STATE OF NEW JERSEY VS. ADRIAN JARRETT (95-09-0303, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-5605-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ADRIAN JARRETT,
Defendant-Appellant.
_________________________
Submitted January 15, 2019 – Decided May 8, 2019
Before Judges Rothstadt and Gilson.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 95-09-
0303.
Joseph E. Krakora, Public Defender, attorney for
appellant (Suzannah Brown, Designated Counsel, on
the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Susan L. Berkow, Special
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
In an earlier unpublished opinion, we vacated a trial court's denial of
defendant Adrian Jarrett's petition for post-conviction relief (PCR) after an
evidentiary hearing and remanded for a new hearing. See State v. Jarrett, No.
A-4044-12 (App. Div. June 16, 2015) (slip op. at 16). After conducting a second
hearing in accordance with our remand, the PCR court1 again denied defendant's
petition for PCR and defendant appealed. We now affirm.
As discussed in our earlier opinion, defendant, "a Jamaican citizen and a
legal permanent resident of the United States, pleaded guilty [in 1993] to one
count of distribution of a controlled dangerous substance, N.J.S.A. 2C:35-
5(b)(3)." Id. at 2. In accordance with his plea agreement, the court sentenced
him to probation.2
In his PCR petition, defendant claimed that plea counsel failed to properly
advise him about the deportation consequences of his plea. Id. at 3. After
conducting an evidentiary hearing, the first PCR court concluded that defendant
satisfied the first prong under Strickland v. Washington, 466 U.S. 668, 687, 694
1
A different judge presided at the second hearing.
2
Defendant later pled guilty to a new offense and a corresponding violation of
probation that led him to be sentenced to four years in prison.
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(1984), "because counsel twice circled 'N/A' as to question seventeen on the plea
forms,"3 when he should have known from "presentence reports . . . that
defendant was a Jamaican citizen." Id. at 4-5. However, as we described, the
PCR court concluded that defendant did not prove prejudice under Strickland's
second prong because defendant "was concerned about the sentence he would
be exposed to in the event that he went to trial and was convicted. . . . He was
not concerned with the probability or the possibility of deportation." Id. at 12.
After his first evidentiary hearing, defendant was deported to Jamaica. Id. at 5.
Nevertheless, defendant appealed the denial of PCR.
In response to defendant's appeal, we disagreed with the first PCR court's
determination because we concluded that its "factual finding that defendant was
not concerned about his immigration status [was] not supported by the
record . . . ." Id. at 13. Quoting from the United States Supreme Court's opinion
in Padilla v. Kentucky, 559 U.S. 356 (2010), "we vacate[d] the order denying
defendant's petition for [PCR] and remand[ed] the case to the trial court for an
evidentiary hearing to determine if defendant can 'convince the court that a
3
Question seventeen 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?"
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decision to reject the plea bargain would have been rational under the
circumstances.'" Id. at 16 (quoting Padilla, 559 U.S. at 372).
Judge Lorraine Pullen presided over the remand hearing at which
defendant was the only witness. Defendant, who was approximately thirty-two-
years-old at the time, testified that up until his deportation, he had lived in the
United States since he was about eleven-years-old and resided with his parents
and siblings. Defendant stated that he viewed the United States as his and his
family's home. According to defendant, he only travelled to Jamaica once when
he was twelve-years-old. Although he had family members who lived there,
defendant had virtually no communications with them.
Addressing his 1993 offense, when he was eighteen-years-old, defendant
stated that he was innocent of the charge. Further, if his plea counsel had
properly advised him about being deported as a result of his plea, he would not
have pled guilty and instead would have risked going to trial and being
sentenced to prison.
After considering the record and defendant's testimony, Judge Pullen
denied defendant's petition. She set forth her findings and explained the reasons
for denying the petition a second time in a fourteen-page written decision that
accompanied her June 30, 2017 order. Citing to our opinion in State v. Maldon,
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442 N.J. Super. 475, 486 (App. Div. 2011) and the United States Supreme
Court's opinion in Hill v. Lockhart, 474 U.S. 52, 59 (1985), the judge observed
that in order for defendant to prove that he suffered any prejudice under
Strickland's second prong, he had to
establish[] by a preponderance of the evidence that it
would have been reasonable not to take the [p]lea and
instead go to trial, and that he would have done so. . . .
[which] turn[ed] on whether the outcome of the
proceeding would have likely been more favorable than
the terms of the plea deal.
The judge then found that defendant's plea was "voluntary, knowing and
intelligent" and turned to the issue of prejudice. In her determination of whether
defendant was prejudiced by counsel's misinformation, the judge compared the
facts of this case to those in State v. McQuaid, 147 N.J. 464 (1997), and
concluded they were similar. As she explained, in McQuaid, a defendant's PCR
petition was rejected because he could not establish a "manifest injustice" where
he pled guilty to a crime for which he was facing life in prison with a sixty-year
period of parole ineligibility, but only was sentenced under his plea to forty
years with a thirty-year parole disqualifier. Judge Pullen compared those facts
to defendant's circumstances and stated the following about the strength of the
evidence against defendant and the benefit he received from his plea agreement:
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Much like the defendant in McQuaid, Petitioner here
also obtained significant benefits from his plea bargain.
Like McQuaid, the State's evidence against Petitioner
was substantial, and would have included statements
from officers from the [county] Narcotics Task force
who observed Petitioner selling cocaine, the seized
cocaine, and Petitioner's voluntary statement to police
that he was selling cocaine. Further like McQuaid,
Petitioner's potential exposure for a conviction of two
counts of possession of cocaine with intent to distribute
and one count of possession of cocaine have resulted in
harsher penal exposure than what was provided per the
terms of the plea. Thus, despite the attorney's
misinformation, the 1993 case resolved in Petitioner's
favor as he received a substantial benefit as a result of
his plea bargain.
In further support of her determination that under the circumstances it
would not have been reasonable for defendant to have rejected his plea offer,
the judge concluded that there was no evidence that a "manifest injustice" would
occur if defendant's plea was not vacated. She considered the evidence adduced
at the remand hearing and applied it to the factors delineated in State v. Slater,
198 N.J. 145, 157-58 (2009), finding no basis to vacate defendant's plea. Judge
Pullen specifically observed that defendant made no "colorable claim of
innocence" at the hearing other than an unsupported "bare assertion" that he was
innocent. She found that his testimony about his innocence was not credible in
light of the record. The record established that after his arrest, defendant
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admitted to police that he committed the charged offense and there was no
dispute that he provided a factual basis in support of his plea while under oath.
Addressing the strength of defendant's reason for wanting to withdraw his
plea, the judge found defendant incredible in his assertions that he would have
rejected the plea offer had he known he could be deported, especially in light of
the weight of the evidence against him that exposed him to a "high" chance of
incarceration as compared to the probation he received under the plea
agreement. The court also found that the plea agreement was "mutually
beneficial" to defendant and the State and that the State would be greatly
prejudiced by vacating the plea and going to trial based upon the extreme age of
the case. This appeal followed.
On appeal, defendant argues the following:
POINT I
THE LOWER COURT ERRED IN DENYING
[DEFENDANT'S] PETITION FOR [PCR].
In support of his argument, defendant explains that Judge Pullen's findings
"were so contrary to the evidence in the record that appellate intervention is
necessitated." He claims that she again concluded that defendant was only
"concerned with penal consequences" and not with the possibility of deportation
and its impact on him and his family. He also contends that the judge went
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beyond the scope of our remand because she analyzed his petition under Slater
in determining whether the enforcement of his plea was a "manifest injustice."
Our Supreme Court has established the standard of our review in PCR
cases where the PCR court held an evidentiary hearing:
In reviewing a PCR court's factual findings based on
live testimony, an appellate court applies a deferential
standard; it "will uphold the PCR court's findings that
are supported by sufficient credible evidence in the
record." Indeed, "[a]n appellate court's reading of a
cold record is a pale substitute for a trial judge's
assessment of the credibility of a witness he has
observed firsthand." However, a "PCR court's
interpretation of the law" is afforded no deference, and
is "reviewed de novo." "[F]or mixed questions of law
and fact, [an appellate court] give[s] deference . . . to
the supported factual findings of the trial court, but
review[s] de novo the lower court's application of any
legal rules to such factual findings."
[State v. Pierre, 223 N.J. 560, 576-77 (2015) (first,
second, fourth, and fifth alterations in original)
(citations omitted).]
Applying that standard, we conclude that defendant's argument is without
merit. We affirm substantially for the reason expressed by Judge Pullen in her
comprehensive written decision. We add only the following comments.
In Lee v. United States, 137 S. Ct. 1958 (2017) the Supreme Court stated
that in considering a claim of prejudice under Strickland's second prong,
"[c]ourts should not upset a plea solely because of post hoc assertions from a
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defendant about how he would have pleaded but for his attorney's deficiencies.
Judges should instead look to contemporaneous evidence to substantiate a
defendant's expressed preferences." Lee, 137 S. Ct. at 1967. The Court also
explained that
common sense (not to mention our precedent)
recognizes that there is more to consider than simply
the likelihood of success at trial. The decision whether
to plead guilty also involves assessing the respective
consequences of a conviction after trial and by plea. . . .
When those consequences are, from the defendant’s
perspective, similarly dire, even the smallest chance of
success at trial may look attractive.
[Id. at 1966 (citation omitted).]
The evidence presented by defendant at the remand hearing failed to
satisfy his burden by establishing that he was confronted at the time with
"similarly dire" consequences. At the hearing, other than defendant's bald
assertions, there was no evidence of any defenses that defendant could have
raised in 1993 to the facts that led to his arrest and charge. Moreover, the
potential consequences of taking a chance at trial were "markedly harsher" than
entering the plea. Id. at 1969. Without evidence of a viable defense, defendant
faced a prison sentence of at least five years with a mandatory period of parole
ineligibility as compared to the plea offer's recommendation for non-custodial
probation. The record demonstrated that it would not have been rational for
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defendant to reject the State's very favorable plea offer, proceed to trial, and run
the risk of serving several years in prison.
Affirmed.
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