STATE OF NEW JERSEY VS. LESLIE JOSEPH (11-03-0155 AND 15-09-0513, SOMERSET COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2018 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-3959-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LESLIE JOSEPH,
Defendant-Appellant.
_____________________________
Submitted April 23, 2018 – Decided July 16, 2018
Before Judges Fasciale and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment No.
11-03-0155, Accusation No. 15-09-0513.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark Zavotsky, Designated
Counsel, on the brief).
Michael H. Robertson, Somerset County
Prosecutor, attorney for respondent (Lauren
Martinez, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Leslie Joseph appeals from an order denying his
petition for post-conviction relief (PCR) without an evidentiary
hearing. Defendant maintains that his trial counsel rendered
ineffective assistance when he pled to third-degree endangering
the welfare of a child. Judge Robert A. Ballard, Jr. entered the
order and issued a twenty-three page written statement of reasons.
We affirm.
In a single point, defendant argues:
POINT I
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL FOR COUNSEL'S MISADVICE AS TO THE
MATERIAL ELEMENT OF HIS PLEA THEREBY ENTITLING
HIM TO AN EVIDENTIARY HEARING AND POST
CONVICTION RELIEF.
After serving his sentence,1 defendant was released to the
United States Department of Homeland Security to be subjected to
deportation proceedings. He then filed a PCR petition alleging
counsel's ineffectiveness for not properly advising him about the
immigration consequences of his guilty plea.
To show ineffective assistance of counsel, defendant must
demonstrate two things. First, counsel's deficient performance
was so egregious that counsel was not functioning effectively as
guaranteed by the Sixth Amendment of the United States
Constitution. Strickland v. Washington, 466 U.S. 668, 687 (1984).
1
Due to a prior guilty plea to an accusation for third-degree
perjury by making material false statements, and in accordance
with his plea agreement for endangering, he was sentenced to an
aggregate flat four-year time served sentence.
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Second, the performance deficiency 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." Id. at 694; State v. Fritz,
105 N.J. 42, 52 (1987).
In the context of a guilty plea, the standard to establish
ineffective assistance of counsel is somewhat modified. "[A]
defendant can show ineffective assistance of counsel by proving
that his [or her] guilty plea resulted from 'inaccurate information
from counsel concerning the deportation consequences of his [or
her] plea.'" State v. Brewster, 429 N.J. Super. 387, 392 (App.
Div. 2013) (quoting State v. Nunez-Valdez, 200 N.J. 129, 143
(2009)).
Plea counsel's duty includes an affirmative responsibility
to inform a defendant entering a guilty plea of the relevant law
pertaining to mandatory deportation. Padilla v. Kentucky, 559
U.S. 356, 368-69 (2010). This court has made clear that counsel's
"failure to advise a noncitizen client that a guilty plea will
lead to mandatory deportation deprives the client of the effective
assistance of counsel guaranteed by the Sixth Amendment." State
v. Barros, 425 N.J. Super. 329, 330-31 (App. Div. 2012) (citing
Padilla, 559 U.S. at 369). The Padilla rule applies because
defendant pled guilty in September 2015.
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Defendant's contention that he was unaware of the immigration
consequences of his plea because counsel advised him that the plea
would "close the matter for good," is belied by the record, which
reflects that both counsel and the plea judge advised him he would
be deported. After declining the judge's invitation to seek advice
from an immigration attorney because he was a resident, not a
United States citizen, the judge told defendant that deportation
would "most likely" occur due to his guilty plea. Moreover,
defendant stated that he would be satisfied with that result. The
plea form, which defendant initialed, signed, and reviewed with
counsel, further demonstrates that he knew he would be deported
because of his guilty plea.
For these reasons and for those Judge Ballard expressed in
his written decision, we conclude that defendant failed to make a
prima facie case of ineffective assistance of plea counsel. We
conclude that defendant's arguments are unsupported and lack
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Affirmed.
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