Opinion
DOCKET NO. A-4424-13T3
02-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JERRY PHILEMOND, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Grace H. Park, Acting Union Prosecutor, attorney for respondent (Meredith L. Balo, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 08-02-0160 and 08-05-0370. Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Grace H. Park, Acting Union Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jerry Philemond appeals from an order entered by the Law Division on February 21, 2014, denying his petition for post-conviction relief (PCR). We affirm.
I.
Defendant was charged under Union County Indictment No. 08-05-0370 with first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count four); fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4) (count five); first-degree, second-degree, and third-degree use of a person seventeen years or younger to commit a crime, N.J.S.A. 2C:24-9 (counts six, seven, and eight); and fourth-degree unlawful possession of a firearm by a minor, N.J.S.A. 2C:58-6.1(b) (count nine). Defendant also was charged under Union County Indictment No. 08-02-0160 with first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 (count one).
On January 20, 2008, defendant pled guilty to second-degree robbery, as charged in count one of Indictment No. 08-05-0370, as amended. He also pled guilty to fourth-degree witness tampering, as charged in count one of Indictment No. 08-02-0160, as amended. Defendant was twenty-one years old at that time. At the plea hearing, defendant stated that he and co-defendants Christopher Mota and juvenile W.J. agreed to rob a person in Roselle Park.
Defendant acknowledged that he knew someone was going to use a handgun during the robbery, in order to put fear in the victim so that they could take his money or valuables. Defendant said he and his co-defendants approached an individual. One of the co-defendants pulled out a handgun, and the victim gave them his valuables, which defendant and his co-defendants planned to divide among themselves.
Defendant also stated that, while he was incarcerated on the robbery charge, he became acquainted with another inmate. Defendant asked the inmate to reach out to the victim of the robbery, with the intention that the victim would not show up and testify in court. Defendant admitted that he knew this was unlawful and constituted witness tampering.
Defendant stated that he knew he faced up to forty years of incarceration, with an 85% period of parole ineligibility, on the charges under the two indictments. He said he was upset that the State's plea offer of a seven-year prison term was longer than the sentences his co-defendants would receive. Defendant wanted a six-year prison term. The court gave defendant additional time to discuss the plea with his attorney. He decided to accept the State's plea offer of a seven-year term, with an 85% period of parole ineligibility.
Defendant stated that he had sufficient time to discuss the matter with his attorney, and he was pleased with the services that counsel had provided to him. He told the court he was a citizen of the United States. He said he had reviewed the plea forms with his attorney. He stated that he read every line and filled out the forms with his attorney.
Defendant also said that all of the answers on the form were true and accurate. On the plea form, "Yes" was circled on the line asking whether he was a United States citizen. "Yes" was also circled on the line asking if he understood that he could be deported as a result of the guilty plea, if he was not a United States citizen.
The judge sentenced defendant on the robbery to six years of incarceration, with an 85% period of parole ineligibility, pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed a concurrent eighteen months of incarceration for witness tampering. The other charges in the indictments were dismissed.
The court entered judgments of conviction on May 29, 2009. The judgment of conviction on Indictment No. 08-05-0370 erroneously stated that the court had imposed a seven-year custodial term.
Defendant filed an appeal challenging his sentence, and the appeal was heard on our excessive sentence oral argument calendar. R. 2:9-11. The sentences were affirmed, but the matter was remanded to the trial court for correction of the judgment of conviction so that it would reflect the sentence that the court had imposed on the record. State v. Philemond, No. A-1281-09 (App. Div. Nov. 17, 2010).
II.
On January 30, 2013, defendant filed a pro se PCR petition in the trial court, claiming that he had been denied the effective assistance of counsel, and this required vacation of the guilty plea and sentence. The court appointed counsel to represent defendant and counsel filed an amended petition.
In the amended petition, defendant alleged that his attorney failed to inform him that a guilty plea mandated deportation; he is entitled to withdraw the plea because he did not know about the immigration consequences of the plea; and an evidentiary hearing should be conducted to resolve the claim of ineffective assistance of counsel.
The PCR court considered the petition on January 23, 2014, and decided that an evidentiary hearing was required. The hearing took place on February 21, 2014. Defendant testified that he pled guilty to second-degree robbery and fourth-degree witness tampering on January 28, 2009. Defendant said his attorney wanted him to plead guilty, even though he told his attorney he was innocent. Defendant said he "felt pressured." He asserted that his attorney told him the judge "would be mad" at him if he did not plead guilty.
Defendant testified that he was born in Haiti, but he did not recall living there. His mother brought him to the United States when he was five years old. When he was eighteen years old, he sought to renew his "green card" and learned that he was a legal permanent resident. When he pled guilty, defendant told the judge he was a United States citizen.
