Opinion
DOCKET NO. A-1496-14T4
06-28-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DWAYNE SUTHERLAND, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Rasheedah R. Terry, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Guadagno and Vernoia. On appeal before the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-02-0280. Joseph E. Krakora, Public Defender, attorney for appellant (Rasheedah R. Terry, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Dwayne Sutherland appeals an October 6, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
We glean the following facts and procedural history from the record. Defendant was charged in an indictment with second-degree conspiracy to possess a controlled dangerous substance (CDS) and to possess with intent to distribute CDS, N.J.S.A. 2C:5-2 (count one); fourth-degree possession of CDS, N.J.S.A. 2C:35-10(a)(3) (count two); and first-degree possession with intent to distribute CDS, N.J.S.A. 2C:35-5(a)(1) and (b)(10)(a) (count three).
Defendant was charged in each count with three codefendants. --------
On July 20, 2010, defendant entered a plea of guilty to second-degree conspiracy to possess with intent to distribute CDS, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5, pursuant to a plea agreement with the State. At the outset of the plea proceeding the court noted that defendant was "not in this country legal[ly]," was "already subject to removal proceedings for unrelated issues," and "need[ed] to be aware that his conviction . . . will require mandatory deportation." Defendant's counsel agreed with the court's statements regarding defendant's "status in this country."
Prior to the administration of the oath to defendant, the following exchange took place between the court and defendant:
Court: You understand the consequences of accepting the plea by the [c]ourt you will [be] deported. Where are you from, sir?
Defendant: Jamaica.
Court: You will be deported I suspect to your home country of Jamaica. Is that your understanding?
Defendant: Yes.
Court: Is it still your desire to enter a plea of guilty?
Defendant: Yes.
Defendant was then administered the oath and was questioned by the court and counsel. Defendant testified that he reviewed the copy of the plea form which was "right in front of [him]" with his attorney. The court asked defendant questions concerning the plea form.
Court: Do you remember going over this form with your attorney?
Defendant: Yes, your Honor.
Court: How far did you go in school, sir?
Defendant: I graduated high school.
Court: Graduated high school. All right. So, you can read very well?
Defendant: Yes, your Honor.
Court: Did you read this form or did [your plea counsel] read this form to you?
Defendant: I read it and also went over it.
Court: You understand it?
Defendant: Yes, your Honor.
Court: Did you review the answers on this form?
Defendant: Yes, your Honor.
Court: Are these your answers?
Defendant: Yes, your Honor.
Court: If I went through each of these questions, would your answers be the same?
Defendant: Yes, your Honor.
Court: Now, let's focus on the question — on this form it talks to your Question 17: Not a citizen. Do you understand that? And you said no. Is that correct?
Defendant: Yes, your Honor.
Court: Do you understand if you're not a citizen or national, the chances are you will be deported because it's a second degree offense and you understand that? You wrote yes and you understand very clearly?
Defendant: Yes.
Court: Under the law it's considered an aggravated felony which would subject you to deportation. Do you understand that?
Defendant: Yes.
Defendant further testified that he had enough time to speak with his counsel, was satisfied with his counsel's services, was not threatened or forced to enter the guilty plea, and was doing so of his own free will.
Defendant also testified that he and a codefendant agreed to meet and accept delivery of 640 pounds of marijuana from a tractor-trailer truck, and were transferring the marijuana to a van when the police arrived. Defendant stated that his purpose was to distribute the marijuana.
The court accepted defendant's plea and on September 13, 2010, sentenced defendant to a seven-year custodial term and payment of fines and penalties. In accordance with the plea agreement, the court dismissed counts two and three.
Defendant filed an appeal challenging his sentence and at oral argument also asserted that there was an inadequate factual basis for his plea of guilty. We affirmed defendant's sentence and concluded that "there was an adequate factual basis for defendant's plea of guilty." State v. Sutherland, No. A-6249-10 (App. Div. June 4, 2012). Defendant's petition for certification was denied. State v. Sutherland, 212 N.J. 462 (2012).
On October 8, 2013, defendant filed a pro se PCR petition. He was assigned counsel who filed a brief arguing that defendant's plea counsel was ineffective by pressuring defendant into pleading guilty and not allowing defendant to consult with an immigration attorney when defendant was uncertain if he would be deported.
The court heard oral argument and denied defendant's PCR petition without an evidentiary hearing for reasons stated in a written opinion. On October 6, 2014, the court entered an order denying the petition. This appeal followed.
On appeal, defendant makes the following arguments:
POINT I.
THE PCR COURT'S RULING MUST BE REVERSED BECAUSE PLEA COUNSEL FAILED TO PROPERLY ADVISE DEFENDANT THAT HE FACED MANDATORY DEPORTATION BY VIRTUE OF HIS GUILTY PLEA.
POINT II.
THE DEFENDANT SHOULD BE PERMITTED TO RETRACT HIS PLEA IN THE INTEREST OF JUSTICE.
A. Mr. Sutherland Presented a Colorable [C]laim of Innocence.
B. The Nature and Strength of Defendant's Reasons for Withdrawal Weigh in Favor of the Motion to Retract the Plea.
C. Defendant is Entitled to Withdraw [H]is Plea Notwithstanding Evidence of a Plea Bargain.
D. The Withdrawal of the Plea would not Result in Unfair Prejudice to the State or Unfair Advantage to the Accused.
POINT III.
THE COURT SHOULD REMAND THE MATTER FOR AN EVIDENTIARY HEARING.
II.
We review the legal conclusions of a PCR court de novo. State v. Harris, 181 N.J. 391, 419 (2004) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The de novo standard of review applies to mixed questions of fact and law. Id. at 420. Where an evidentiary hearing has not been held, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Id. at 421.
The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a criminal proceeding has the right to the assistance of counsel in his or her defense. The right to counsel includes "the right to the effective assistance of counsel." State v. Nash, 212 N.J. 518, 541 (2013) (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).
In Strickland, the Court established a two-part test, which was adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been deprived of the effective assistance of counsel. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the first prong of the Strickland standard, a petitioner must show that counsel's performance was deficient. It must be demonstrated that counsel's handling of the matter "fell below an objective standard of reasonableness" and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.
Under the second prong of the Strickland standard, a defendant "must show that the deficient performance prejudiced the defense." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. There must be 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.
"With respect to both prongs of the Strickland test, a defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his or her right to relief by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350 (2012) (citing State v. Echols, 199 N.J. 344, 357 (2009); State v. Goodwin, 173 N.J. 583, 593 (2002)), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702; Nash, supra, 212 N.J. at 542; Fritz, supra, 105 N.J. at 52.
Defendant argues that his plea counsel's performance was deficient because he failed to "clearly advise[]" defendant that deportation was mandatory as a result of the conviction and informed him that the deportation issue could be raised on direct appeal. He contends the PCR court erred by failing to conclude that his allegations concerning his counsel's alleged deficiencies sufficiently established a prima facie case of ineffective assistance to warrant an evidentiary hearing. We disagree.
"Although a demonstration of prejudice constitutes the second part of the Strickland analysis, [we] are permitted leeway to choose to examine first whether a defendant has been prejudiced, and if not, to dismiss the claim without determining whether counsel's performance was constitutionally deficient." Gaitan, supra, 209 N.J. at 350 (citations omitted). We choose to do so here.
As correctly determined by the PCR court, defendant did not sustain his burden of establishing the second prong of the Strickland standard because he failed to present "sufficient evidence to show 'a reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty and would have insisted on going to trial.'" State v. O'Donnell, 435 N.J. Super. 351, 376 (App. Div. 2014) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)). Defendant was required to demonstrate that "had he been properly advised, it would have been rational for him to decline the plea offer and insist on going to trial and, in fact, that he probably would have done so." State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (citing Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010)).
Defendant's verified petition did not address or satisfy his burden under the second prong of the Strickland standard. He did not present any evidence showing that had he been fully advised by his counsel regarding the potential immigration consequences of his plea or understood that his counsel would not address the deportation consequences on appeal, he would have rejected the plea offer and proceeded to trial. O'Donnell, supra, 435 N.J. Super. at 376.
In addition to his failure to satisfy his burden under the second prong of the Strickland standard, the record directly contradicts any claim that had defendant been properly advised by his plea counsel, he would have rejected the plea offer and proceeded to trial. We are satisfied that the record of the plea proceeding, defendant's admission that the answers to question 17 on the plea form were his, and defendant's testimony establish that defendant was fully aware his conviction would result in mandatory deportation. Defendant's testimony established that he chose to accept the plea offer with full knowledge he was subject to mandatory deportation. As a result, he could not establish that had he been properly advised by his plea counsel the result of the proceeding would have been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; O'Donnell, supra, 435 N.J. Super. at 376.
The record also shows that defendant was arrested as he and his codefendant transferred 640 pounds of marijuana from a truck to a waiting van. Count three charged defendant with first-degree possession with intent to distribute CDS, N.J.S.A. 2C:35(a)(1) and (b)(10)(a), an offense which exposed defendant to up to twenty years of incarceration. N.J.S.A. 2C:43-6(a)(1).
Defendant avoided the possibility of being sentenced as a first-degree offender by accepting the plea offer and limited his sentencing exposure to a custodial term of seven years, a midrange sentence for the second-degree offense to which he pled guilty. N.J.S.A. 2C:43-6(a)(2). Defendant's PCR petition, however, was devoid of evidence establishing that given his sentencing exposure, the apparent strength of the State's case, and the State's offer to reduce defendant's substantial sentencing exposure, it would have been rational to reject the plea offer and that he probably would have done so. Maldon, supra, 422 N.J. Super. at 486.
Because defendant failed to satisfy his burden of establishing prejudice under the second prong of the Strickland standard, we are satisfied that the PCR court correctly denied defendant's petition and do not need to address defendant's claim that his attorney's performance was deficient. See Nash, supra, 212 N.J. at 543-44 (finding that defendant's failure to establish one prong of the Strickland standard renders it unnecessary to consider the other prong).
We also reject defendant's claim that the court should have conducted an evidentiary hearing. A hearing is required when a defendant presents a prima facie case for PCR under the Strickland standard, the existing record is inadequate to resolve defendant's claim, and the court determines an evidentiary hearing is required. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)). As noted, the existing record provided an adequate basis for the court's finding that defendant did not establish a prima facie case of ineffective assistance of counsel under the Strickland standard, and therefore an evidentiary hearing was not required. Ibid.
We do not consider defendant's argument, raised for the first time on appeal, that he was entitled to withdraw his plea under the standard established in State v. Slater, 198 N.J. 145, 157-58 (2009). He did not move before the PCR court for withdrawal of his plea. We decline to consider the argument because it was not raised in the PCR petition, was not argued before the PCR court, and does not involve jurisdictional or public interest concerns. State v. Robinson, 200 N.J. 1, 20 (2009); State v. Arthur, 184 N.J. 307, 327 (2005); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION