NOT FOR PUBLICATION
PER CURIAM.
Defendant appeals from an order denying post-conviction relief (PCR) without an evidentiary hearing. Defendant entered a plea in Essex County in April 2005 to first-degree sexual assault, and was sentenced in August 2005 to a fifteen-year term, subject to the No Early Release Act (NERA) and Megan's Law. Pursuant to the plea agreement, the sentence was concurrent to a ten-year sentence, under a March 2005 plea in Morris County, for first-degree attempted murder against the same victim, and third-degree aggravated assault.
Defendant argued, in his pro se petition and through appointed PCR counsel, that his trial counsel was ineffective because he (1) failed to inform defendant that, as a non-citizen born in Guyana, he would be subject to deportation as a result of his plea; (2) failed to conduct an adequate investigation; and (3) pressured him to enter a plea.1 Judge Thomas R. Vena denied the petition in an oral decision, which he supplemented with a written opinion. We affirm.
I.
Defendant and the victim, B.T., had resided together between 1997 and 2001 and had one child together.2 They separated and in the fall of 2002, the victim alleged she was a victim of domestic violence and twice obtained temporary restraining orders, which were ultimately dismissed. Criminal charges of terroristic threats and stalking were also filed, but downgraded in early November 2002.
Judge Vena described as follows the subsequent events that gave rise to the sexual assault charge:
On November 25, 2002, Petitioner waited for the victim to drop off their daughter and asked the victim to drive him into Newark. During the drive, Petitioner demanded the keys from the victim and drove her to his mother's house... in Maplewood. Upon arrival, Petitioner forced the victim to the basement; he got a kitchen knife and stabbed her on the left shin. Petitioner kicked and punched the victim in the face and throughout the body. Petitioner forced the victim to remove her clothing and forced vaginal intercourse on her. Subsequently, he struck her with a metal pipe.
Petitioner retained the victim in the basement until approximately 2 p.m. when he drove her into Elizabeth stating they were going to find the man she had slept with the night before. While in Elizabeth, the victim was able to jump out of the vehicle and call Elizabeth police. The victim was taken to Overlook Hospital where a sexual assault rape analysis kit was administered. Elizabeth police were able to recover the knife which Petitioner had thrown into a trash can but were unable to apprehend the Petitioner.
Maplewood Police obtained permission of Petitioner's mother to search the home at.... In the basement of the house, police found a pull-out co[u]ch with bloody sheets and comforter, a bloody towel, a pipe with hair fragments on it and one of the victim's socks. On November 30, 2002, the victim's automobile was found abandoned in East Orange. The victim advised Maplewood police that Petitioner had removed their daughter from her day care center in December of 2002 but had released her unharmed inside a town library. Warrants were issued for Petitioner on charges of First Degree Kidnapping (N.J.S.A. 2C:13-1) and First Degree Sexual Assault (N.J.S.A. 2C:14-2).
On February 8, 2003, the victim reported to the Morristown police that Petitioner made several threatening telephone calls to her place of employment and had threatened to harm her brother if he could not harm her. On June 7, 2003, the victim left her employment in Morristown and walked to her car in the municipal lot. Petitioner entered the victim's car on the passenger side and pointed a silver handgun at her. Petitioner told the victim to drive to a stolen BMW located on Route 80. Petitioner struck the victim with the barrel of the gun because he perceived she was driving to[o] fast. Victim observed that a Summit police officer was assisting a disabled vehicle and stopped the car and yelled out that Petitioner had a gun. The officer drew his gun and pointed it at the car. Petitioner pointed his gun at the officer and pulled the trigger but the gun did not discharge. Petitioner exclaimed, "why ain't these bullets firing?" Petitioner told victim to get out of the car, she opened the door and fell out onto the road. Petitioner drove off in the victim's car.
On June 8, 2003, the victim's car was found in Newark. A shell casing (.32 caliber) and a bullet (.32 caliber) were discovered inside the victim's car. [I]n September of 2003, the weapon (.32 caliber handgun), the victim's car keys and bullets (.32 caliber) were found at a location in Syracuse, New York. On September 9, 2003, the Petitioner was arrested in an apartment that he rented in Syracuse. On March 2, 2005, Petitioner pled guilty to First Degree Attempted Murder and Third Degree Aggravated Assault under Morris County Indictment No. 03-10-1170.
Defendant was charged in a June 2003 nine-count Essex County indictment with first-degree carjacking, kidnapping and aggravated sexual assault, second-degree aggravated assault, third-degree terroristic threats, and multiple weapons-related offenses. A month after his Morris County plea, defendant entered his plea before Judge Vena to the first-degree aggravated sexual assault charge. The plea agreement called for a fifteen-year NERA term, concurrent to the Morris County ten-year NERA term.
Judge Vena recalled defendant "entered his plea... by acknowledging the fact and describing, in fact, what it is that he did on the time, date and place in question in Essex County that justifie[d] the entry and acceptance of his guilty plea to the first-degree sexual assault." According to the State, defendant admitted he committed the sexual assault again in his interview at Avenel. Judge Vena described the plea agreement as a favorable one. As it imposed a concurrent term of imprisonment five years longer than the Morris County term, Judge Vena characterized the plea as calling for "in essence, five years for rape."
Judge Vena recalled addressing the immigration consequences of the plea.
The petitioner argues that [as] a result of his counsel's ineffective assistance, that he was unaware that a guilty plea would result in proceedings against him. Petitioner's claim is without merit on account petitioner entered his guilt[y] plea on April 4th, 2005. In offering his plea, he acknowledged reading and reviewing with counsel question number 17 on the plea form, the L.R.-27, which asked if he had — did he understand that he may be deported by virtue of the plea of guilty if he is not a United States citizen or national? He answered yes.
Judge Vena recalled that defendant knowingly, intelligently and voluntarily entered into the plea agreement, understood its terms, and had no questions.
The immigration consequences of defendant's plea were addressed again at sentencing. In arguing for a ten-year term, instead of the fifteen-year term contemplated by the plea agreement, defense counsel referred to defendant's likely deportation or removal. "[A]s a practical matter, Judge, [defendant] may never get out because he'll be subject to deportation once his sentence is over based on the fact that he's not a citizen[.]" In denying PCR, Judge Vena recalled defense counsel's sentencing argument and concluded in his oral decision at the PCR hearing,
[T]here was no doubt that a person who was not a citizen of the United States who is convicted of rape, not to mention attempted murder in Morris County, would be deported forthwith upon his completion of his prison term. It is beyond anyone's doubt that Mr. Stephenson knew at the time of the plea and at the time of the sentencing that he was subject to deportation as a result of his entry of a guilty plea or any finding of guilt.
Addressing defendant's claim that his attorney performed an inadequate investigation, in particular his alleged failure to investigate the rape kit evidence, Judge Vena wrote:
Petitioner also argues that trial counsel was ineffective because he failed to investigate the "rape" kit which would have shown he was not the contributor of the DNA found at the scene of the crime in question. Alternatively, Petitioner argues that if the DNA is his the sexual relations between the victim and himself were of a consensual nature. In fact, the DNA reports regarding the sexual assault kit obtained in the present case matches the Petitioner's DNA profile when compared to the report from the Morris County DNA report submitted by Petitioner. Alternatively, under the circumstances of this case, two previous temporary restraining orders existed, the parties were separated and the injuries sustained by the victim at the time the sex kit was administered tend to prove that the sexual act in question was not consensual but in fact forced.
Petitioner further argues that trial counsel failed to investigate facts relating to the charges and failed to investigate witnesses whose names were provided by Petitioner. First, Petitioner argues that the location described to be a school at 105 Main Street in Orange was actually the Epiphany Day Care Center. Petitioner's argument that counsel's failure to resolve this issue results in ineffective assistance is without merit in that it is not material to the case, and such discrepancy would not have made any difference in the outcome of the case. Additionally, Petitioner does not provide the name of the witnesses or the nature of the testimony or evidence "they" would provide in furtherance of his defense.
Judge Vena also concluded that defendant had failed to establish a reasonable probability that but for counsel's errors, he would not have pled guilty.3 He noted defendant faced the risk of a consecutive sentence under the Essex indictment of twenty years, resulting in a total of thirty years and virtually a life in prison.
Defendant appeals and raises the following points for our consideration:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVENESS OF TRIAL COUNSEL; IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR THE PCR COURT TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW (Partially Raised Below).
A. Trial Counsel Failed To Inform Defendant That He Would Be Subject To Deportation By Pleading Guilty.
B. Trial Counsel Failed to Conduct An Adequate Investigation.
C. Trial Counsel Coerced Defendant To Plead Guilty.
II.
We affirm, substantially for the reasons set forth in the cogent oral and written opinions of Judge Vena. We add the following comments.
Defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as counsel 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. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed. 2d 674, 692 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). A defendant bears the burden to establish, by a preponderance of the evidence, both that he was denied his right to effective assistance of counsel, and suffered prejudice as a result. State v. Gaitan, supra, 209 N.J. at 350.
We turn first to defendant's argument that he was entitled at least to an evidentiary hearing regarding his claim that his attorney was ineffective by failing to advise him that he was subject to deportation. We are unpersuaded.
Defendant argues that his affirmative response to Question 17 in his plea form,4 as well as his counsel's statement at sentencing that he was subject to deportation, were not inconsistent with his statement that his trial counsel never advised him that he would be subject to deportation by pleading guilty. Moreover, he claims in the absence of the transcript, there is inadequate proof he was advised at the plea hearing of the deportation consequences of his plea. Defendant relies on our court's decision in State v. Gaitan, 419 N.J.Super. 365 (App. Div. 2011), which was subsequently reversed by the Supreme Court. 209 N.J. 339 (2012).
We defer to Judge Vena's finding that defendant knowingly, intelligently, and voluntarily entered his plea, confirming that he had no questions. We lack a transcript of defendant's plea hearing, but we draw no inferences in defendant's favor from the absence of a transcript, as defendant failed to seek a statement of the plea proceedings in lieu of a transcript pursuant to Rule 2:5-3(f). See State v. Izaguire, 272 N.J.Super. 51, 56-67 (App. Div.) (referring to procedure to settle statement of proceedings), certif. denied, 137 N.J. 167 (1994). Nor did he object to Judge Vena's reconstruction of the plea proceedings in the PCR hearing.
Neither Judge Vena nor the parties had the benefit of the Supreme Court's decision in Gaitan, supra. However, it is now settled that when defendant entered his plea in 2005, defense counsel was not required, as part of his 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. The Gaitan Court declined to give retroactive effect to the dictate in Padilla v. Kentucky, ___ U.S. ___, ___, 130 S.Ct. 1473, 1483, 176 L. Ed. 2d 284, 296 (2010) that "an attorney must tell a client when removal is mandatory — when consequences are certain[.]" Gaitan, supra, 209 N.J. at 380. Our Supreme Court held that Padilla established a new rule of law. Id. at 373.
Rather, defense counsel pre-Padilla was required to avoid affirmatively misinforming his client about the immigration consequences of his plea; he was also required not to compound the error by providing inaccurate and misleading information. 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, the Court held that Gaitan's attorney did not provide ineffective assistance of counsel under circumstances similar, but less compelling than those presented here. Gaitan, like defendant, was alerted to potential immigration consequences through the plea form, and counsel did not affirmatively provide false information.
Although Gaitan claims that he received no information, he concedes that the record contains evidence that he reviewed the plea form with counsel. Notations on the plea form indicate that Question 17 was addressed with him, and no evidence was proffered demonstrating that he received any misinformation on the subject. Therefore, Gaitan, at a minimum, was put on notice of the issue of potential immigration consequences through the plea form, which distinguishes this matter from Nuñez-Valdéz, where the defendant received false and affirmatively misleading information.
[Id. at 374.]
The Court rejected Gaitan's claim that "following the then-existing plea form resulted in misadvice... particularly where there is no evidence or claim that, at that time, defendant sought more information about immigration consequences and was then misinformed by counsel." Id. at 375. The Court concluded, "Because Gaitan neither received affirmative misadvice, nor provided any support for his bald assertion that he would not have pled had he known of the deportation consequences, he is not entitled to an evidentiary hearing." Id. at 376.
The same result is compelled here. Indeed, defendant's likely deportation was highlighted at sentencing, as we have discussed above. Defendant raised no questions or concerns when his attorney argued for a shorter sentence than contemplated by the plea agreement because he would likely be deported at the conclusion of his incarceration.
Defendant's claim that he would not have pled to sexual assault had he known the immigration consequences also rings hollow because defendant had already entered a plea to attempted murder, which triggered its own immigration consequences. Defendant has presented no evidence that he was uninformed about the immigration consequences of that previous plea, or that he has collaterally challenged the resulting conviction. Judge Vena correctly denied defendant's claim of ineffective assistance regarding the immigration consequences of his plea.
Defendant's remaining points on appeal warrant only brief additional comment. Defendant's argument that his attorney failed to conduct an adequate investigation was unsupported by cognizable evidence. "[B]ald assertions" are not sufficient to establish a prima facie case of ineffective assistance of counsel. State v. Cummings, 321 N.J.Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999). In particular, "when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Ibid.
Finally, we address defendant's argument that his attorney "coerced" him to plead guilty. Defendant asserted:
At my plea hearing I made it clear that I didn't want to plead guilty, and the judge told me he would give me one hour to consult with my attorney to think it over. My attorney would not answer any of my serious questions and eventually I was coerced into taking the guilty plea as that is all my attorney seemed to want me to do.
Judge Vena, who accepted defendant's plea, found it was entered voluntarily. Also, "[h]e was asked whether or not he had any questions for counsel or the court. He said he had none."
Defendant needs to do more than assert baldly that he was coerced. That his counsel was steadfast in urging defendant to plead guilty and accept a concurrent sentence for first-degree sexual assault hardly suffices, by itself, as coercion or prima facie evidence of ineffective assistance, particularly given the apparent strength of the State's case, and defendant's earlier plea to attempted murder.
Affirmed.
