Opinion
DOCKET NO. A-1939-11T3
04-30-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KWASI OWUSU, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fasciale and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-02-0537.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Brian Pollock, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Kwasi Owusu appeals the Law Division order of March 25, 2011, denying him post-conviction relief (PCR). We affirm.
At the time of the plea, defendant had been a legal resident of the United States for approximately ten years. He is a native of Ghana, West Africa.
On February 20, 2008, defendant entered a guilty plea to third-degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5(b).
At the plea hearing, defense counsel presented the plea form, in which defendant answered "Yes" to Question No. 17. Defense counsel informed the court, in his client's presence, that he had a "detailed conversation with defendant about his immigration status." Specifically, he related that because defendant had a prior eluding conviction, any conviction in this case would likely impact his immigration status and subject him to deportation proceedings. Counsel emphasized that it was significant for defendant to understand all of the ramifications as he makes a decision. Counsel then advised that after speaking with an immigration attorney, he is 99.9% certain that there are immigration consequences associated with any felony conviction.
After counsel consulted with defendant, the court questioned defendant regarding his responses on the plea form. Among other things, defendant testified, under oath, that he understood the plea agreement; he understood he was waiving all of his rights by pleading guilty; he was not threatened, coerced or promised anything to induce him to plead guilty; and he was not under the influence of any medication, drugs or alcohol that would impair his understanding of the plea. Regarding the immigration consequences, the court and defendant engaged in the following colloquy:
Q. Now, you've also discussed the immigration consequences of your plea with [defense counsel], correct?
A. Yes, Your Honor.
Q. And, as I understand it, you have a permanent resident card, correct?
A. Yes, Your Honor.
Q. And, you know, we discussed the fact that a conviction may impact that in the future, you understand that, correct?
A. Yes.
Q. You're willing to proceed with this plea knowing that, correct?
A. Yes, Your Honor.
The judge then accepted the factual basis for the guilty plea. On April 25, 2008, defendant was sentenced to a three-year term of noncustodial probation. Defendant did not file an appeal.
On or about August 12, 2010, defendant filed a pro se PCR petition, supplemented by a brief submitted by assigned counsel, alleging that plea counsel rendered ineffective assistance by either failing to discuss the immigration consequences of the guilty plea or rendering incorrect advice. The PCR judge denied the petition. This appeal followed.
On appeal, defendant argues:
I. THE PCR COURT ERRED IN RULING THAT THE FAILURE OF TRIAL COUNSEL TO ADVISE [DEFENDANT] THAT DEPORTATION WAS A MANDATORY CONSEQUENCE OF HIS PLEA DID NOT DEPRIVE [DEFENDANT] OF HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
II. THE PCR COURT ERRED WHEN IT DENIED [DEFENDANT'S] PETITION WITHOUT HOLDING AN EVIDENTIARY HEARING.
The general standards by which a defendant must prove ineffective assistance of counsel are familiar, and we will not repeat them here. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Loftin, 191 N.J. 172, 198 (2007); State v. Fritz, 105 N.J. 42, 52 (1987). The United States Supreme Court has extended these principles to the representation provided by a criminal defense attorney to an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ____, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. __________, __________, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Defendant argues that the first prong of the Strickland test was not met because counsel's advice was misleading, as he related to defendant that there was only a likelihood of deportation rather than a "virtual certainty." The State contends that defense counsel properly performed his duties and there is nothing in the colloquies to indicate that counsel provided false or misleading advice.
Upon a careful review of the case law prior to Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) and its progeny, we conclude that defendant's claims have no merit. We begin by briefly reciting the development of the law pertaining to counsel's obligation to render effective assistance of counsel to non-citizens.
In State v. Nuñez-Valdéz, 200 N.J. 129, 143 (2009), our Supreme Court held that a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from "inaccurate information from counsel concerning the deportation consequences of his plea." The Court focused on "false or misleading information" from counsel as establishing the violation of the defendant's constitutional rights. Id. at 138.
Later, in Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1486, 176 L. Ed. 2d at 299, the United States Supreme Court held that an attorney's failure to advise a non-citizen client about the immigration risks attendant on pleading guilty constituted ineffective assistance of counsel. By extending counsel's duty beyond rendering incorrect advice, the Court declared that counsel has an affirmative duty to inform a defendant when a guilty plea will result in deportation, at least where the relevant law pertaining to mandatory deportation is "succinct, clear, and explicit." Id. at ___, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295.
We examine defendant's arguments in light of Padilla and conclude that defendant's reliance on its applicability is misplaced. Defendant entered his guilty plea in April 2008 before Padilla was decided. The less-stringent standard espoused in Nuñez-Valdéz is not applicable for the same reason. Consequently, neither duty of attorney conduct established in Padilla or Nuñez-Valdéz apply in this case. Rather, defendant remains bound by "precedent existing at the time the . . . conviction became final." Gaitan, supra, 209 N.J. at 372 (citations and internal quotation marks omitted).
In State v. Gaitan, 209 N.J. 339, 372 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013), our Supreme Court held that "Padilla is not entitled to retroactive application" on collateral review. Recently, in Chaidez v. United States, ___ U.S. ___, ___, 133 S. Ct. 1103, 1105, 185 L. Ed. 2d 149, 154 (2013), the United States Supreme Court reached the same result.
The prevailing law in April 2008 categorized deportation as a collateral consequence of a guilty plea as to which there was no duty imposed on either the court or counsel to inform defendants. Id. at 372—73; see State v. Heitzman, 107 N.J. 603, 604 (1987) ("[D]efendant need be informed only of the penal consequences of his plea and not the collateral consequences, such as loss of public or private employment, effect on immigration status, voting rights, possible auto license suspension, possible dishonorable discharge from the military, or anything else."); see also State v. Chung, 210 N.J. Super. 427, 433 (App. Div. 1986) (concluding that "it is not the present responsibility of a New Jersey judge to advise a defendant of federal deportation consequences at the time of the taking of the guilty plea"). In light of the foregoing, we conclude that the advice defense counsel provided was more than adequate to satisfy the duty owed to his client at that time.
First, we discern that there can be no dispute that defendant was aware of the immigration consequences, as his counsel and the court addressed defendant at the plea hearing and discussed the consequences with him. Counsel stated that he was 99.9% certain that defendant would be deported. Thus, even absent an obligation to render such discrete advice, the record reflects the extent to which counsel informed himself and defendant of the likely impact of the plea. Counsel consulted with an immigration attorney, had a discussion with the court, had an extensive colloquy with defendant on the record, and conferenced with him on the matter again before entering the plea. The Court in Padilla deemed such conduct sufficient in many cases. See Padilla, supra, 559 U.S. at ___, ___ & n.15, 130 S. Ct. at 1483, 1486 & n.15, 176 L. Ed. 2d at 296, 298-99 & n.15 (where notice of "possible deportation" by counsel and "possible immigration consequences" in the plea form have been considered acceptable to advise a defendant of the consequences of a guilty plea); see also State v. Brewster, 429 N.J. Super. 387, 397 (App. Div. 2013).
Defendant has not shown this advice deviated from the "prevailing professional norms" for a criminal defense attorney. Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1482, 176 L. Ed. 2d at 294 (citing Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).
Furthermore, at the time of defendant's plea, Question 17 on the plea form asked: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your guilty plea?" Administrative Office of the Courts, Directive # 1-1988 (Jan. 15, 1988). Defendant answered "Yes" and also acknowledged, under oath, the truthfulness of his answer and to his explicit understanding that he could be deported.
Our Supreme Court in Gaitan, supra, 209 N.J. at 362-63, reasoned:
The question remained in that form throughout the changes in immigration law during the 1990s and early years of the new millennium that incrementally removed discretion from the system and tilted more and more toward compelling deportation. Eventually, the plea form question was broken into two parts -- first asking if the defendant was a citizen and, if the response was no, then asking whether the defendant understood that he "may be deported by virtue of [his] plea of guilty." Administrative [Office of the Courts,] Directive # 14-08 (Oct. 8, 2008), available at http://www.judiciary.state.nj.us/directive/2 008/dir_14_08.pdf (emphasis added). . . . A subsequent 2009 amendment to Question 17 . . . added more subparts, which inquired into a defendant's understanding that he will be subject to deportation for pleading guilty to a crime constituting an "aggravated felony" under federal law and asked whether the defendant understood his right to seek legal advice on his immigration status before pleading guilty. Administrative [Office of the Courts,] Directive # 08-09 (Sept. 4, 2009), available at http://www.judiciary.state.nj.us/directive/ 2009/dir_08-09.pdf.
We conclude that under the prevailing law in effect in April 2008, counsel's advice was not unreasonable advice or outside the professional norms, and thus, is not prima facie proof of ineffective assistance of counsel. Lastly, defendant has not demonstrated that he was prejudiced or that the outcome would have been any different had counsel advised with any more certainty. The PCR court observed that even if counsel's advice was deficient, defendant "has not credibly stated he would have come to a different decision if counsel said he was [110%] sure he would be deported, as opposed to stating he was [99.9%] sure of the immigration consequences."
Finally, we review under the abuse of discretion standard the PCR court's determination to proceed without an evidentiary hearing. Brewster, supra, 429 N.J. Super. at 397. If the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, then an evidentiary hearing need not be granted. See State v. Preciose, 129 N.J. 451, 462-64 (1992); see also State v. Flores, 228 N.J. Super. 586, 590 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989). We find no abuse of discretion in the denial of defendant's PCR petition without an evidentiary hearing since the facts defendant alleged did not entitle him to such relief.
The request to vacate the guilty plea is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
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Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION