Elawyers Elawyers
Ohio| Change

STATE v. HAYLES, A-1209-11T3. (2013)

Court: Superior Court of New Jersey Number: innjco20130417316 Visitors: 12
Filed: Apr. 17, 2013
Latest Update: Apr. 17, 2013
Summary: NOT FOR PUBLICATION PER CURIAM. Defendant Dorothy C. Hayles appeals from the trial court's denial of her petition for post-conviction relief (PCR) without an evidentiary hearing. She seeks reversal of that order, arguing her trial attorney was ineffective by affirmatively misadvising her about the immigration consequence of her plea. We reject defendant's argument and affirm. I. We discern the following facts from the record. Defendant was born in Jamaica in August of 1966, and moved to the
More

NOT FOR PUBLICATION

PER CURIAM.

Defendant Dorothy C. Hayles appeals from the trial court's denial of her petition for post-conviction relief (PCR) without an evidentiary hearing. She seeks reversal of that order, arguing her trial attorney was ineffective by affirmatively misadvising her about the immigration consequence of her plea. We reject defendant's argument and affirm.

I.

We discern the following facts from the record. Defendant was born in Jamaica in August of 1966, and moved to the United States in 1992. She was a conditional legal resident when she entered her guilty plea.

Defendant was arrested on October 5, 2005 and charged with second-degree manufacturing, distributing, or dispensing of marijuana, N.J.S.A. 2C:35-5a (1) (count one), third-degree distribution, dispensing, and possession of a controlled substance in a school zone, N.J.S.A. 2C:35-7 (count two), and, fourth-degree possession of marijuana, N.J.S.A. 2C:35-10a(3) (count three). Defendant pled guilty to third-degree possession of marijuana, with intent to distribute. N.J.S.A. 2C:35-5a (1) and N.J.S.A. 2C:35-5b (11).

Pursuant to the plea agreement, defendant was sentenced to four years probation and, as a condition of probation, was sentenced to 364 days in the county jail, together with fines and other mandatory penalties.

The record reflects defendant was advised of the possibility of adverse immigration consequences resulting from her conviction. The risk of deportation was initially addressed in the written plea agreement signed by defendant. Question 17 on the form 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?" Defendant's written response was "yes".

Additionally, defendant acknowledged at the hearing that she could read, write and understand English; she had discussed the questions on the plea agreement with her attorney, understood its content, and affirmed her answers were accurate. In response to the judge's questioning, defendant replied:

Q. Do you understand the plea agreement? A. Yes, sir. Q. Did you go over it with your lawyer? A. Yes, sir. Q. Are you satisfied with his services? A. Yes, sir.

The trial judge then directly addressed defendant's immigration status:

Q. Are you a citizen of this country? A. Not yet. Q. All right. You understand by pleading guilty there is a potential that you could be deported back to your country of origin. Do you understand that? A. Yes. Q. I can't hear you. A. Yes. Q. Okay, And knowing that ... could happen do you still want to plead guilty? A. Yes.

The trial court accepted defendant's plea and sentenced her in accordance with the terms of the plea agreement. Defendant served approximately three months in county jail and, thereafter, successfully completed probation. Defendant did not appeal her conviction.

After her release from county jail, defendant attempted to file an I-751 application1 to change her resident status from conditional legal resident to permanent legal resident of the United States based on a good faith marriage. Defendant thereafter learned her guilty plea rendered her permanently unable to stay in the United States and her deportation was mandatory. See U.S.C.A. § 1127(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).

On August 1, 2011, defendant filed a PCR petition seeking to vacate her 2006 conviction. Defendant argued her guilty plea was not voluntarily entered as a result of her attorney's misinformation regarding the consequences a conviction would have on her immigration status. Defendant alleged her rights were violated based on counsel's ineffectiveness which resulted in her making an ill-advised plea of guilty.

In her supporting affidavit defendant stated:

I agreed to enter my plea of guilty to these charges because my former attorney ... advised me that [if] I entered the plea, I would be able to remain in the country and keep my green card because my sentence was 364 days, less than a year, and because I would serve it at county jail which meant I would not be deported.... Although I was advised by the [j]udge that I "may be deported" as a result of my plea, I agreed to the plea because my attorney had assured me I would not be deported and that the plea would not prevent me from keeping my green card.

