State of New Jersey v. Ansumani Kamara ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2272-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANSUMANI KAMARA,
a/k/a JOHN MONTANEZ,
Defendant-Appellant.
_______________________
Submitted March 18, 2024 – Decided April 12, 2024
Before Judges Mawla and Marczyk.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 13-03-0707.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Monique D. Moyse, Designated Counsel, on
the briefs).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (William Kyle Meighan,
Supervising Assistant Prosecutor, of counsel and on the
briefs).
PER CURIAM
Defendant Ansumani Kamara appeals from the trial court's August 19,
2021 order denying his petition for post-conviction relief ("PCR") following an
evidentiary hearing. Defendant alleges his trial counsel was constitutionally
ineffective because he failed to properly advise defendant regarding the
immigration consequences of his guilty plea. We affirm.
I.
In March 2013, defendant was indicted and charged with: first-degree
robbery, N.J.S.A. 2C:15-1(a)(2) (count one); first-degree accomplice liability,
N.J.S.A. 2C:2-6(c)(1)(b) (count two); second-degree possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (counts three and four); second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); and
fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts six and seven).
In August 2014, defendant pled guilty to count one. Defendant admitted
that in December 2012, he brandished a gun and robbed a business in Toms
River. The State agreed to dismiss the remaining charges and recommended
defendant be sentenced in the second-degree range with an eighty-five-percent
period of parole ineligibility pursuant to the No Early Release Act ("NERA"),
N.J.S.A. 2C:43-7.2. In October 2014, defendant was sentenced on count one to
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seven years in custody subject to NERA. All remaining charges were dismissed.
Defendant did not file a direct appeal.
In February 2017, defendant filed a PCR petition alleging his plea counsel
never advised him regarding the risk of deportation associated with his plea and
that he would not have pled guilty had he known he could face deportation. In
February 2018, defendant's petition for PCR was denied without an evidentiary
hearing. In December 2019, we reversed and remanded for a plenary hearing to
determine "whether plea counsel had sufficient information to trigger an
investigation into defendant's citizenship at the time of the guilty plea." State
v. Kamara, No. A-5059-17 (App. Div. Dec. 16, 2019) (slip op. at 9).
In June 2021, the PCR judge commenced an evidentiary hearing.
Defendant and his plea counsel, Ernest Ryberg, were the only witnesses that
testified. Ryberg testified the Office of the Public Defender ("OPD") has "a
very strict" policy on the representation of non-citizen clients, requiring them to
complete a detailed non-citizen questionnaire regarding immigration issues. A
blank copy of that questionnaire is placed into every new OPD file, regardless
of a client's citizenship. The policy requires completed questionnaires to be
submitted to the OPD for the purpose of generating a written memorandum to
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the assigned public defender to advise clients regarding the immigration
consequences they are facing.
Ryberg testified he usually kept detailed notes—referred to as "pink
sheets"—from meetings with clients. When Ryberg obtained defendant's file
from the OPD for purposes of the evidentiary hearing, it did not contain his
notes, pink sheets, or the non-citizen questionnaire. Ryberg expected the OPD
would have preserved the entire file, including his notes.
He further testified he "was under the impression" defendant "was a
naturalized citizen just like [him]." 1 Defendant had a social security number,
prior convictions, and no detainer was lodged against him by Immigration and
Customs Enforcement ("ICE"), as one would expect with a non-citizen. Ryberg
believed he never filled out the mandatory OPD non-citizen questionnaire
because when an "individual tells [him] that they are a citizen, [he] then put[s]
the form away because it doesn't apply."
PCR counsel confronted Ryberg with two inmate look-up records from
Essex County Jail and a uniform intake form ("5A form"). Portions of the
inmate look-up records had no response after a section entitled "citizen."
1
Plea counsel arrived in the United States as a child, obtained a "green card ,"
and later became a naturalized citizen.
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Similarly, the 5A form was blank after sections entitled "alien status" and
"citizenship status," but stated defendant's place of birth was Liberia. Ryberg
testified he "probably" reviewed those documents around the time he began
representing defendant. He also conceded that a foreign place of birth should
have raised a "red flag" regarding defendant's citizenship.
PCR counsel also questioned Ryberg concerning his "Defense Request for
Investigation" form dated January 2, 2013. The request was authored by Ryberg
and sent to an OPD investigator. It requested the investigator call defendant's
brother to ascertain whether defendant had a green card, among other things.
The OPD investigator prepared a report dated January 14, 2013, wherein it
stated, "[defendant] came to the United States in June of 1999. [Defendant] does
have a green card . . . . [Defendant] has been in the [United States] since he was
in third or fourth grade. [Defendant] did graduate from High School."
Ryberg testified the report did not contradict his belief defendant was a
naturalized citizen. The OPD file also contained a "Bail Motion Interview
Questionnaire" with handwritten information about defendant. Although the
form lists defendant's birthplace as Liberia, the section entitled "Immigration
Status" lists the following possible responses: "Illegal/Green
Card/Visa/Permanent/Citizen." None of those choices were circled. Instead,
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right next to it in the margin, "[fourteen] years [United States]" was handwritten
and circled.
Ryberg testified he filed multiple bail motions and was partially
successful in reducing bail. He agreed defendant's immigration status was an
important factor in defending him but could not recall the issue of defendant's
citizenship ever being raised during the bail motions. He asserted that he would
not have pursued these motions if defendant was not a citizen because, in his
view, courts routinely denied bail modifications for non-citizens.
In July 2013, Ryberg submitted another "Request for Investigation" to an
OPD investigator stating, "Liberian-born client is uncertain of his immigration
status and the impact of a felony conviction on same. Please check his
immigration status using all available resources (i.e. is he documented, green
card, citizen, etc . . .) Thanks." The OPD file did not contain a response to this
request, and Ryberg testified he did not further pursue the issue because he relied
on defendant's repeated representation that he was a citizen of the United States.
He recalled defendant was "offended by the suggestion that he[ was] not a
citizen," and became "defensive about it" when questioned. He testified
defendant insisted he was a citizen and "not to worry about it."
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In November 2013, Ryberg sent defendant a detailed letter addressing his
forty-three-year sentencing exposure if convicted at trial. The letter noted
defendant rejected the State's previous plea offer, refused to make a
counteroffer, and "want[ed] a jury trial scheduled." In the letter, Ryberg
strongly urged defendant to make a counteroffer after outlining the strengths of
the State's case.
Ryberg was asked why there was no mention of immigration
consequences in the letter. He testified it was not really a concern because he
relied "on clients for [re]presentations about these things all the time. And [he]
do[es not] investigate how to prove [his] client[s] lie[] about their background."
He stated that at the time he wrote the letter, he had "no doubt" because
defendant had "consistently [advised him] he's a citizen." He also testified he
talked to an OPD investigator regarding the July 2013 investigation request. The
investigator sought records from the federal government, but the government
would not provide them.
Ryberg identified the plea form he completed with defendant in August
2014. He explained both he and defendant filled out the form together. Ryberg
read each question to defendant, and then Ryberg wrote or circled the answers.
Specifically, regarding question 17a—whether defendant was a United States
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citizen—Ryberg testified he asked defendant whether he was a United States
citizen, and when defendant said yes, Ryberg circled yes, and crossed out the
other subsections for non-citizens. He also testified he "probably" referred
defendant to an immigration attorney when he first interviewed him.
Ryberg also identified the September 2014 pre-sentence report ("PSR")
prepared by a probation officer. The PSR showed defendant was a United States
citizen, had a social security number and driver's license, went to high school in
New Jersey, and had lived in Newark since 1999. Ryberg reviewed the PSR
with defendant, and defendant told him everything was accurate.
Defendant testified he had come to the United States in 1999 with his
mother, brother, and sister. He stated he was arrested in December 2012 in
Newark and transferred to Ocean County Jail in connection with the Toms River
robbery. He testified he was truthful when asked questions during booking and
when he was interviewed for public defender representation. He claimed he
never stated he was a United States citizen, but instead was a green card holder.
Defendant noted he was never presented with a non-citizenship form or
questioned about his citizenship status. He admitted receiving Ryberg's
November 2013 letter and understood his exposure if convicted at trial. He
acknowledged he could read and write in English. After considering Ryberg's
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advice, defendant decided to plead guilty. He explained Ryberg read and
reviewed the entire plea form with him. However, he claimed that when Ryberg
questioned him regarding question 17a—"Are you a citizen of the United
States?"—he replied "no, I'm a green card holder." Defendant admitted Ryberg
circled the answers to the plea form questions, and defendant initialed and
signed the form, but he denied going over the answers with Ryberg to make sure
they were correct. At the time of his plea, he testified he had no concerns about
being deported.
Defendant recalled his interview for the PSR and asserted he answered the
questions accurately. He specifically remembered the probation officer asking
him if he was a citizen, to which he replied, "no. I am a permanent resident of
the United States." After defendant was shown the PSR, he recalled that plea
counsel reviewed it with him before sentencing.
Defendant alleged he was shocked when he learned of his possible
deportation, sometime in 2013, after an immigration officer visited him in prison
after sentencing. He testified he was released from state custody into ICE
custody and deported in June 2019. On cross-examination, defendant conceded
he received Ryberg's November 2013 letter regarding his exposure at trial and
understood the risks. He testified he was "100 percent sure [he] would not have
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pled guilty" and "would have continued [to] trial" if he knew he was going to be
deported. He stated the risk of a longer sentence was better than "giving up and
being sent back to a country [he knew] nothing about."
The PCR judge advised the parties about defendant's August 2013 plea in
Hunterdon County and provided them the plea form, wherein defendant
answered that he was not a United States citizen and that he understood a guilty
plea may result in his removal from the United States. On August 11, 2021, the
judge reopened the hearing, and defendant provided further testimony regarding
the Hunterdon plea.
Defendant testified he was charged in Hunterdon County with receiving
stolen property and other disorderly persons offenses. In August 2013, he
discussed with his Hunterdon attorney a potential plea to the disorderly persons
offense. He detailed how counsel reviewed the plea with him and admitted to
initialing each page and signing the last page. He recalled advising his attorney
he was not a citizen of the United States. He also recalled answering yes in
response to question 17b, which states: "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 being able to legally enter or re-enter the
United States?"
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Defendant testified he understood his right to seek advice concerning the
effect a guilty plea would have on his immigration status. He testified he did
not seek this advice because his Hunterdon attorney had already discussed the
matter with an immigration attorney and concluded that a disorderly persons
offense would not result in immigration consequences because it was "not
something serious." He asserted he "answered [his Hunterdon attorney] . . . the
same way that [he] answered . . . Ryberg, . . . that [he was] not [a United States]
citizen."
On cross-examination, the State confronted defendant with his sworn
testimony before the Hunterdon Vicinage judge, and defendant admitted he
signed, initialed, and "read and underst[ood] everything" in the plea form. He
also testified he told the Hunterdon judge all his answers were truthful.
Regarding his testimony that the Hunterdon charge was "not something serious,"
the State asked defendant whether he believed the first-degree robbery charge
in this case was serious. Defendant initially answered "[n]o." Defendant
ultimately stated he recognized robbery to be serious "[w]hen it comes to the
superior courts" but not for immigration purposes.
On August 19, 2021, Judge Guy P. Ryan denied defendant's PCR petition
in a comprehensive and well-reasoned written opinion. This appeal followed.
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II.
Defendant raises the following point on appeal:
POINT ONE
[DEFENDANT] IS ENTITLED TO RELIEF ON HIS
CLAIM THAT HIS ATTORNEY RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL BY
FAILING TO ADVISE HIM ADEQUATELY ABOUT
THE DEPORATION CONSEQUENCES OF HIS
PLEA.
Defendant argues the judge correctly found that Ryberg failed to provide
effective assistance of counsel, but erroneously ruled that he failed to establish
the errors were prejudicial. Had he been advised of the deportation
consequences, defendant asserts he would not have pled guilty to robbery and
instead would have opted to proceed to trial, notwithstanding that he faced a
significantly higher sentence if convicted.
We review a PCR court's conclusions of law de novo. State v. Nash, 212
N.J. 518, 540-41 (2013). Where, as here, the court has conducted an evidentiary
hearing on a PCR petition, we defer to the "court's factual findings based on its
review of live witness testimony," id. at 540, because of its "opportunity to hear
and see the witnesses and to have the feel of the case, which a reviewing court
cannot enjoy." State v. Nuñez-Valdéz, 200 N.J. 129, 141 (2009) (quoting State
v. Elders, 192 N.J. 224, 244 (2007)). We must affirm the PCR court's factual
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findings unless they are not supported by "sufficient credible evidence in the
record" and "are so clearly mistaken that the interests of justice demand
intervention and correction." Ibid. (quoting Elders, 192 N.J. at 244) (internal
quotation marks omitted).
To reverse a conviction based on ineffective assistance of counsel, a
defendant must demonstrate that: (1) "counsel's performance was deficient" and
(2) counsel's "errors were so serious as to deprive the defendant of a fair trial."
Strickland v. Washington, 466 U.S. 668, 687 (1984); see State v. Fritz, 105 N.J.
42, 58 (1987) (adopting the Strickland two-part test in New Jersey). "With
respect to both prongs of the Strickland test, a defendant asserting ineffective
assistance of counsel on PCR bears the burden of proving his or her right to
relief by a preponderance of the evidence." State v. Gaitan, 209 N.J. 339, 350
(2012).
Under the first prong, counsel's representation must be objectively
unreasonable. State v. Pierre, 223 N.J. 560, 578 (2015). Under the second
prong, as is relevant on this appeal, a defendant must "affirmatively prove" there
is "a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." State v. Gideon, 244 N.J.
538, 551 (2021) (quoting Strickland, 466 U.S. at 693-94). "A reasonable
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probability is a probability sufficient to undermine confidence in the outcome."
Ibid. (quoting Strickland, 466 U.S. at 694). Proof of prejudice under
Strickland/Fritz's second prong "is an exacting standard." Ibid. (quoting State
v. Allegro, 193 N.J. 352, 367 (2008)).
In the specific context of showing prejudice after having entered a guilty
plea, a defendant must prove "that there is a reasonable probability that, but for
counsel's errors, [he] would not have pled guilty and would have insisted on
going to trial." Nuñez-Valdéz, 200 N.J. at 139 (quoting State v. DiFrisco, 137
N.J. 434, 457 (1994)). In other words, "a petitioner must convince the court that
a decision to reject the plea bargain would have been rational under the
circumstances." State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014)
(quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)).
Here, the judge found Ryberg "to be a credible and sincere witness"
because, given his unique status as a naturalized citizen, he was "particularly
vigilant to the immigration consequences facing his non-citizen clients." The
judge "categorically reject[ed] any claim plea counsel intentionally
misrepresented to the court defendant was a [United States] citizen after
defendant allegedly advised him [he] was a green card holder."
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The judge also found defendant's testimony "unworthy of belief in
material respects." He "reject[ed defendant's] claims to have not noticed both
the Ocean plea form and the PSR recited he was a United States citizen." The
judge stated:
Defendant apparently expects the court to believe not
one but two committed professionals, an Assistant
Deputy Public Defender and a Senior Probation
Officer, falsely and deliberately reported to the
Superior Court that defendant was a [United States]
citizen when they were expressly told he was not. The
court rejects that contention as totally lacking in
credibility.
The judge reached "the inescapable conclusion defendant was untruthful
to both plea counsel and the probation officer regarding citizenship questions."
He further concluded:
[D]efendant fully recognized his non-citizen status and
the likelihood of deportation before he entered a guilty
plea in Ocean County, having discussed the issue with
his attorney in Hunterdon. Having been thoroughly
advised about immigration consequences in Hunterdon
County and recognizing those consequences applied to
"serious" charges, defendant deliberately concealed his
non-citizenship to plea counsel and the PSR
investigator in Ocean County on the erroneous hope
immigration officials would not be alerted to his guilty
plea to armed robbery.
The judge found Ryberg had sufficient information to initiate an
investigation surrounding defendant's citizenship and in fact, did so. He found
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it "inconceivable" Ryberg would have "arbitrarily dropped the issue without a
satisfactory resolution." He concluded defendant "falsely advised plea counsel
'not to worry' about the issue," and that "plea counsel's testimony [was]
completely credible in this regard." Nevertheless, because the OPD file did not
appear to properly preserve Ryberg's notes, the judge determined defendant "just
barely satisfied" the deficiency prong.
However, the judge found defendant failed to meet the prejudice prong
under Strickland/Fritz because he failed to show that a decision to reject the plea
would have been rational under the circumstances. Defendant faced a lengthy
term of incarceration—a maximum mandatory period of parole ineligibility of
twenty-six and one-half years. The judge also noted the significant strength of
the State's case, and defendant's limited exposure under the plea was to a
maximum sentence of eight years subject to NERA. He further found defendant
not credible in his assertion "that he would have '100 [percent] gone to trial' as
unworthy of belief" and a "post-hoc rationalization after defendant's attempt to
'game the system' failed." Therefore, defendant could not show prejudice by
Ryberg's failure to conclude the immigration status investigation and that
defendant's decision to reject a very favorable plea and risk spending his adult
life in prison was not rational.
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We reject defendant's challenge to Judge Ryan's prong two findings
because they were supported by ample credible evidence in the record.
Accordingly, we affirm substantially for the reasons set forth in his opinion. We
add the following comments.
The judge found defendant failed to meet the prejudice prong because a
decision to reject the plea would not have been rational under the circumstances
as defendant was facing a maximum mandatory period of parole ineligibility of
twenty-six and one-half years. The judge commented defendant "cavalierly
discount[ed] the severity of the charges he was facing as well as the mountain
of evidence the State had against him regarding the . . . robbery." The strength
of the State's case (fingerprints at the robbery scene, video footage, positive
eyewitness identification, a victim recording defendant's license plate as he left
the scene), coupled with defendant's reduced exposure under the plea, support
Judge Ryan's determination defendant was not credible in his assertion that he
would have proceeded to trial.
The judge's conclusions that defendant was "unworthy of belief" and only
advanced "a post-hoc rationalization after [his] attempt to 'game the system'
failed" is supported by the record. While "even the smallest chance of success
at trial may look attractive" from defendant's perspective, Lee v. United States,
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582 U.S. 357, 358 (2017), defendant's assertion that he would have gone to trial
had he known of immigration consequences was undermined by the fact that he
already knew there might be immigration consequences based on his Hunterdon
plea. Defendant also understood that robbery was a serious offense. Thus, even
if Ryberg's representation was deficient, defendant failed to establish the
requisite prejudice because he already knew he could be subject to deportation
for a more serious crime.
Therefore, the judge did not err in finding defendant failed to satisfy the
prejudice prong of Strickland/Fritz, and we discern no basis on which to disturb
his findings. To the extent we have not addressed any remaining arguments, we
have determined they are without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
Affirmed.
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