According to the United States Citizenship and Immigration Services (USCIS), "A Green Card holder (permanent resident) is someone who has been granted authorization to live and work in the United States on a permanent basis. As proof of that status, a person is granted a permanent resident card, commonly called a 'Green Card.'" USCIS, Green Card, http://www.uscis.gov/greencard, (last updated May 13, 2011).
Defendant claimed that his attorney led him to believe that there was no difference between being a resident and a citizen. He stated that he believed he was a United States citizen when he pled guilty. After he served his sentence, defendant went to renew his green card. He learned that he was subject to deportation.
Defendant further testified that he did not want to plead guilty, but his attorney obtained his mother's medical history and he learned that she had a certain condition. His attorney told him that, after he entered his plea, he could go home and spend some time with his mother. Defendant claimed that he agreed to enter the guilty plea, but could not make bail. His attorney told him he would "take care of it," but defendant said "he did nothing."
In addition, defendant testified that he asked his attorney to file a motion seeking a Wade hearing, because he thought the identification process undertaken by the police was unfair. The motion was not filed. He also asked his attorney to obtain an audio recording of a 9-1-1 call. He stated that another attorney who had represented him said she wanted to hear that tape.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). --------
He also testified that he wanted to challenge the charges based on "inconsistencies" in the statement of one of his co-defendants. According to defendant, his attorney made him "feel" that it would be "wrong" for him "to go to trial." Defendant also stated that he did not recall seeing the plea form when he entered his guilty plea. He did not recall signing the form.
Defendant said his attorney did not tell him he could be deported if he was not a United States citizen. Defendant asserted that he had several discussions with his attorney before entering his plea. He said his records indicated he had a green card. He said his attorney told him to tell the judge he was a United States citizen. He claimed that, although he was represented by several attorneys, he was never advised as to the immigration consequences of a plea.
Defense counsel testified that it was his understanding that defendant was a United States citizen. Defendant never told him he was not a citizen, and never told him he had a green card. Defense counsel said he would never have told defendant there was no difference between a citizen and resident because that is not the case. He said that it is his normal practice to inform his clients that
If you're not a U.S. citizen, you may be deported by virtue of your plea. Some attorneys used to put "Not applicable" or "No," but I always felt the client[s] should understand that if they're not a U.S. citizen or if anything does come up, they were advised of that as well.
Defense counsel also said defendant's school records described him as "a Haitian boy" but counsel said this did not mean he was born in Haiti. He explained the records could state that a person was "Hispanic" but the person could have been born in the United States. Counsel interpreted a description of defendant as a "male of Haitian descent" to mean that his parents were Haitian. He testified that defendant told him when the plea was entered that he was a United States citizen.
Counsel stated that he normally reviews the discovery with his client, but could not recall whether he did so in this case. He said he thought the State had a strong case, otherwise he would have recommended that the case be tried. Counsel stated that he obtained "a lot of records" and would have spoken to an alibi witness, if there was one. Counsel said defendant wanted to be released on bail after the plea. Counsel made a motion for a reduction in bail, which the judge granted; however, defendant was still upset that the amount of bail had not been reduced further.
The PCR judge placed his decision on the record. The judge found that defense counsel was "very credible, [and] very forthright." He found that defendant
readily, under oath, lied to the [sentencing] court, indicated in the plea form that he was a citizen of the United Sates, that he answered yes to whether [he] understood if he's not a U.S. citizen or national [he] may be deported by virtue of [his] plea of guilty. [Although] he had a green card, it's preposterous that he didn't know that he was not a citizen of the United States at age 21 when he took this plea.
The judge found that defense counsel did not affirmatively misinform defendant regarding the consequences of the plea. The judge stated that defense counsel did not tell defendant to lie on the plea form or lie to the sentencing judge. The judge found that this claim was "preposterous." He stated that defense counsel's testimony at the hearing was "extremely credible." The judge said defense counsel was not going to risk his law license by telling a client to lie to a judge under oath or to lie on the plea form.
The judge concluded that defendant's petition should be denied. He rejected defendant's claim that he had been denied the effective assistance of counsel. The judge entered an order dated February 21, 2014, denying PCR. This appeal followed.
III.
Defendant argues that the order denying PCR should be reversed. He contends he was denied the effective assistance of plea counsel because his attorney: (1) misinformed him about the immigration consequences of the guilty plea; (2) failed to secure one of the "foundations" for the guilty plea, specifically, that he would be released on low bail pending sentencing; (3) failed to file pre-trial motions; and (4) did not sufficiently evaluate and discuss the case with him before the plea was entered.
