial court as part of the summary process provided pursuant to Rule 2:9-11, and remanded for the court to determine the number of jail time credits defendant was entitled to receive considering all three pleas. State v. Henry, No. A-0695-11 (App. Div. June 29, 2012). On March 28, 2013, defendant filed a pro se PCR petition claiming ineffective assistance of trial counsel. Within the PCR petition, defendant disclosed for the first time that Immigration and Customs Enforcement (ICE) had filed a detainer in connection with his convictions for possession of cocaine and intended to deport him to Jamaica, the country of his birth.
Defendant denoted the petition as a "Motion to Revise and Revoke Pursuant to Rule 3:22."
In an amended PCR petition prepared by court-appointed counsel, defendant claimed the first time he discovered he was born in Jamaica was when ICE filed the detainer and began deportation proceedings. Defendant concluded his amended PCR petition with the following assertion:
Had petitioner known he was not born in Paterson, New Jersey, that he was not a citizen of the United States, and as such, he would be subject to deportation as a result of his convictions before he entered his guilty pleas, he would not have done so and would have asserted his right to trial.
Although the PCR judge initially viewed defendant's application as a motion to withdraw his guilty pleas, the judge eventually concluded defendant had filed a petition seeking PCR. After conducting an evidentiary hearing, which included defendant's telephonic testimony, the PCR judge denied defendant's petition. The judge found defendant did not establish his counsel was ineffective.
Defendant now appeals raising the following argument:
POINT ONE
THE PCR COURT ERRED IN FAILING TO GRANT MR. HENRY'S MOTION TO WITHDRAW HIS PLEA; IN THE ALTERNATIVE, THE MATTER MUST BE REMANDED BECAUSE THE PCR COURT ERRED IN FAILING TO APPLY THE PROPER STANDARD WHEN DENYING MR. HENRY'S MOTION TO WITHDRAW HIS PLEA.
We disagree and affirm substantially based on the ruling made by the PCR judge. By the time this matter came before the PCR court on April 25, 2014, defendant had been deported to Jamaica. The court nevertheless conducted a hearing with counsel present in the courtroom and defendant participating via telephone. Under these circumstances, the record merely indicates that defendant was "sworn." There is no evidence the court made any findings concerning the origination of the call to verify the identity of the caller as defendant. Thus, from this record, there is no indication the judge made any effort to comply with the Aqua Marine test, as sanctioned by our Supreme Court in State v. Santos, 210 N.J. 129 (2012), which is comprised of two parts.
Aqua Marine Prods., Inc. v. Pathe Comput. Control Sys. Corp., 229 N.J. Super. 264 (App. Div. 1988). --------
First, the court must determine whether the opposing party has consented to the testimony or whether there is a "special circumstance," also referred to as an "exigency," "compelling the taking of telephone testimony." Second, the court must be satisfied that "the witness' identity and credentials are known quantities" and that there is some "circumstantial voucher of the integrity of the testimony."
[Santos, supra, 210 N.J. at 141 (emphasis added) (citations omitted) (quoting Aqua Marine Prods., Inc., supra, 229 N.J. Super. at 275).]
In Santos, the Court emphasized the second part of the test "poses substantial practical and logistical hurdles that an applicant seeking leave to present telephonic testimony must satisfy in order [to] meet the test's demand for preservation of the essential integrity of the testimony." Id. at 142. The record here shows the PCR court's decision to permit defendant to testify telephonically failed to address the second part of the Aqua Marine test the Court approved in Santos.
However, the PCR court's error in this respect is legally inconsequential because defendant did not come forward with any evidence to substantiate the central basis for his claim for relief, that he was not aware of his immigration status until ICE began deportation proceedings against him. As the State points out, defendant's record of multiple juvenile delinquency adjudications show repeated entries disclosing Jamaica as his country of origin and place of birth.
The standard for relief for a petitioner seeking PCR is well-known and long-established. We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense "counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he or she must show there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. In determining a claim of ineffective assistance of counsel in a case in which a defendant pled guilty, "the issue is whether it is ineffective assistance of counsel for counsel to provide misleading, material information that results in an uninformed plea, and whether that occurred here." State v. Nuñez-Valdéz, 200 N.J. 129, 139-40 (2009).
As the PCR judge correctly found, if defendant did not apprise his attorney of his immigration status at the time of plea negotiations, defense counsel cannot be held deficient for not advising defendant of the potential immigration ramifications of his conviction. Based on the record before us, we are satisfied defendant knew or should have known his immigration status at the time he answered "yes" to question 17 of the plea forms, certifying under oath that he was a citizen of the United States. Defendant cannot hold his lawyer responsible for his misrepresentations nor can he expect his lawyer to be omniscient about the details of his personal life.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION