NOT FOR PUBLICATION

PER CURIAM.

Defendant appeals from an order denying post-conviction relief (PCR). Defendant argued that his trial counsel was ineffective because she failed to inform defendant that, as a consequence of his plea and conviction for drug-related offenses, which were deemed aggravated felonies under federal law, he would be subject to mandatory deportation. See 8 U.S.C.A. § 1227(a)(2)(A)(iii) (stating person who commits an aggravated felony is deportable); 8 U.S.C.A. § 1101(a)(42) (stating "aggravated felony" includes "illicit trafficking in a controlled substance). After an evidentiary hearing, Judge Harold W. Fullilove determined that defendant received ineffective assistance of counsel, but that he suffered no resulting prejudice. We affirm based on the judge's finding of no prejudice.

I.

We discern the following facts from the record. Defendant pleaded guilty before Judge Fullilove on January 30, 2006 to two drug-related crimes: third-degree possession of a controlled dangerous substance (cocaine) on January 12, 2004, with the intent to distribute, N.J.S.A. 2C:35-5a(1), (b)(3); and third-degree possession of marijuana on October 20, 2005 with intent to distribute, N.J.S.A. 2C:35-5. The 2004 and 2005 crimes were charged, respectively, in an indictment and an accusation; and, each charging instrument included counts for possession with intent to distribute in a school zone, N.J.S.A. 2C:35-7; the accusation also charged distribution, N.J.S.A. 2C:35-5; and the indictment also charged possession, N.J.S.A. 2C:35-10. Defendant had been free on bail on the cocaine-related charges when he was arrested for the marijuana-related charges.

Pursuant to the plea agreement, Judge Fullilove sentenced defendant to concurrent non-custodial probationary terms of four years. Defendant had earned ten days of jail credit on the cocaine-related charge, and sixty-three days on the marijuana-related charge. Defendant had no prior indictable convictions, but he had a conditional discharge and subsequent convictions in municipal court. Born in Jamaica in 1980, defendant was a permanent legal resident of the United States, where he had lived for twelve years prior to pleading guilty.

The record of the plea hearing reflects that defendant was advised of the possibility of immigration consequences resulting from his conviction, but not the near-certainty of deportation. On the other hand, "N/A" was inaccurately circled in response to the plea form's question seventeen, which asked, "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?"

However, Judge Fullilove directly addressed defendant's immigration status during the plea hearing:

At sentencing on March 13, 2006, the judge again discussed the immigration consequences of defendant's plea

The court then imposed a sentence in accord with the plea agreement.

On November 3, 2009, defendant was arrested on an unrelated contempt charge, and while incarcerated, United States immigration officials lodged a detainer against him. Defendant then filed his PCR petition, alleging his trial attorney was ineffective by failing to inform him that his conviction would constitute an aggravated felony triggering mandatory removal. He also claimed that he was not informed that if he pleaded guilty only to simple possession, he allegedly would have been eligible to apply for cancellation of removal in Immigration Court. He asserted his attorney told him "only that if he went to trial and was found guilty he would be deported."

Judge Fullilove determined an evidentiary hearing was required. Defendant and his former trial counsel testified, along with defendant's minister. Defense counsel could not recall specifics about her communications with defendant before his plea, including whether he was a non-citizen, and whether she discussed the immigration consequences of his plea. She admitted she was unsure whether she circled "N/A" in response to question seventeen. She testified that her general practice was to inform clients of the ramifications of a conviction. At the time of the plea, she believed "there [was] a possibility that he could be deported" for an aggravated felony, but she also stated she could not recall if she knew at the time the consequences of a plea for a crime that was not so categorized. She agreed that if defendant went to trial, he faced the possibility of consecutive sentences, and periods of parole ineligibility for the school zone offenses.

Defendant's testimony at the PCR hearing was inconsistent. He testified that his attorney said nothing to him about the immigration consequences of his plea, and did not suggest that he confer with an immigration attorney. He stated his attorney filled out the plea form, did not read it to him, and circled "N/A" in answer to question seventeen. However, he also testified, "I believe she know [sic] that I was not a citizen," and conceded that she read at least some of the questions to him aloud, and inserted his answers. He alleged that his attorney told him if he pleaded guilty, he would only receive probation, but if he took the case to trial and was found guilty, he would be subject to imprisonment and deportation. He testified he would not have pled guilty if he had been told he "might be deported." He also conceded he was aware he could "possibly" be deported before he pleaded, but did so nonetheless.

Defense counsel also argued that as a result of defendant's strong ties to his children, he would not have pleaded guilty had he known the likelihood of deportation. Defendant testified that he was the father of five children; he was the primary residential custodian of a son, Nick.1 He also maintained a strong relationship with another son who lived with his mother in East Orange, and with two daughters who lived with their mother in Newark, visiting the three on weekends and attending church with them. He said another child was removed by her mother, and he did not know her whereabouts.

However, defendant admitted that his attorney did not link his plea to its impact on his relationship with his children. On cross-examination, defendant admitted that he could not recall whether his daughters were actually living in Jamaica at the time of his plea, and then conceded that his pre-sentence report accurately stated they lived in Jamaica.

II.

In a written decision, Judge Fullilove denied the petition. He applied the well-settled two-prong test for determining whether defendant was entitled to PCR. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).

In finding ineffective assistance, the judge applied the standard set forth in Padilla v. Kentucky, 559 U.S. ___, ___ 130 S.Ct. 1473, 1483, 176 L. Ed. 2d 284, 296 (2010), that an attorney has a professional duty to inform a non-citizen client when removal is not merely possible, but certain. He concluded that defendant's attorney did not meet that standard. Therefore, the ineffective assistance prong of Strickland was met.

However, the court found defendant had "fallen very short of satisfying the second prong" — prejudice. We set forth at length Judge Fullilove's findings regarding prejudice:

On appeal, defendant raises the following points for our consideration:

III.

We recognize that in finding ineffective assistance, Judge Fullilove did not have the benefit of the Supreme Court's decision in State v. Gaitan, 209 N.J. 339 (2012), declining to give retroactive effect to Padilla. It is now settled that when defendant entered his plea in 2006, defense counsel was not required, as part of her obligation to provide effective assistance, to inform defendant that he faced a virtual certainty of removal or deportation as a result of his conviction of an aggravated felony. Gaitan, supra, 209 N.J. at 380. Our Supreme Court held that Padilla established a new rule of law. Id. at 373.

However, defense counsel pre-Padilla was still required to avoid affirmatively misinforming her client about the immigration consequences of his plea; she was also required not to compound the error by providing inaccurate and misleading information. Ibid. The Court in State v. Nuñez-Valdéz, 200 N.J. 129, 140-42 (2009), held that providing such misinformation and misleading information was ineffective assistance, and the Court in Gaitan, supra, held that was not a new rule of law and thus it applied retroactively, 209 N.J. at 373-74.

Applying the standard of performance enunciated in Nuñez-Valdéz, but refraining from retroactively applying the standard enunciated in Padilla, it is unclear whether Judge Fullilove would have found ineffective assistance. He did not expressly decide whether defendant's trial attorney affirmatively misinformed him. Making that finding would require a reassessment of the evidence, inasmuch as defendant alleged he was misinformed that probation would not result in deportation, but conviction after trial would.

However, we need not remand for that purpose, in view of Judge Fullilove's amply supported finding that defendant failed to demonstrate prejudice. To satisfy the prejudice prong, defendant was required to show "a reasonable probability that, but for counsel's errors, [he] would not have pled guilty and would have insisted on going to trial." Gaitan, supra, 209 N.J. at 351 (citation and quotation omitted). The judge found defendant failed to make that showing. The judge made essential factual findings based on the evidence presented, and we shall not disturb them. See State v. Feaster, 184 N.J. 235, 278 (2005) (stating that in the context of a PCR petition, the appellate court must "give deference to the trial court[`]s factual findings... when supported by adequate, substantial and credible evidence") (citation and quotation omitted); see also N.J. Div. of Youth and Family Servs. v. L.L., 201 N.J. 210, 226-27 (2010) (observing that the appellate court will not disturb trial court's findings when supported by substantial credible evidence, but will intervene when the court's conclusion is "clearly mistaken or wide of the mark").

In sum, we affirm for the reasons set forth in Judge Fullilove's well-reasoned written opinion as it pertained to defendant's failure to demonstrate prejudice from the alleged ineffective assistance of counsel.

Affirmed.