Defendant's claim that he was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which our Supreme Court has adopted for evaluating ineffective-assistance-of-counsel claims under our State constitution. State v. Fritz, 105 N.J. 42, 58 (1987).
Under Stickland, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that 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.
The Strickland test applies to challenges to plea agreements based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985); State v. DiFrisco, 137 N.J. 434, 456-57 (1994). To set aside a guilty plea on this basis, the defendant must show that counsel failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Hill, supra, 474 U.S. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). The defendant also must establish "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.
A. Immigration Consequences of the Plea.
Defendant argues that he was denied the effective assistance of counsel because his attorney allegedly misinformed him as to the deportation consequences of a guilty plea. This argument is without merit.
As noted previously, the PCR court found that defendant lied to his attorney by telling him that he was a United States citizen. Defendant also falsely indicated on his plea forms that he was a citizen of the United States. The court rejected defendant's claim that his attorney should have known that he was not a United States citizen because some of the records indicated he was of Haitian ancestry. We are convinced that the record supports the court's findings. Based on those findings, the court correctly found that defendant had not been denied the effective assistance of counsel.
Defendant's reliance upon State v. Nuñez-Valdéz, 200 N.J. 129 (2009), is misplaced. In that case, the Court determined that the plea should be set aside because plea counsel affirmatively misinformed the defendant regarding the deportation consequences of the plea. Id. at 141-42. The Court noted that the defendant had raised his immigration status with plea counsel, who told him it had "no part in this case." Id. at 133.
Here, however, defendant told his attorney and the court that he was a United States citizen. Moreover, defendant signed the plea forms, which stated that he could be deported if he was not a citizen of the United States. Defense counsel testified that he went over the plea forms with defendant. The PCR judge found the testimony of defendant's attorney to be credible. Thus, Nuñez-Valdéz provides no support for defendant's claim of ineffective assistance of counsel.
Defendant's reliance upon Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), also is misplaced. In Padilla, the Court held that "when the deportation consequence is truly clear," plea counsel has an "equally clear" duty to provide "correct advice." Id. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296. However, in State v. Gaitan, 209 N.J. 339, 371-72 (2012), our Supreme Court held that Padilla established a new rule of law that would not be applied retroactively.
The Court noted that, before Padilla was decided, plea counsel did not have a duty to inform a defendant of the immigration consequences of a guilty plea. Id. at 371. The Court also noted that the defendant, in that case, had not been affirmatively misinformed as to the immigration consequences of the plea. Id. at 374-76.
Here, defendant entered his plea in 2008, which was before Padilla was decided. Thus, plea counsel had no affirmative duty to inform him of the immigration consequences of his guilty plea. Moreover, as the PCR court found, defendant misinformed his attorney by telling him that he was a United States citizen, and defendant's records did not put counsel on notice that defendant was not, in fact, a citizen of the United States. In addition, the plea forms, which defendant signed, made clear that he could be deported if he was not a United States citizen.
B. Bail Reduction.
Defendant also argues that he was denied the effective assistance of counsel because his attorney induced him to plead guilty on the assumption that bail would be reduced below a certain amount before sentencing. We disagree.
At the PCR hearing, defendant testified that his attorney told him he would be released on bail pending sentencing, and he told counsel he could not afford anything more than $10,000. According to defendant, counsel said he would "take care of it." The record shows that the judge reduced defendant's bail on the robbery charge from $250,000 to $85,000, and the bail on the witness tampering from $75,000 to $5,000. Defendant was dissatisfied and wanted the total bail reduced to $10,000.
Defense counsel testified that his usual practice regarding bail motions is to advise his clients that he will try to get the amount of bail reduced, but he cannot guarantee that the judge will do so. As noted, defense counsel successfully argued for the reduction of bail. Defendant was upset that the judge did not reduce the bail further.
It is clear, however, that a reduction of bail to a specific amount was never a part of the plea agreement. Moreover, the record shows that counsel was not ineffective in his handling of the plea or the bail application.
C. Pre-Trial Motions and Discussions with Counsel.
In addition, defendant argues that his attorney was ineffective because he failed to file certain motions and did not discuss the case with him sufficiently before he entered the guilty plea. Again, we disagree.
As noted, defendant argues that his attorney was deficient because he did not file motions for a Wade hearing, to suppress the identification evidence, and for dismissal of the indictment. However, defendant must do more than simply allege that certain motions should have been filed. He must establish that the motions would have been successful. State v. O'Neal, 190 N.J. 601, 618-19 (2007) (holding that defense counsel is not required to file meritless motions). Defendant failed to show that the motions to suppress and to dismiss the indictment would have been granted. He also has not shown that the outcome here would have been different if counsel had undertaken more discussions with him concerning the case or the plea.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION