STATE OF NEW JERSEY VS. CLIVE A. ROSE (13-06-0765, MIDDLESEX COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-4442-17T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    CLIVE A. ROSE,
    Defendant-Appellant.
    __________________________
    Submitted October 15, 2019 – Decided December 16, 2019
    Before Judges Moynihan and Mitterhoff.
    On appeal from the Superior Court of New Jersey, Law
    Division, Middlesex County, Indictment No. 13-06-
    0765.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Joseph Anthony Manzo, Designated
    Counsel, on the brief).
    Christopher L.C. Kuberiet, Acting Middlesex County
    Prosecutor, attorney for respondent (David M. Liston,
    Special Deputy Attorney General/Acting Assistant
    Prosecutor, of counsel and on the brief).
    PER CURIAM
    Defendant Clive A. Rose appeals from an April 30, 2018 order denying
    his petition for post-conviction relief (PCR) without an evidentiary hearing. We
    affirm.
    We glean the following facts from the record. On March 22, 2013,
    defendant was arrested by police for possession of cocaine with intent to
    distribute in a quantity of less than one-half ounce.      On June 4, 2013, a
    Middlesex County grand jury indicted defendant for third-degree possession of
    a dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree
    distribution of a CDS, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count two); third-
    degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5a(1) and
    2C:35-5b(3) (count three); and possession of paraphernalia with intent to
    distribute, N.J.S.A. 2C:36-3 (count four).
    On December 9, 2013, defendant executed a written plea agreement in
    which he agreed to plead guilty to count two of the indictment, third-degree
    distribution. In exchange, the State agreed to recommend that defendant be
    sentenced to a four-year term of imprisonment with a two-year period of parole
    ineligibility, and that all remaining counts of the indictment be dismissed. That
    same day, defendant pled guilty.       Consistent with the terms of the plea
    agreement, the court sentenced defendant to a four-year term of imprisonment
    2
    A-4442-17T4
    with a two-year period of parole ineligibility. By order dated February 10, 2015,
    we affirmed defendant's sentence.
    On October 31, 2017, defendant filed a petition for PCR based on
    ineffective assistance of counsel. 1    Defendant alleged that there was an
    inadequate factual basis for the plea adduced at the hearing; and that trial
    counsel failed to conduct an adequate investigation, failed to argue certain
    mitigating factors, and never advised him that he was pleading guilty to an
    offense that would require his mandatory deportation. In connection with his
    claim that he was not advised of the immigration consequences of his plea,
    defendant certified that he communicated to his defense attorney that he "was
    not a United States citizen, [and] that [he] was a permanent resident and citizen
    of England." Defendant certified that he was provided no notice of the collateral
    consequence of his plea until he was already sentenced and incarcerated, and
    that had he known of the immigration consequences of his plea he would not
    have pled guilty.
    On April 30, 2018, after hearing arguments, Judge Alberto Rivas found
    defendant failed to make a prima facie case of ineffective assistance of counsel ,
    1
    This PCR application was a resubmission of a prior petition filed in March
    2015 that defendant voluntarily withdrew.
    3
    A-4442-17T4
    and entered an order denying his petition without an evidentiary hearing. In so
    ruling, pertinent to the sole issue on this appeal, Judge Rivas found that
    defendant had stated "on multiple times in different settings," including at the
    time of his arrest, in his presentence report, and under oath at the time of his
    plea, that he was a United States citizen. The judge noted that under the
    circumstances, defendant's bald assertions that he told his attorney that he was
    not a citizen and that he had been confused didn't "seem logical, reasonable, or
    truthful." Judge Rivas further found that even assuming defendant was not
    aware that he faced mandatory deportation as a result of his plea, it was unlikely
    defendant would have turned down the favorable offer of four years with a two-
    year period of parole ineligibility given that he was exposed to a ten-year term
    with five years of parole ineligibility on a mandatory extended term, which the
    State agreed to waive as part of the plea deal.
    This appeal followed.     On appeal, defendant presents the following
    argument for our review:
    POINT I
    THE LOWER COURT ERRED IN FINDING THAT
    THE    PETITIONER    HAD    EFFECTIVE
    REPRESENTATION OF COUNSEL CONCERNING
    THE IMMIGRATION CONSEQUENCES OF HIS
    PLEA AND ERRED BY DENYING AN
    EVIDENTIARY HEARING.
    4
    A-4442-17T4
    We review the PCR court's legal conclusions or interpretations de novo.
    State v. Nash, 
    212 N.J. 518
    , 540-41 (2013). Since the PCR court did not hold
    an evidentiary hearing, this court also reviews de novo the PCR court's factual
    findings. State v. Harris, 
    181 N.J. 391
    , 421 (2004) (citation omitted). We
    review a PCR court's determination to proceed without an evidentiary hearing
    for an abuse of discretion. State v. Brewster, 
    429 N.J. Super. 387
    , 401 (App.
    Div. 2013) (citation omitted).
    A PCR petitioner faces the burden of establishing the grounds for relief
    by a preponderance of the credible evidence. State v. Goodwin, 
    173 N.J. 583
    ,
    593 (2002). "Any factual assertion that provides the predicate for a claim of
    relief must be made by an affidavit or certification pursuant to Rule 1:4-4 and
    based upon personal knowledge of the declarant before the court may grant an
    evidentiary hearing." R. 3:22-10(c).
    A defendant shall be entitled to an evidentiary hearing
    only upon the establishment of a prima facie case in
    support of post-conviction relief, a determination by the
    court that there are material issues of disputed fact that
    cannot be resolved by reference to the existing record,
    and a determination that an evidentiary hearing is
    necessary to resolve the claims for relief. To establish
    a prima facie case, defendant must demonstrate a
    reasonable likelihood that his or her claim, viewing the
    facts alleged in the light most favorable to the
    defendant, will ultimately succeed on the merits.
    5
    A-4442-17T4
    [R. 3:22-10(b).]
    "[I]n order to establish a prima facie claim, a petitioner must do more than
    make bald assertions that he was denied the effective assistance of counsel. He
    must allege facts sufficient to demonstrate counsel's alleged substandard
    performance." State v. Cummings, 
    321 N.J. Super. 154
    , 170 (App. Div. 1999),
    
    162 N.J. 199
     (1999). "[A] defendant is not entitled to an evidentiary hearing if
    the 'allegations are too vague, conclusory, or speculative to warrant an
    evidentiary hearing[.]' Rather, defendant must allege specific facts and evidence
    supporting his allegations." State v. Porter, 
    216 N.J. 343
    , 355 (2013) (alterations
    in original) (quoting State v. Marshall, 
    148 N.J. 89
    , 158 (1997)).
    Ordinarily, to establish an ineffective-assistance-of-counsel claim, a
    convicted defendant must demonstrate: (1) counsel's performance was deficient,
    and (2) the deficient performance actually prejudiced the accused's defense.
    Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984); see State v. Fritz, 
    105 N.J. 42
    , 58 (1987) (adopting two-part Strickland test in New Jersey). To satisfy the
    first prong of the Strickland test, a defendant must show "that counsel made
    errors so serious that counsel was not functioning as the 'counsel' guaranteed
    . . . by the Sixth Amendment." Fritz, 
    105 N.J. at 52
     (quoting Strickland, 
    466 U.S. at 687
    ).    To satisfy the second prong, a defendant must show by a
    6
    A-4442-17T4
    "reasonable probability" that the deficient performance affected the outcome of
    trial. Id. at 60-61 (quoting Strickland, 
    466 U.S. at 694
    ).
    In connection with a PCR application alleging ineffective assistance of
    counsel, non-citizen defendants may be relieved of their burden to satisfy the
    Strickland test if trial counsel failed to advise a client of the immigration
    consequences of pleading guilty to an offense. Our Supreme Court, adopting
    the standard established by the United States Supreme Court in Padilla v.
    Kentucky, 
    559 U.S. 356
     (2010), held that
    counsel's failure to point out to a noncitizen client that
    he or she is pleading to a mandatorily removable
    offense will be viewed as deficient performance of
    counsel; affirmative advice must be conveyed as part of
    the counseling provided when a client enters a guilty
    plea to a state offense that equates to an aggravated
    felony, triggering eligibility for mandated removal.
    [State v. Gaitan, 
    209 N.J. 339
    , 380 (2012).]
    Gaitan's presumption of deficient representation, however, is simply not
    triggered where, as here, the defendant affirmatively misrepresents his
    immigration status. In that regard, our de novo review of the record reveals that
    at the plea hearing,2 defendant's attorney asked him, "Are you a citizen of the
    2
    PCR Judge Rivas also conducted defendant's December 9, 2013 plea hearing
    and his February 20, 2014 sentencing hearing.
    7
    A-4442-17T4
    United States?" Defendant answered, under oath, "Yes." Before accepting
    defendant's plea, Judge Rivas once again asked defendant to confirm that he was
    a United States citizen. Again defendant responded, under oath, "Yes." The
    plea forms signed by defendant and referenced at the plea hearing also asked
    defendant, "Are you a citizen of the United States?" The answer "Yes" was
    circled next to that question, and the page on which the question appeared was
    initialed by defendant. Defendant denied having "any difficulty writing, reading
    or . . . understanding the English language;" denied having "ever been diagnosed
    as having any mental disease or disability;" and denied being "under the
    influence of any medication that affects [his] ability to understand what" was
    happening at the plea hearing.
    At the sentencing hearing, defendant's counsel stated on the record that he
    had an opportunity to review defendant's presentence report with defendant, and
    that neither he nor defendant had any objection to it.        The report listed
    defendant's place of birth as "Alabama."
    Thus, the record amply supports the judge's finding that defendant's bald
    assertions that he told his trial counsel he was not a citizen, and that he was
    confused by the foregoing questioning, were contradicted by defendant's own
    statements and were otherwise not "logical, reasonable or truthful." We agree
    8
    A-4442-17T4
    and conclude that Judge Rivas did not abuse his discretion in denying defendant
    an evidentiary hearing as defendant failed to establish that his attorney's
    performance was deficient. 3
    To the extent that we have not specifically addressed any other issues
    raised by defendant, we find they lack sufficient merit to warrant discussion in
    a written opinion. R. 2:11-3(e)(1)(E).
    Affirmed.
    3
    We also agree with Judge Rivas's conclusion that, even assuming defendant
    could establish a prima facie case, he failed to show "there is a reasonable
    probability that, but for counsel's errors, [the defendant] would not have pled
    guilty and would have insisted on going to trial." State v. Nuñez-Valdéz, 
    200 N.J. 129
    , 139 (2009) (alteration in original) (quoting State v. DiFrisco, 
    137 N.J. 434
    , 457 (1994)). See State v. O'Donnell, 
    435 N.J. Super. 351
     (App. Div. 2014)
    (holding a defendant "must convince the court that a decision to reject the plea
    bargain would have been rational under the circumstances.") (quoting Padilla v.
    Kentucky, 
    559 U.S. at 372
    ). Given the lengthy mandatory extended-term
    sentence that defendant would have been exposed to if convicted at trial, it is
    highly unlikely he would have taken that risk given the very favorable plea deal.
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    A-4442-17T4