STATE OF NEW JERSEY v. DOMINIC J. ALEXANDER (05-05-0650, 09-02-0206 AND 11-05-0454, PASSAIC COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-2058-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DOMINIC J. ALEXANDER,
a/k/a DOMINIC ALEXANDER,
J. DOMINIC CARTER ALEXANDER,
and SCOTT JAVEL,
Defendant-Appellant.
________________________________
Submitted September 28, 2022 – Decided October 14, 2022
Before Judges Currier and Mayer.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment Nos. 05-05-0650,
09-02-0206, and 11-05-0454.
Joseph E. Krakora, Public Defender, attorney for
appellant (Lee March Grayson, Designated Counsel, on
the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Leandra L. Cilindrello,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Dominic J. Alexander appeals from a June 16, 2020 order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
Defendant filed a PCR petition regarding three separate criminal
indictments. We summarize the facts underlying each indictment that are
relevant to our review of defendant's PCR application.
On May 17, 2005, defendant was charged in Indictment No. 05-05-0650
with four counts of drug-related charges. On January 10, 2006, defendant
pleaded guilty to a single count of third-degree distribution of a controlled
dangerous substance within 1000 feet of a school zone, N.J.S.A. 2C:35-7 and
N.J.S.A. 2C:35-5(a).
At the plea hearing, defendant acknowledged reviewing the plea form with
his attorney and understanding the proceeding. The plea hearing judge
extensively questioned defendant regarding the plea. The judge explained that
by entering a guilty plea, defendant "may be forced to go back to Jamaica" and
"may be deported." Defendant stated he understood the deportation
consequences of pleading guilty and wanted to proceed with his guilty plea. In
reviewing the plea form, the judge noted defendant responded "yes" to question
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17, stating he understood "that if [he is] not a United States citizen [he] may be
deported." The judge twice confirmed defendant understood the potential
deportation consequences during the plea colloquy.
Based on defendant's responses, the judge was satisfied defendant
understood his rights and the plea offer. The judge further determined
defendant's guilty plea was voluntary and defendant provided an adequate
factual basis for his plea.
The State recommended a sentence of probation with 364 days in the
Passaic County Jail. In accordance with the negotiated plea agreement, the
judge sentenced defendant to probation.
On September 7, 2006, defendant appeared before the same judge on a
violation of his probation. Defendant pleaded guilty to that charge and the judge
continued the probationary sentence.
On May 25, 2007, defendant again appeared before the same judge on
another violation of probation. Defendant pleaded guilty to the second violation
of probation and the judge continued the probationary sentence.
On December 16, 2008, defendant appeared yet again before the same
judge on a third violation of probation. The judge terminated defendant's
probation.
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On February 19, 2009, defendant faced new charges for weapons
possession under Indictment No. 09-02-0206. On May 14, 2010, defendant
appeared before a different judge and pleaded guilty to second-degree certain
persons not to have weapons, N.J.S.A. 2C:39-7(b).
At the plea hearing under this indictment, defendant acknowledged
reviewing the plea form with his attorney and understanding the legal
proceedings. Additionally, defendant told the judge he understood the questions
on the plea form, his answers to those questions were truthful, and his guilty
plea was given freely and voluntarily. During the plea colloquy, the judge did
not specifically question defendant about the potential immigration
consequences of his guilty plea.
Regarding question 17 on the plea form, because he was not a United
States citizen, defendant indicated he understood the following: he may be
deported by virtue of his guilty plea; if the guilty plea related to a crime
considered an "aggravated felony" under federal law, he would be subject to
deportation/removal; and he had the right to seek legal advice on his
immigration status prior to entering a guilty plea. In accordance with the
negotiated plea under this indictment, on October 19, 2015, defendant received
a five-year prison sentence with five years of parole ineligibility.
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On May 10, 2011, defendant was charged under Indictment No. 11-05-
0454 with drug and weapons offenses. On September 15, 2015, defendant
entered a guilty plea before Judge Sohail Mohammed to third-degree possession
of a controlled dangerous substance with intent to distribute within 1000 feet of
a school, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5(a); and second-degree certain
persons not to have weapons, N.J.S.A. 2C: 39-7(b).
At the plea hearing, defendant acknowledged reviewing the plea form with
his attorney and understanding the legal proceedings. When Judge Mohammed
asked if defendant was a United States citizen, he responded "No." The judge
then explained "because [defendant is] not a [United States] citizen, [his] guilty
plea may result in removal or deportation," and advised defendant that he had
the right to consult with an immigration attorney to discuss the possible
ramifications of his guilty plea. Judge Mohammed asked defendant whether he
discussed potential immigration issues with an attorney and defendant said he
was satisfied with the advice provided by his attorney.
Regarding question 17 on the plea form, defendant stated he understood
the immigration consequences of entering a guilty plea and told the judge he
wished to plead guilty.
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The State recommended a prison sentence of eight years, subject to five
years of parole ineligibility, to run concurrent with all open dockets, including
Indictment No. 09-02-0206. On October 9, 2015, the judge sentenced defendant
in accordance with the plea agreement.
On May 23, 2019, Alexander filed a pro se PCR application under
Indictment Nos. 09-02-0206 and 11-05-0454. About six months later, assigned
PCR counsel filed a motion to amend the PCR petition to include Indictment
No. 05-05-0650 and provided a certification signed by defendant.
On February 5, 2020, Judge Mohammed heard arguments on the PCR
petition. In a June 16, 2020 order and accompanying written decision, Judge
Mohammed denied defendant's PCR petition.
On appeal, defendant raises the following arguments:
POINT I
THE PCR COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST[-]
CONVICTION RELIEF WITHOUT AFFORDING
HIM A FULL EVIDENTIARY HEARING THAT
INCLUDED TESTIMONY FROM PLEA COUNSEL
TO FULLY ADDRESS THE ISSUE OF HIS
ATTORNEYS PROVIDING HIM WITH
INCORRECT AND/OR MISLEADING ADVICE
REGARDING THE IMMIGRATION
CONSEQUENCES OF PLEADING GUILTY IN
EACH INDICTMENT.
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POINT II
BECAUSE PLEA COUNSEL FAILED TO
PROPERLY ADVISE THE DEFENDANT ABOUT
THE IMMIGRATION CONSEQUENCES WHICH
INCLUDED MANDATORY DEPORTATION, THE
DEFENDANT'S GUILTY PLEAS WERE NOT
VOLUNTARILY AND KNOWINGLY ENTERED
AND MUST BE VACATED.
POINT III
THE PCR COURT'S DECISION DENYING
PETITIONER'S INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM AS TIME-BARRED FOR
INDICTMENT 05-05-650-I WITHOUT
CONDUCTING A FULL EVIDENTIARY HEARING
THAT EXAMINED THE PERFORMANCE OF PLEA
COUNSEL AND THE ISSUE OF HIS INCORRECT
LEGAL ADVICE REGARDING THE
IMMIGRATION CONSEQUENCES OF PLEADING
TO THE THIRD-DEGREE CDS OFFENSE HAS
RESULTED IN FUNDAMENTAL INJUSTICE,
WHICH REQUIRES REMAND TO THE PCR COURT
BEFORE A DIFFERENT JUDGE FOR A NEW
HEARING.
We reject defendant's arguments and affirm for the reasons stated in Judge
Mohammed's comprehensive June 16, 2020 written decision. We add only the
following comments.
Our "standard of review is necessarily deferential to a PCR court's factual
findings," and findings "supported by sufficient credible evidence in the record"
should be upheld. State v. Nash, 212 N.J. 518, 540 (2013). Where there is no
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evidentiary hearing, we may "conduct a de novo review of both the factual
findings and legal conclusions of the PCR court." State v. Reevey, 417 N.J.
Super. 134, 146-47 (App. Div. 2013) (quoting State v. Harris, 181 N.J. 341, 421
(2004)). We review a trial court's decision to deny a defendant's request for an
evidentiary hearing for abuse of discretion. State v. Russo, 333 N.J. Super. 119,
137 (App. Div. 2000) (citing State v. Artis, 36 N.J. 538, 541 (1962)).
