STATE OF NEW JERSEY VS. EMMANUEL T. NEEWILLY (11-09-2282, 11-12-2977 AND 12-08-1847, ATLANTIC COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5825-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
EMMANUEL T. NEEWILLY,
Defendant-Appellant.
Submitted November 19, 2019 – Decided December 30, 2019
Before Judges Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment Nos. 11-09-
2282, 11-12-2977, and 12-08-1847.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (Nicole Lynn Campellone, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Emmanuel Neewilly appeals from the denial of his post-
conviction relief (PCR) petition. Defendant contends the ineffective assistance
of three different lawyers, who represented him on three indictments, caused
him to plead guilty without knowledge of deportation consequences.1 He asserts
an evidentiary hearing was required to hear the testimony of the lawyers and
consider the "substance of their legal advice." Because we find defendant has
not demonstrated a prima facie showing of ineffective counsel, we affirm.
Defendant pled guilty under Atlantic County Indictment 11-09-2282 to
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). On the
same day, he pled guilty under Atlantic County Indictment 11-12-2977 to third-
degree receiving stolen property, N.J.S.A. 2C:20-7. Prior to sentencing,
defendant was charged in a third indictment, and he pled guilty to second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b).
On the plea forms executed prior to the guilty pleas on the first two
indictments, defendant acknowledged he was not a citizen of the United States
and that he understood a guilty plea could result in his removal from this
country. Defendant advised on the forms he was aware he could consult with
an attorney about his immigration status. He indicated he had in fact discussed
1
Defendant has been deported to Liberia.
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the immigration consequences of a guilty plea with his plea counsel. On the
forms, defendant declined the opportunity to consult with counsel further about
the immigration issues and indicated he wished to plead guilty.
At the plea hearing on the first two indictments in February 2012,
defendant was represented by separate counsel on each indictment. One of the
attorneys stated to the court:
The only other issue [is] that he is not a U.S. Citizen.
He is a permanent resident. He understands that by
virtue of this plea he may be deported. He has
consulted and/or will further consult with immigration
attorneys. He does not wish to stop and do that. He
wishes to proceed today.
Defendant agreed verbally that he understood what his attorney had
communicated to the court, he agreed with it, and he wished to proceed. The
second attorney then told the court that he was referring defendant to a "good
immigration attorney" which was why they were requesting a three-month delay
for the sentencing hearing.
During the plea colloquy with the court, defendant reaffirmed he
understood he could seek the services of an immigration lawyer prior to his
guilty plea and he intended to speak to counsel but he wanted to proceed with
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the plea hearing. After accepting the plea, the court scheduled the sentencing
hearing for May 18, 2012.2
A third attorney represented defendant at the October 22, 2012 plea
hearing regarding the third indictment. During the colloquy, defendant again
acquiesced that he understood a guilty plea could result in his deportation, and
that he could seek specialized immigration advice. He told the court he had
discussed the immigration consequences with his attorney, and he wished to
enter a guilty plea.
Defendant was sentenced under Indictment 11-09-2282 to five years in
state prison, with a three-year period of parole ineligibility. The sentences on
the other two indictments ran concurrently with the first-imposed prison term.
After defendant filed his PCR petition and certification, counsel was
assigned, who provided a supplemental brief and certification. Following oral
argument, Judge Jeffrey J. Waldman issued a comprehensive written opinion
and order denying the petition.
In considering defendant's arguments, Judge Waldman reviewed the plea
forms signed by defendant and the plea hearing transcripts. He found that
defendant had not provided any evidence to support his contention that his
2
The sentencing took place on June 15, 2012.
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counsel were ineffective for failing to inform him of the immigration
consequences of his plea. To the contrary, the judge noted defendant's
allegations were "contradicted by the record of the plea hearing, where he
indicated that he understood his right to seek advice from an immigration
attorney about the effects of his guilty plea."
Judge Waldman stated further:
A clear escape-valve was provided to the defendant
here. It was contemplated that he [would] speak with
immigration counsel between the plea and sentence,
and he was given an extended period of time to do so.
Not only does it appear that he did not avail himself of
that opportunity, but he obtained additional charges
during that time, for which he ultimately pled guilty.
The judge concluded defendant had not established a prima facie case of
ineffective assistance of counsel and, therefore, an evidentiary hearing was not
warranted.
On appeal, defendant presents a single argument for our review:
POINT ONE
THIS MATTER SHOULD BE REVERSED AND
REMANDED TO THE PCR COURT FOR AN
EVIDENTIARY HEARING AS TESTIMONY IS
NEEDED FROM ALL THREE LAWYERS TO
DETERMINE WHY THEY FAILED TO REQUEST
AN ADJOURNMENT FOR THEIR CLIENT TO
SPEAK WITH AN IMMIGRATION LAWYER PRIOR
TO PLEADING GUILTY AND TO DETERMINE
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THE SUBSTANCE OF THEIR ADVICE TO THEIR
CLIENT REGARDING DEPORTATION.
The standard for determining whether counsel's performance was
ineffective for purposes of the Sixth Amendment to the United States
Constitution was formulated in Strickland v. Washington, 466 U.S. 668 (1984),
and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). To
prevail on an ineffective assistance of counsel claim, defendant must meet the
two-prong test establishing both that: (l) counsel's performance was deficient
and he or she made errors that were so egregious that counsel was not
functioning effectively as guaranteed by the Sixth Amendment; and (2) the
defect in performance prejudiced defendant's rights to a fair trial such that there
exists a "reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Strickland, 466 U.S. at
687, 694.
We are satisfied from our review of the record that defendant failed to
demonstrate the ineffectiveness of trial counsel under the Strickland-Fritz test.
It is now well-established that trial counsel must inform a non-citizen client
when a plea carries a risk of deportation. Padilla v. Kentucky, 559 U.S. 356,
364 (2010); State v. Nunez-Valdez, 200 N.J. 129, 131 (2009); State v. Gaitan,
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209 N.J. 339, 380 (2012) (applying Padilla prospectively). All three plea
counsel here informed defendant that his plea carried the risk of deportation.
Prior to both plea hearings, defendant completed forms affirming his
understanding that a guilty plea could result in his deportation, and that he had
the right to consult with an immigration attorney. Defendant acknowledged on
the forms that plea counsel discussed the immigration consequences with him.
During the colloquy in February 2012, both defense counsel advised the court
they had discussed the immigration situation with defendant. One stated he had
referred defendant to a specific attorney for immigration counsel and advice.
The attorneys requested a May sentencing date to give defendant adequate time
to consult with immigration counsel. The State and court agreed; the sentencing
did not take place until mid-June 2012.
Prior to the June sentencing, defendant was indicted on a new charge. He,
again, completed plea forms and acknowledged during the plea hearing that he
understood the immigration consequences of a guilty plea and his right to seek
specialized immigration counsel.
The record belies defendant's argument that his counsel were deficient in
any respect. Because defendant has not demonstrated a prima facie case of
ineffective representation, he is not entitled to an evidentiary hearing.
Affirmed.
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