STATE OF NEW JERSEY v. AMADU KOROMA (14-06-0202, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-1804-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AMADU KOROMA,
Defendant-Appellant.
________________________
Submitted February 16, 2022 – Decided March 31, 2022
Before Judges Hoffman, Whipple and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Accusation No. 14-06-0202.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Stephanie Davis Elson, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant Amadu Koroma appeals from a June 30, 2020 order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing.
Because the record indicates defendant may not have understood questions
regarding the effects of a plea on his immigration status and the record does not
show the substance of prior counsel's advice as to the possible immigration
consequences of accepting the guilty plea, and whether she pressured defendant
to plead guilty, we remand for an evidentiary hearing.
In 2003, defendant was granted asylum as a refugee from Sierra Leone.
At sixteen years old, he saw his father killed by people who worked for the
government and are still in power. In 2011, he became a lawful permanent
resident.
On June 20, 2014, defendant waived indictment and trial by jury for third-
degree theft of a cell phone, N.J.S.A. 2C:20-3(a), and pled guilty under Hudson
County Accusation No. 14-06-0202-A. On the plea form, defendant answered
the questions as follows:
17. a. Are you a citizen of the United States? No.
....
b. Do you understand that if you are not a citizen of the
United States, this guilty plea may result in your
removal from the United States and/or stop you from
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being able to legally enter or re-enter the United States?
Yes.
c. Do you understand that you have the right to seek
individualized advice from an attorney about the effect
your guilty plea will have on your immigration status?
Yes.
d. Have you discussed with an attorney the potential
immigration consequences of your plea? No.
....
e. Would you like the opportunity to do so? No.
f. Having been advised of the possible immigration
consequences and of your right to seek individualized
legal advice on your immigration consequences, do you
still wish to plead guilty? Yes.
At the plea hearing, defendant stated he understood the plea agreement
and he had time to discuss the case with his attorney before deciding to plead
guilty. With respect to his immigration status, the court engaged in the
following colloquy with defendant:
[The court]: Do you understand that by pleading guilty
to this offense, you are subject to deportation?
[Defendant]: Yes.
[The court]: You understand you have a [r]ight to
consult with an attorney specializing in [i]mmigration
matters before entering this plea to determine what the
consequences of this plea would be on your status?
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[Defendant]: Yes.
[The court]: Have you done that?
[Defendant]: Yes.
[The court]: You have spoken with an [i]mmigration
lawyer?
[Defendant]: Never spoke to [i]mmigration.
[The court]: Do you intend to speak to one?
[Defendant]: No.
[The court]: You are giving up that [r]ight?
[Defendant]: I never spoke to them.
[The court]: I know you haven't. Do you understand
you have the [r]ight to do that?
[Defendant]: Yes, my Lord.
[The court]: Do you intend to give that [r]ight up?
[Defendant]: Yes.
....
[The court]: So, you understand your [r]ights, sir?
[Defendant]: Yes, my Lord.
Defendant's counsel again raised his immigration issue with the court:
[Defendant's counsel]: . . . I do want to bring to the
[c]ourt's attention that[] I did speak quite a few times,
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twice, to [defendant] about his [i]mmigration. He's
listed as refugee, [Y]our Honor, not a particular
classification I find often, but [defendant] has assured
me that he doesn't believe he would suffer any
[i]mmigration consequences.
Your Honor, I want to make sure you tell the
[j]udge that's what you told me.
[Defendant]: Yes, that's true. That's what I told her.
[The court]: Well, I just need to make sure that you're
aware of the fact that you have a [r]ight to consult with
a lawyer about your [i]mmigration status before you
enter the plea, and you advised me that you were giving
that [r]ight up[.] [I]s that correct?
[Defendant]: Yes.
On August 1, 2014, defendant was sentenced to a two-year term of
probation and did not appeal his sentence or conviction. As a result of his plea,
the United States Department of Homeland Security ordered defendant's
deportation, which he is currently appealing.
On June 10, 2019, defendant filed a pro se petition for PCR. He claimed
"[i]neffective counsel[,] advised to plead guilty without due consideration of
facts and circumstances surrounding arrest and my immigration status –
including negative [e]ffects upon status." Defendant filed a certification stating
the following facts applicable to this appeal:
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My attorney convinced me that if I went to trial I would
lose and spend more years in prison, so I should take
the guilty plea that was offered and I would get out on
probation. She coerced me into taking the plea even
though I wanted to go to trial as I was sure I would not
be convicted. . . .
My attorney did not provide me with a copy of
the discovery so I could see what the evidence was
against me. She also never reviewed the evidence with
me. I was left in the dark and trusted my attorney to
properly advise me since I had no choice.