A defendant is not automatically entitled to an evidentiary hearing by
simply raising a PCR claim. State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div. 1999). An evidentiary hearing is required only when: a defendant
establishes a prima facie case in support of PCR; the court determines there are
material issue of disputed fact that cannot be resolved by a review of the existing
record; and the court finds an evidentiary hearing is required to resolve the
claims asserted. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)).
To establish a prima facie case of ineffective assistance of counsel, a defendant
must present legally competent evidence rather than mere "bald assertions."
Cummings, 321 N.J. Super. at 170.
To establish a prima facie claim of ineffective assistance of counsel, the
defendant must satisfy the two-prong test articulated in Strickland v.
Washington, 466 U.S. 668 (1984), and adopted by our New Jersey Supreme
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Court in State v. Fritz, 105 N.J. 42 (1987). First, a defendant must show
counsel's performance was deficient, such that his or her performance falls
below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88.
Second, a defendant must show counsel's deficient performance prejudiced the
case, which requires demonstrating a reasonable probability that the result of the
proceeding would have been different but for counsel's performance. Id. at 694.
In the context of a guilty plea, a defendant must demonstrate: (1) counsel's
performance was not "within the range of competence demanded of attorneys in
criminal cases," and (2) "that 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. DiFrisco, 137 N.J. 434, 457 (1994) (alteration
in original) (quoting Tollett v. Henderson, 411 U.S. 258, 266 (1973) and Hill v.
Lockhart, 474 U.S. 52, 54 (1985)).
Because defendant's 2005 and 2009 guilty pleas pre-dated 2010, defense
counsel would be ineffective only if they "provide[d] false or misleading
[material] information concerning the deportation consequences of a plea of
guilty." State v. Nunez-Valdez, 200 N.J. 129, 138-40 (2009).
In 2010, the United States Supreme Court held that:
Immigration law can be complex, and it is a legal
specialty of its own . . . . There will, therefore,
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undoubtedly be numerous situations in which the
deportation consequences of a particular plea are
unclear or uncertain. The duty of the private
practitioner in such cases is more limited. When the
law is not succinct and straightforward . . . a criminal
defense attorney need do no more than advise a
noncitizen client that pending criminal charges may
carry a risk of adverse immigration consequences.
[Padilla v. Kentucky, 559 U.S. 356, 369 (2010).]
The holding in Padilla did not retroactively apply to convictions that were
final prior to March 31, 2010, the date of the Padilla decision. Chaidez v. United
States, 568 U.S. 342, 344 (2013); State v. Gaitan, 209 N.J. 339 (2012). Thus,
the Nunez-Valdez standard applies to defendant's plea in Indictment No. 05-05-
0650, and the Padilla standard applies to his pleas in Indictment Nos. 09-02-
0206 and 11-05-0454.
Having reviewed the record, we are satisfied defendant did not receive
incorrect advice regarding the immigration consequences of his guilty plea. The
plea colloquies with the judge in two of the indictments and the signed plea
forms in all three matters indicated defendant was properly advised of the
possibility of deportation by pleading guilty.
Moreover, defendant failed to demonstrate he would not have pleaded
guilty but for his attorneys' allegedly incorrect advice. Rather, defendant offers
nothing more than bald assertions he would not have entered the guilty pleas
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had he known the possibility of deportation. A "[d]efendant may not create a
genuine issue of fact, warranting an evidentiary hearing, by contradicting his
prior statements without explanation." State v. Blake, 444 N.J. Super. 285, 299
(App. Div. 2016). At each court proceeding regarding all three indictments,
defendant acknowledged he understood the possibility of deportation by
pleading guilty.
Because defendant did not receive any incorrect legal advice during his
plea hearings, defendant is unable to establish a prima facie case of ineffective
assistance of counsel under either prong of the Strickland/Fritz analysis and
therefore he was not entitled to an evidentiary hearing.
Affirmed.
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