STATE OF NEW JERSEY VS. SELWIN O. BASCOMÂ (11-05-0993, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3231-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SELWIN O. BASCOM,
Defendant-Appellant.
———————————————————————————————
Submitted May 25, 2017 – Decided July 6, 2017
Before Judges Lihotz and Hoffman.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Accusation No.
11-05-0993.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Ian C. Kennedy,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Selwin Bascom appeals from a Law Division order
denying his petition for post-conviction relief (PCR), seeking to
withdraw his guilty plea and vacate his conviction and sentence
for possession of marijuana with intent to distribute, N.J.S.A.
2C:35-5(a)(1), (b)(12). Although the record shows defendant told
probation officials and the trial court he was a United States
citizen, he now admits he is not. In his certification
accompanying his PCR petition, defendant states he told his plea
counsel that he was not a United States citizen. Based upon this
assertion, defendant claims he received ineffective assistance
when his counsel failed to correct the record or inform him of the
legal consequences regarding his immigration status. Because the
record does not support defendant's recent bald assertions, we
reject defendant's arguments and affirm the PCR court's order.
A.
We discern the following facts from the record. On April 7,
2011, a police officer observed a vehicle cross into the left-hand
shoulder on the Palisades Interstate Parkway. As the vehicle
reentered the left lane, it nearly forced another vehicle off the
road. Because of rush-hour traffic, the officer had to wait
several minutes before pursuing the vehicle. After the officer
approached the vehicle, it quickly moved from the left to right
lane. At the same time, the officer observed something thrown
from the rear passenger window. The officer consequently signaled
the vehicle to pull over.
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When the officer walked up to the vehicle, he saw defendant
in the rear passenger seat. The officer asked defendant what he
had thrown out the window; defendant replied, "Nothing." The
officer also smelled "raw" marijuana and saw "green flakes of
suspected marijuana" on the middle console. As a result, the
officer called for backup.
Once another officer arrived, the police searched defendant
but found nothing. After a third officer came to the scene, the
police searched defendant a second time and found eleven small
bags containing marijuana. The police therefore arrested
defendant and placed him in a patrol car. When the police returned
to headquarters, they suspected defendant was trying to hide
something because he had been moving around a lot in the back of
the patrol car. When they searched the back of the patrol car
after removing defendant, they found forty-nine grams of cocaine.
On May 25, 2011, defendant pled guilty to fourth-degree
possession of marijuana with intent to distribute, N.J.S.A. 2C:35-
5(a)(1), (b)(12), pursuant to a plea agreement with the State,
which provided for a recommend two-year probationary term. During
the plea hearing, the court asked defendant, "Are you a U.S.
citizen?" Defendant replied, "Yes." Defendant also said he
provided truthful answers on the plea form and voluntarily signed
it of his own free will. On the plea form, defendant circled
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"Yes" after the question, "Are you a citizen of the United States?"
He also circled "Yes" after the question, "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 presentence report stated defendant was born in
Guyana, South America. It also stated defendant was a United
States citizen. On July 15, 2011, the court sentenced defendant
to two years of probation. Defendant did not file a direct appeal.
On August 22, 2014, defendant filed a pro se PCR petition.
Defendant included a certification stating he had told his trial
counsel he is not a United States citizen, and his counsel failed
to tell the court this or advise him of the immigration
consequences of his plea. On September 4, 2014, the PCR court
assigned defendant an attorney, who submitted a brief in support
of the application for PCR.
On December 4, 2015, the PCR court heard oral argument.
Defendant did not appear because he had been deported to Guyana.
After summarizing the relevant facts and applicable law, the court
concluded, "[T]here is no indication, other than [defendant's]
bald . . . allegation that the attorney was aware that he was not
a United States citizen, . . . support[ing] a hearing to . . .
determine whether or not the PCR should be granted." The court
therefore concluded defendant had failed to establish a prima
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facie case of ineffective assistance of counsel. Defendant
appealed, presenting the following arguments for consideration:
POINT I
IN POST-CONVICTION RELIEF, WHEN THE DEFENDANT
CERTIFIES UNDER OATH THAT HE ADVISED TRIAL
COUNSEL THAT HE WAS NOT A CITIZEN OF THE UNITED
STATES AND THAT TRIAL COUNSEL NOT ONLY FAILED
TO ADVISE HIM OF THE IMMIGRATION CONSEQUENCES
OF HIS GUILTY PLEA BUT ALSO REMAINED MUTE AT
THE PLEA HEARING AND FAILED TO CORRECT THE
RECORD WHEN DEFENDANT MISTAKENLY ADVISED THE
TRIAL COURT THAT HE WAS A CITIZEN, A PRIMA
FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF
COUNSEL IS MADE IF THE STATE DOES NOT FIND IT
APPROPRIATE TO SUBMIT AN AFFIDAVIT OR
CERTIFICATION FROM TRIAL COUNSEL CONTESTING
DEFENDANT'S CLAIMS.
POINT II
THE PCR COURT'S RULINGS VIOLATED DEFENDANT'S
RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS
GUARANTEED BY THE SIXTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.
B.
On this appeal, we review the trial court's decision de novo.
State v. Harris, 181 N.J. 391, 421 (2004), cert. denied, 545 U.S.
1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Having reviewed
the record, we find no basis to disturb the court's decision.
Based on the record, the court's legal conclusions are
unassailable.
Defendant argues he "was entitled to post-conviction relief
because he established that the performance of his trial counsel
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was deficient and he was prejudiced thereby." On this record,
defendant's argument lacks sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2). We add the following
comments.
If defense counsel provides affirmatively misleading or false
advice about the immigration consequences of a guilty plea, that
advice may constitute ineffective assistance of counsel. State
v. Nuñez-Valdéz, 200 N.J. 129, 131 (2009). However, this court
cannot expect a defense attorney to provide advice about possible
immigration problems if a client falsely claims he is a United
States citizen. In this case, the record shows defendant told
probation officials and the trial court that he is a United States
citizen. He also said he is a United States citizen on his plea
form. This same form informed defendant that he could be deported
if he pled guilty. The record does not support defendant's recent
bald assertions that he told his plea counsel otherwise. See
State v. Jones, 219 N.J. 298, 311-12 (2014) (stating "'bald
assertions' are not enough" to warrant an evidentiary hearing
regarding a PCR petition). The record fails to support defendant's
assertion that he received ineffective assistance of counsel. See
State v. DiFrisco, 137 N.J. 434, 456-57 (1994); State v. Fritz,
105 N.J. 42, 50 (1987).
Affirmed.
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