My attorney only met with me two times, and
only seemed interested in having me plead guilty. She
never seriously talked with me about my wanting to go
to trial.
....
When the [c]ourt asked me if I wanted to speak
with an immigration attorney before I entered the guilty
plea, I at first did not understand but I said I did not
want to. My attorney did not go into any real detail
about this. I was a refugee and had a green card. . . .
[I]f I had been given the opportunity to speak with an
immigration attorney I would have had better
information.
On May 19, 2020, the PCR court heard oral argument. On June 30, 2020,
the court entered an order and written decision denying defendant's PCR petition
because he failed to allege a prima facie claim of ineffective assistance of
counsel requiring an evidentiary hearing. The court rejected defendant's
argument that "the plea colloquy indicate[d] 'some lack of understanding on the
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part of the defendant as to the [c]ourt's pertinent questions, at least initially, and
his acknowledgment of the questions upon restating.'" The court was also not
convinced defendant's use of the term "my Lord" when addressing the judge
demonstrated that he did not fully understand the proceedings.
The court noted that defendant did not allege that counsel advised him
"one way or another" about the immigration consequences of his plea. He
answered on the plea form that he was advised of the right to consult with an
immigration attorney, and he was advised of that right at the plea hearing. The
court also noted that given defendant's unique immigration status, the law was
not "succinct and straightforward," and defendant's counsel was not obligated to
do more than advise defendant that "pending criminal charges may carry a risk
of adverse immigration consequences, [Padilla v. Kentucky, 559 U.S. 356, 369
(2010)]."
Moreover, the court noted that the judge explained to defendant that he
was subject to deportation. Additionally, the court noted that defendant's
counsel explained she met with defendant multiple times and defendant was sure
he would not be deported. Defendant did not explain what information he would
have received that would have affected his decision to plead guilty. Thus, the
court concluded that, based on the plea colloquy and plea form, defendant
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understood his right to consult with an immigration attorney, and he was advised
about the potential consequences of the plea. This appeal followed.
Defendant raises the following issues:
POINT ONE
THE PCR COURT ERRED IN DENYING MR.
KOROMA'S PETITION FOR POST-CONVICTION
RELIEF WITHOUT GRANTING AN EVIDENTIARY
HEARING AS TESTIMONY IS NEEDED FROM
PRIOR COUNSEL REGARDING THE SUBSTANCE
OF HER ADVICE AS TO THE IMMIGRATION
CONSEQUENCES OF ACCEPTING THE GUILTY
PLEA.
POINT TWO
THE PCR COURT ERRED IN DENYING MR.
KOROMA'S PETITION FOR POST-CONVICTION
RELIEF WITHOUT GRANTING AN EVIDENTIARY
HEARING AS TESTIMONY IS NEEDED FROM
PRIOR COUNSEL REGARDING WHY SHE
PRESSURED MR. KOROMA TO PLEAD GUILTY.
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v.
Preciose, 129 N.J. 451, 459 (1992)). Post-conviction relief provides "a built-in
'safeguard that ensures that a defendant was not unjustly convicted.'" State v.
Nash, 212 N.J. 518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482
(1997)). "A petition for post-conviction relief is cognizable if based upon . . .
[s]ubstantial denial in the conviction proceedings of defendant's rights under the
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Constitution of the United States or the Constitution or laws of the State of New
Jersey . . . ." R. 3:22-2(a). "Ineffective-assistance-of-counsel claims are
particularly suited for post-conviction review because they often cannot
reasonably be raised in a prior proceeding." Preciose, 129 N.J. at 460.
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.
[R. 3:22-10(b).]
An evidentiary hearing will not be granted:
(1) if an evidentiary hearing will not aid the court's
analysis of the defendant's entitlement to post-
conviction relief;
(2) if the defendant's allegations are too vague,
conclusory or speculative; or
(3) for the purpose of permitting a defendant to
investigate whether additional claims for relief exist for
which defendant has not demonstrated a reasonable
likelihood of success as required by [Rule] 3:22-10(b).
[R. 3:22-10(e).]
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Petitioners must demonstrate they meet the two-prong test in Strickland
v. Washington, 466 U.S. 668 (1984).
The first prong is satisfied by a showing that
counsel's acts or omissions fell "outside the wide range
of professionally competent assistance" considered in
light of all the circumstances of the case. "No particular
set of detailed rules for counsel's conduct can
satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of
legitimate decisions regarding how best to represent a
criminal defendant." Therefore, there is "a strong
presumption that counsel's conduct falls within the
wide range of reasonable professional assistance." To
rebut that presumption, a defendant must establish that
trial counsel's actions did not equate to "sound trial
strategy." In evaluating a defendant's claim, the court
"must judge the reasonableness of counsel's challenged
conduct on the facts of the particular case, viewed as of
the time of the attorney's conduct."
The second prong is satisfied by a defendant
showing "there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different."
[State v. Chew, 179 N.J. 186, 203-04 (2004) (citations
omitted).]
In addition, "counsel must inform her client whether his plea carries a risk
of deportation," Padilla, 559 U.S. at 374, and "a petitioner must convince the
court that a decision to reject the plea bargain would have been rational under
the circumstances." Id. at 372.
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The United States Supreme Court considered, with respect to Strickland's
attorney-deficiency prong, whether counsel has a duty to inform non-citizen
clients of the risk of deportation even if the law is not "succinct and
straightforward," see id. at 369; id. at 381 (Alito, J., concurring). New Jersey's
Supreme Court considered the same duty.
[E]ven if removal is not "mandated" in the sense that a
state offense is not identified on published lists of
offenses equating to aggravated felonies or like
mandatorily removable offenses, counsel must
highlight for noncitizen clients that entering a guilty
plea will place them at risk of removal and that they
may seek to obtain counseling on potential immigration
consequences in order that their guilty plea be accepted
as knowing and voluntary. We will look to transcripts
of plea colloquies for evidence that these points were
placed on the record with a noncitizen defendant prior
to a court's acceptance, and entry, of a guilty plea.
[State v. Gaitan, 209 N.J. 339, 381 (2012).]
In considering whether duties have been met, our "review is necessarily
deferential to a PCR court's factual findings based on its review of live witness
testimony." Nash, 212 N.J. at 540. We review the PCR court's interpretation of
the law de novo. Id. at 540-41.
Defendant first argues that the trial court erred in denying his PCR petition
without an evidentiary hearing because testimony was needed to determine the
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substance of prior counsel's advice regarding the immigration consequences of
pleading guilty. We agree.
The transcript shows that defendant may not have understood the
questions he was asked. When asked if he understood his right to speak with an
immigration attorney, and whether he had done so, he said "yes." However,
when further questioned as to whether he had spoken with an immigration
attorney, he responded, "Never spoke to immigration." When then asked
whether he intended to speak with an immigration attorney, defendant answered,
"I never spoke to them." When the court asked again whether defendant
understood he had the right to speak with an immigration attorney, he answered,
"Yes, my Lord." A plain reading of the transcript indicates that defendant may
not have understood the classification difference between immigrants and
refugees, and therefore did not understand the consequences, including
deportation, that attached to his guilty plea. Further, defendant's colloquy fails
to account for the two conversations he had with counsel.
Defendant met his burden of establishing a prime facie case as to require
an evidentiary hearing. See Preciose, 129 N.J. at 462. As to the first prong,
based on his status as a refugee, defendant "assured [counsel that] he [did not]
believe he would suffer any immigration consequences." But the court did not
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conduct further questioning of whether counsel adequately explained and
defendant understood his classification as a refugee and the possible deportation
consequences that could result from a guilty plea. Defendant established
Strickland's second prong because, at the time of his guilty plea, defendant
believed he would be in danger if he was forced to return to Sierra Leone; thus,
he provided support that he would not have pled guilty if he had been properly
informed by counsel of this potential consequence. If defendant had been fully
informed of the possible deportation, we think the results of the proceedings
would be different. Because defendant asserts he was not advised that he faced
possible deportation, he subsequently waived his right to speak with an
immigration attorney. Therefore, an evidentiary hearing is necessary to
investigate facts outside of the trial record, specifically the substance of his
counsel's advice and whether she consulted him on possible deportation. See
Preciose, 129 N.J. at 462.
Defendant next argues that he was pressured to plead guilty by counsel,
who convinced him that if he went to trial, "he would spend years in prison."
The State counterargues that "a plain reading of the plea transcript shows that
[defendant] entered a voluntary, knowing plea." We disagree with the State's
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contention based on the colloquy we earlier recounted and concluded that
defendant did not understand the questions he was asked.
In accepting a guilty plea, the trial court must establish that the plea was
made "voluntarily, knowingly, and intelligently." State v. Howard, 110 N.J.
113, 122 (1988). A court shall not accept a plea of guilty without first
determining that the plea is made voluntarily without any threats or promises of
inducement, "and with an understanding of the nature of the charge and the
consequences of the plea." R. 3:9-2. Because defendant established a prima
facie case of ineffective assistance, he raised "material issues of disputed fact
that cannot be resolved by reference to the existing record." R. 3:22-10(b). As
a result, a remand for an evidentiary hearing is required.
Reversed and remanded. We do not retain jurisdiction. We offer no
opinion on whether defendant is entitled to withdraw his guilty plea.
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