On September 22, 2011, the same judge who had accepted defendant's guilty plea conducted a hearing on defendant's petition. After considering oral argument, he found defendant failed to establish a prima facie case of ineffective assistance of counsel. In support of his conclusion the judge found:

This is not a situation where the record is devoid of any dissertation between the [c]ourt, her attorney or anybody else about immigration consequences. .... [A]nd there's nothing here that indicates that this young lady didn't understand the English language enough or was confused or — there's no certification indicating that [trial counsel] gave her contrary advice, such as in Padilla[.] There's nothing about this case, at least at this point, that I see that [trial counsel] didn't function as a reasonably prudent attorney would have under the circumstances. He got a pretty good deal in terms of the case ... I see nothing in this case that she didn't understand what that involved. .... It doesn't have the same legs as Padilla where [trial counsel] said don't worry about what the judge says. There's no certification here to that effect. Don't worry about what he says. You're not going to be deported, forget about you could be, forget it. In Padilla, that's what the [d]efense attorney told the defendant. .... I told her. She was not misinformed. She was told under ... many circumstances, at least four in the plea [al]locution. Never once did she ever speak up and indicate that she was misinformed by [trial counsel]. There's no certification to that effect. And I find there's no reason for a [Preciose2] hearing because there's no prima facie showing.

Defendant raises the following arguments on appeal:

POINT I THE LOWER COURT ERRED IN HOLDING DEFENDANT FAILED TO ESTABLISH A PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL, SINCE DEFENDANT ESTABLISHED SHE WAS PREJUDICED BY THE MISADVICE SHE RECEIVED FROM HER PRIOR ATTORNEY. POINT II THE LOWER COURT ERRED IN HOLDING THAT ADVISALS TO THE DEFENDANT THAT SHE COULD POTENTIALLY BE DEPORTED WERE SUFFICIENT, WHEN DEFENDAT IN FACT FACED MANDATORY DEPORATION AS A RESULT OF HER PLEA OF GUILTY.

II.

We review the legal conclusions of the PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004); see Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004)), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L. Ed. 2d 898 (2005); see also Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993). Where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Harris, supra, 181 N.J. at 421(citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L. Ed. 2d 232 (1991)).

Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); State v. Preciose, 129 N.J. 451, 459-60 (1992). Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J.Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.

Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462. In determining whether a prima facie claim has been established, the facts should be viewed "in the light most favorable to a defendant." Id. at 462-63. Additionally,"[a] petitioner must establish the right to such relief by a preponderance of the credible evidence." Id. at 459 (internal citations omitted). "To sustain that burden, specific facts must be alleged and articulated" to "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate [a] reasonable likelihood of succe[ss] under the test set forth in Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984)[.]" Preciose, supra, 129 N.J. at 463. Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed 2d at 693. Under the second prong, a defendant must demonstrate "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 two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "`a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance [.]'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

In the context of a request to vacate a guilty plea, a defendant must show "a reasonable probability that, but for counsel's errors, he [or she] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). We consider defendant's claims in light of these standards.

Defendant argues the trial court erred in holding that she failed to establish a prima facie case of ineffective assistance of counsel. As part of her PCR petition, defendant submitted an affidavit detailing the misinformation she was provided by her attorney regarding the immigration consequences of her plea. Defendant states her attorney advised her if she pled guilty she would be able to keep her green card, remain in the country and would not be subject to deportation. Defendant argues this misinformation was a factor in her decision to plead guilty.

Defendant relies upon State v. Nunez Valdez, 200 N.J. 129 (2009), in support of her position. Nunez-Valdez involved a criminal defendant who pled guilty to fourth-degree criminal sexual contact and was deported based on his plea. Id. at 131. The defendant argued for relief based on trial counsel's act of providing false and misleading information regarding the immigration consequences of a guilty plea. Ibid. The 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 deportation consequences of his plea. Id. at 138-43.

The facts in Nunez-Valdez are clearly distinguishable from the facts at issue. In Nunez-Valdez, the defendant claimed he was unaware of the immigration consequences of his guilty plea. Id. at 132-33. He testified his attorney failed to advise him of any potential consequences that his plea could have on his immigration status. Ibid. The defendant, who neither spoke nor read English, further stated the plea agreement was not translated from English into Spanish prior to his signing same and, thus, he was unaware that Question 17 informed him that he may be deported as a result of his guilty plea. Id. at 133. Moreover, while his trial counsel testified that he was "pretty sure" he talked about deportation; he could not recall the substance of the conversation. Id. at 134.

In addition, the record in Nunez-Valdez failed to contain evidence of the court addressing the defendant with respect to the potential immigration consequences of his guilty plea. Rather, the defendant testified the only advice he received in response to his questions about the immigration consequences of his plea was his attorney's assurance that "`nothing like that' was ever going to happen." Id. at 132. The Court found as a result of this misinformation the defendant was denied effective assistance of counsel and was therefore permitted to withdraw his plea. Id. at 143.

Unlike Nunez-Valdez, defendant here was clearly advised of the potential immigration consequences that would flow from a plea of guilty. She was alerted of this fact in the plea agreement, which she read, understood, and signed. Defendant was also advised by the court she could be deported as a result of her plea, after which she assured the court she understood this potential consequence and, knowing this, still wished to plead guilty. Thus, unlike Nunez-Valdez, defendant was apprised of the potential immigration consequences of her plea prior to entering it. These factors stand in stark contrast to the facts of Nunez-Valdez.

Additionally, the record does not support defendant's claim that she was misinformed by her attorney. At no time during the court's questioning did defendant offer that her attorney had advised her she would not be subject to deportation based on the recommended sentence. Instead, defendant assured the court she understood she may be subject to deportation as a result of her plea and, nonetheless, wished to plead guilty.

Defendant fails to proffer any explanation as to why she neglected to advise the trial judge, despite his warnings about the immigration consequences of her plea, that her attorney had assured her deportation did not apply in her case. Her petition and affidavit are silent on the issue.

Further, she does not offer a statement from counsel confirming the claimed misadvice. Defendant's petition also fails to set forth what efforts, if any, she made in an attempt to obtain such supporting documentation. Compare, State v. Taccetta, 351 N.J.Super. 196, 199, 201 (App. Div.), certif. denied, 174 N.J. 544 (2002) (defendant's petition for PCR on the ground of ineffective counsel was remanded for an evidentiary hearing when accompanied by a certification from trial counsel acknowledging that he had not correctly calculated the potential sentencing consequences when he advised the defendant in connection with plea negotiations).

Defendant's claim that she was misinformed by her attorney is also undermined by her answer to Question 20 of the plea agreement. Question 20 provides: "List any other promises or representations that have been made by you, the prosecutor, your defense attorney, or anyone else as a part of this plea of guilty." Defendant answered "N/A" to the question. Again, when provided the opportunity to advise the court that her attorney had represented to her, as part of the plea, that she would not be deported, defendant neglected to do so.

These facts, taken as a whole, clearly belie defendant's claim that she received erroneous advice from counsel. We find defendant's unsupported claim of misinformation is an attempt to negate the harsh federal immigration consequences resulting from her plea. In reaching this conclusion, we note defendant did not immediately file her petition upon notice her application for a change in immigration status was affected by her plea. Rather, she waited years before she filed her petition. She also has not asserted her innocence of the offense for which she was convicted. Nor does she contend that she has a viable defense or that the State's proofs of guilt to the charges were lacking.

We conclude defendant has offered nothing more than her "bald assertion," made years after her plea was entered, that her attorney had misinformed her as to the deportation consequences of her plea in the hope PCR would be granted. As such, we find defendant's proofs insufficient to establish counsel's performance was deficient under the first prong of the Strickland test.

For completeness, we also note little is offered to establish Strickland's second prong. Defendant's bare assertion that she would not have entered her guilty plea had she known she would not be permitted to become a lawful permanent resident standing alone does little to demonstrate a reasonable probability that, but for counsel's misinformation, defendant would not have accepted the plea bargain. See Cummings, 321 N.J.Super. 154, 169-170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (holding "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel").

While defendant argues now that avoiding deportation was her main concern, the record does not support such a finding. Rather, the evidence suggests defendant's chief concern at the time of plea was avoidance of a long prison sentence as she was the mother of a very young child whom she cared for. Overall, this record lacks credible evidence that "there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different" and defendant would not have pled guilty and would have insisted on going to trial. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

We conclude defendant's proofs insufficient to establish a prima facie showing of ineffective assistance of counsel under Strickland, and, as such, the PCR court did not err by failing to conduct an evidentiary hearing on his petition. Preciose, supra, 129 N.J. at 462.

Affirmed.

FootNotes


1. Federal Form I-751 is entitled "Petition to Remove the Conditions of Residency." The purpose of the form allows "a conditional resident who obtained [residency] status through marriage to apply to U[nited] S[tates] Citizenship and Immigration Services (USCIS) to remove the conditions on his or her residence." Instructions for I-751, Petition to Remove Conditions on Residence, found at http://www.uscis.gov/files/form/i-751instr.pdf (last checked April 9, 2013).
2. State v. Preciose, 129 N.J. 451, 462 (1992).
Source:  Leagle

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer