STATE OF NEW JERSEY VS. PRATYUSH BHAGAT (09-08-1291 AND 10-02-0300, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-2638-16T2
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    PRATYUSH BHAGAT,
    Defendant-Appellant.
    _______________________________
    Argued February 12, 2018 – Decided July 16, 2018
    Before Judges Sabatino and Whipple.
    On appeal from Superior Court of New Jersey,
    Law Division, Middlesex County, Indictment
    Nos. 09-08-1291 and 10-02-0300.
    Michael S. Allongo argued the cause for
    appellant   (The  Allongo   Law  Firm,   LLC,
    attorneys; Michael S. Allongo, on the brief).
    Nancy A. Hulett, Assistant Prosecutor, argued
    the cause for respondent (Andrew C. Carey,
    Middlesex County Prosecutor, attorney; Nancy
    A. Hulett, of counsel and on the brief).
    PER CURIAM
    Defendant Pratyush Bhagat appeals from the January 13, 2017
    order denying reconsideration of his petition for post-conviction
    relief (PCR).    For the reasons that follow, we affirm.
    Defendant was born in India and is not a citizen of the United
    States.    He was a lawful resident of this country with a visitor's
    visa and later obtained a student visa while attending college.
    In two separate indictments, defendant was charged with nine
    controlled dangerous substance (CDS) possession or distribution
    counts: seven stemming from an April 2009 arrest and two from a
    January 2010 arrest that occurred while he was out on bail.
    Defendant initially retained a lawyer to represent him in
    these matters. After defendant was denied admission to drug court,
    the lawyer allegedly planned to file a motion to suppress evidence
    on defendant's behalf.      However, the night before the suppression
    hearing, defendant retained a new lawyer.           The second lawyer,
    defendant's plea counsel, then began negotiating with the State.
    On April 15, 2010, defendant married his then-fiancée, an
    American citizen, allegedly acting on plea counsel's advice to
    obtain lawful residency.      The next day, defendant pled guilty to:
    second-degree possession with the intent to distribute cocaine,
    N.J.S.A.    2C:35-5(a)(1)    and   2C:35-5(b)(2);   and   second-degree
    possession with the intent to distribute heroin, N.J.S.A. 2C:35-
    5(a)(1) and 2C:35-5(b)(2).         In exchange, the State agreed to
    2                           A-2638-16T2
    dismiss all other counts from the indictments and recommend a
    consecutive sentence of five years for the first indictment and
    three years for the second indictment.
    A different lawyer, from the same office as plea counsel,
    represented defendant at the plea hearing.            During the hearing,
    the prosecutor asked defendant if he reviewed the plea form, and
    defendant acknowledged he did.         The prosecutor then specifically
    addressed defendant's status as an immigrant, asking "[d]o you
    understand that, there is a strong likelihood, that once you plead
    guilty, you probably will be deported back to India?"              Defendant
    responded, "[y]es."     In addition, the plea judge explained to
    defendant    that   "pleading    guilty      will     subject     [him]     to
    deportation."   Again, defendant responded that he understood.            The
    court ultimately accepted defendant's guilty plea.
    After   entering   his   guilty    plea,   but   before     sentencing,
    defendant began the process of attempting to gain resident status
    as the immediate relative of an American citizen.               According to
    defendant, he believed he would be approved since he was married
    to an American citizen.
    Defendant then retained a different law firm to represent him
    at sentencing on July 26, 2010, where sentencing counsel provided
    the court with a history of defendant's case.          In pertinent part,
    he argued, "the tragedy of all of this not only is he is going to
    3                                 A-2638-16T2
    jail – nobody wants to go to jail – he's going to be deported.
    It's almost a guarantee based upon the record when he gets paroled
    out of the State Prison system."           The court sentenced defendant
    in accordance with the plea agreement to an aggregate term of
    eight years.
    On January 10, 2011, the United States Department of Homeland
    Security notified defendant of its intention to deport him because
    of   the   convictions.       Thereafter,    on    February    10,   2012,      an
    immigration      court   ordered   defendant   removed     from    the    United
    States.
    On July 24, 2015, defendant filed a petition for PCR, arguing
    plea   counsel    provided    ineffective    assistance     of    counsel     for
    failing to advise him of the mandatory immigration consequences
    of pleading guilty.       At the PCR evidentiary hearing, plea counsel
    testified   he    recalled   defendant's    case    in   particular      because
    defendant offered him drugs in lieu of payment.               He testified he
    did not give defendant immigration advice, and if asked, he would
    have referred defendant to an immigration attorney.               Plea counsel
    also denied advising defendant to marry his then-fiancée in order
    to avoid deportation.        He stated he would have advised defendant
    that the crimes charged were deportable offenses, but was not
    confident he told defendant deportation was mandatory.                    During
    cross-examination, plea counsel testified he knew of defendant's
    4                                  A-2638-16T2
    alien status and recalled telling defendant and his parents that
    defendant would "very likely" be deported. Plea counsel maintained
    defendant was more concerned with the length of his prison sentence
    than deportation.
    Defendant testified and offered a different version of his
    consultation with plea counsel.       Defendant denied offering drugs
    in exchange for legal services.       When the deportation issue was
    discussed, defendant testified plea counsel leaned in and said,
    "Why don't you get married to an American citizen?"             Defendant
    denied plea counsel gave him the name of an immigration attorney
    or reviewed the plea forms with him.          He further testified plea
    counsel did not advise him that a guilty plea would result in
    mandatory deportation, a lifetime bar to American citizenship, and
    mandatory detention until removal.
    On September 2, 2016, the trial judge denied defendant's
    petition in a written opinion.    The judge found plea counsel was
    a credible witness and defendant was not credible.              The judge
    rejected   defendant's   contention    that    plea   counsel   suggested
    marriage to avoid deportation.    The judge reasoned the plea form,
    which defendant reviewed with the attorney who appeared for the
    entry of the plea, and defendant's colloquy with the plea judge,
    illustrated he knew he was subject to deportation.         Moreover, the
    judge noted defendant testified he was satisfied with the plea
    5                               A-2638-16T2
    deal because it reduced his exposure to jail time.     Ultimately,
    the court found defendant did not satisfy his burden under either
    prong of the Strickland1 standard.
    Defendant moved for reconsideration of his PCR petition, and
    after oral argument, the court denied this motion on January 13,
    2017.   This appeal followed.
    On appeal, defendant raises the following arguments:
    THE TRIAL COURT FAILED TO CONSIDER THAT EVEN
    IF [PLEA COUNSEL] HAD NOT GIVEN ANY INCORRECT
    ADVICE ABOUT MARRIAGE, [PLEA COUNSEL] FAILED
    TO FULFILL HIS DUTY UNDER PADILLA2 BECAUSE HE
    FAILED TO ADVISE MR. BHAGAT THAT DEPORTATION
    WAS NOT JUST POSSIBLE, BUT MANDATORY.
    THE   TRIAL   COURT  ERRED   IN   CONSIDERING
    STATEMENTS BY THE JUDGE AND THE PROSECUTOR
    REGARDING DEPORTATION AS RELIEVING DEFENSE
    COUNSEL OF HIS OBLIGATION UNDER PADILLA.
    THE TRIAL COURT ERRED IN FINDING THAT
    STATEMENTS BY THE TRIAL COURT AND PROSECUTOR
    CURED THE PREJUDICE CAUSED BY [PLEA COUNSEL]'S
    INEFFECTIVENESS.
    THE TRIAL COURT ERRED IN EFFECTIVELY PLACING
    A RETROACTIVE AFFIRMATIVE OBLIGATION ON MR.
    BHAGAT TO HAVE ANSWERED YES OR NO QUESTIONS
    WITH FREE-FORM ANSWERS DURING HIS PLEA
    COLLOQUY.
    THE   TRIAL   COURT   IMPROPERLY  CONSIDERED
    STATEMENTS AT THE TIME OF SENTENCING AS A
    REFLECTION OF KNOWLEDGE AND UNDERSTANDING AT
    THE TIME OF THE PLEA.
    1
    Strickland v. Washington, 
    466 U.S. 668
    (1984).
    2
    Padilla v. Kentucky, 
    559 U.S. 356
    (2010).
    6                           A-2638-16T2
    THE   TRIAL  COURT   ERRED            IN        MAKING    ITS
    CREDIBILITY FINDINGS.
    The Trial Court failed to give sufficient
    weight to the filing of the immigration
    petition.
    The Trial Court failed to consider that
    prior to hiring [plea counsel], Mr.
    Bhagat was preparing to go to trial.
    To prevail on a claim of ineffective assistance of counsel,
    defendant must meet the two-prong Strickland test: he must show
    that (l) counsel's performance was deficient and he made errors
    that were so egregious counsel was not functioning effectively as
    guaranteed     by    the    Sixth   Amendment        to    the     United    States
    Constitution; and (2) "there is 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
    ; State
    v. Fritz, 
    105 N.J. 42
    , 52 (1987).
    Under the first prong, "counsel is strongly presumed to have
    rendered adequate assistance and made all significant decisions
    in the exercise of reasonable professional judgment."                 
    Strickland, 466 U.S. at 690
    .       We must determine whether the acts or omissions
    of counsel "were outside the wide range of professionally competent
    assistance."        
    Ibid. Adequate assistance of
    counsel must be
    measured by a standard of "reasonable competence."                 State v. Jack,
    
    144 N.J. 240
    , 248 (1996) (citing 
    Fritz, 105 N.J. at 53
    ).
    7                                     A-2638-16T2
    Under the second prong of Strickland, defendant must prove
    prejudice.    
    Fritz, 105 N.J. at 52
    .            He must show a "reasonable
    probability" that counsel's deficient performance affected the
    outcome of the proceeding.              
    Strickland, 466 U.S. at 694
    .               A
    reasonable probability is defined as "a probability sufficient to
    undermine confidence in the outcome."            
    Ibid. We review a
    PCR petition with deference to the trial court's
    factual    findings.   State       v.   Nash,   
    212 N.J. 518
    ,   540    (2013)
    (citations omitted).       We "give deference to those findings of the
    trial judge which are substantially influenced by his opportunity
    to hear and see the witnesses and to have the 'feel' of the case,
    which a reviewing court cannot enjoy."            State v. Elders, 
    192 N.J. 224
    , 244 (2007) (quoting State v. Johnson, 
    42 N.J. 146
    , 161
    (1964)).     However, all legal conclusions are reviewed de novo.
    State v. Harris, 
    181 N.J. 391
    , 415-16 (2004) (citing Toll Bros.
    v. Twp. of W. Windsor, 
    173 N.J. 502
    , 549 (2002)).
    Defendant    argues    plea    counsel     did   not    provide   effective
    assistance of counsel because, under 
    Padilla, 559 U.S. at 356
    , he
    should have advised defendant he would be mandatorily deported
    after pleading guilty.        In Padilla, the United States Supreme
    Court held counsel has an affirmative duty to inform a criminal
    defendant of the immigration consequences of a guilty 
    plea. 559 U.S. at 368-69
    .    The Court held when deportation is "truly clear
    8                                 A-2638-16T2
    . . ., the duty to give correct advice is equally clear."           
    Id. at 369.
    We have said 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
    , 331 (App.
    Div. 2012) (citing 
    Padilla, 559 U.S. at 369
    ).        We note Padilla was
    issued by the Supreme Court of the United States on March 31,
    2010, two weeks prior to the entry of defendant's guilty plea.
    There is no question that pursuant to the Immigration and
    Nationality      Act   (INA)3   defendant   was   subject   to   mandatory
    3
    Under 8 U.S.C. § 1227,
    Any alien . . . in and admitted to the United
    States shall, upon the order of the Attorney
    General, be removed if the alien is within one
    or more of the following classes of deportable
    aliens:
    . . . .
    (2)    Criminal offenses.
    (A)    General crimes.
    . . . .
    (iii) Aggravated felony. Any alien who is
    convicted of an aggravated felony at any time
    after admission is deportable.
    . . . .
    (B)    Controlled substances.
    9                             A-2638-16T2
    deportation for the charged offenses.      The statutory definition
    of aggravated felony in the INA includes "illicit trafficking in
    a controlled substance. . . ."       8 U.S.C. § 1101(a)(43)(B).    As
    such, by pleading guilty to two counts of possession of CDS with
    the intent to distribute, defendant was subject to mandatory
    deportation.
    Plea counsel concedes he never gave defendant any immigration
    advice. This omission satisfies the first prong of Strickland.
    
    Padilla, 559 U.S. at 371
    ("It is quintessentially the duty of
    counsel to provide her client with available advice about an issue
    like deportation, and the failure to do so clearly satisfies the
    first prong of the Strickland analysis.") (citation omitted).
    Moving to the second prong of Strickland, we consider whether
    defendant was prejudiced by counsel's error.      In the context of
    guilty pleas, this prong is satisfied when "defendant demonstrates
    that he would not have pled guilty if he had been provided with
    accurate information . . . ."   State v. Gaitan, 
    209 N.J. 339
    , 351
    (2012) (citing State v. Nunez-Valdez, 
    200 N.J. 129
    , 131 (2009)).
    (i) Conviction. Any alien who at any time
    after admission has been convicted of a
    violation of . . . any law or regulation of a
    State, the United States, or a foreign country
    relating to a controlled substance . . . .
    10                          A-2638-16T2
    Defendant argues he would not have pled guilty if he knew he
    would be mandatorily deported.            The trial judge did not find
    defendant credible on this contention.             There is sufficient,
    credible evidence in the record to support the judge's credibility
    determination.        At the plea hearing, defendant and his lawyer
    reviewed the plea form that indicated a likelihood of deportation.
    During the plea colloquy, the prosecutor told defendant he would
    likely be deported.      The plea judge was less equivocal, explaining
    that pleading guilty would subject him to deportation, which
    defendant acknowledged.         At no point did defendant raise any
    questions or request to discuss anything further with his attorney.
    In fact, defendant indicated he was satisfied with his counsel's
    performance.
    Thereafter, during sentencing, defendant's sentencing lawyer
    stated defendant had decided to forgo a motion to withdraw his
    guilty   plea   and    that   defendant   "is   going   to   be   deported."
    Defendant could have explored withdrawing his guilty plea if his
    main concern truly was deportation.         However, as the trial court
    found, defendant's primary concern was to reduce his prison time.
    Accordingly, we do not find the trial judge erred finding defendant
    did not satisfy the second prong of Strickland.
    Defendant's other arguments are without sufficient merit to
    warrant discussion in a written opinion.         R. 2:11-3(e)(2).
    11                               A-2638-16T2
    Affirmed.
    12   A-2638-16T2