STATE OF NEW JERSEY VS. GEORGE K. ASANTE (14-04-0268, CUMBERLAND COUNTY AND STATEWIDE AND 16-01-0070, ATLANTIC COUNTY AND STATEWIDE) (CONSOLIDATED) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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 NOS. A-5244-17T4
A-0475-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GEORGE K. ASANTE,
Defendant-Appellant.
Submitted November 19, 2019 – Decided December 11, 2019
Before Judges Fisher and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 14-04-
0268 and Atlantic County, Indictment No. 16-01-0070.
Joseph E. Krakora, Public Defender, attorney for
appellant (Janet Anne Allegro, Designated Counsel, of
counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Lauren Bonfiglio, Deputy Attorney
General, of counsel and on the briefs).
PER CURIAM
In these appeals, calendared back-to-back and consolidated for purposes
of our opinion, defendant George K. Asante seeks reversal of two Law Division
orders, denying his petitions for post-conviction relief (PCR) without an
evidentiary hearing. Born in Ghana, defendant immigrated to the United States
in 1996. At the time of his guilty pleas, which were entered sixteen months apart
in two different vicinages, defendant stated he was a United States citizen. But,
after entry of the second guilty plea, defendant was detained by U.S.
Immigration and Customs Enforcement. Prior to his deportation in 2018,
defendant sought PCR from both convictions, claiming his plea attorneys should
have ascertained his status in this country, despite defendant's sworn statements
that he was a United States citizen. We reject defendant's arguments and affirm
both orders under review.
I.
We commence our review with a discussion of the relevant legal
principles, which are common to both appeals. Where, as here, the trial court
does not conduct an evidentiary hearing on a PCR petition, we may review de
novo the factual inferences the court has drawn from the documentary record.
State v. O'Donnell, 435 N.J. Super. 351, 373 (App. Div. 2014). We also review
de novo the court's conclusions of law. State v. Harris, 181 N.J. 391, 420 (2004).
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When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, entitlement to the requested relief.
State v. Preciose, 129 N.J. 451, 459 (1992). To sustain that burden, the
defendant must allege and articulate specific facts, which "provide the court
with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J.
565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999). To establish a prima facie claim of ineffective assistance of counsel, the
defendant must demonstrate a reasonable likelihood of success under the test set
forth in Strickland v. Washington, 466 U.S. 668 (1984). That is, the defendant
must show: (1) the deficiency of his counsel's performance; and (2) prejudice
to his defense. Id. at 687; see also State v. Fritz, 105 N.J. 42, 58 (1987)
(adopting the Strickland two-pronged analysis in New Jersey) (Strickland/Fritz
test). "[I]n order to establish a prima facie claim, [the defendant] must do more
than make bald assertions that he was denied the effective assistance of counsel.
He must allege facts sufficient to demonstrate counsel's alleged substandard
performance." Cummings, 321 N.J. Super. at 170.
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Under the first prong, the defendant must demonstrate that "counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. Under the
second prong, the defendant must show "that counsel's errors were so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid.
That is, "there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different." Id. at 694. In
the context of a guilty plea, our Supreme Court has long recognized the
defendant must demonstrate "but for counsel's errors, [he] would not have pled
guilty and would have insisted on going to trial." State v. Nunez-Valez, 200
N.J. 129, 139 (2009) (citation omitted).
It is now well-settled that a defense attorney "must tell a client when
removal is mandatory – when consequences are certain" in order to provide
effective assistance of counsel. State v. Gaitan, 209 N.J. 339, 380 (2012).
Accordingly, "when counsel provides false or affirmatively misleading advice
about the deportation consequences of a guilty plea, and the defendant
demonstrates that he would not have pled guilty if he had been provided with
accurate information, an ineffective assistance of counsel claim has been
established." Id. at 351.
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Our courts have not, however, imposed on counsel an obligation to advise
about the potential for removal when the defendant expressly indicates under
oath that he is a citizen. We consider both appeals in view of these standards.
II. The Cumberland County Appeal (A-5244-17)
Defendant was charged in a two-count Cumberland County indictment
with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and second-
degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), after his
girlfriend reported she had observed defendant's "legs thrusting in a motion
consistent with sexual intercourse" with his ten-year-old biological daughter.
DNA evidence confirmed the presence of defendant's semen on the child's shirt
and underwear. The child acknowledged her father had sexually assaulted her
on numerous occasions during the prior three years.
In January 2015, defendant pled guilty to amended charges of fourth-
degree criminal sexual contact, N.J.S.A. 2C:14-3(b), and third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Under the terms of a
negotiated plea agreement, the State agreed to recommend a probationary
sentence; defendant agreed to waive his right to appeal.
Defendant completed a written plea form and stated "yes" in response to
question 17(a), which asked "Are you a citizen of the United States?" During
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the plea proceeding, defendant confirmed under oath his answers to the
questions on the plea form were correct and he "read and understood th[e]
document . . . ."
The Uniform Defendant Intake (UDI) form in the ensuing presentence
report (PSR) indicated defendant was a United States citizen, who was born in
West Africa. During the sentencing hearing, counsel indicated she had reviewed
the PSR with defendant and they had "no additions or corrections . . . ."
Defendant was sentenced to a five-year probationary term and ordered to register
as a sex offender pursuant to Megan's Law.
Defendant filed a timely PCR petition, alleging plea counsel was
ineffective by providing "[m]isinformation and not mentioning [i]mmigration
consequences pertaining to [the] plea agreement." Assigned counsel filed a
brief, noting defendant was deported before he could sign an affidavit in support
of his petition.
During oral argument, PCR counsel provided to the judge a copy of
defendant's "rap" sheet, which indicated defendant was not a United States
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citizen.1 PCR counsel argued plea counsel should have investigated defendant's
immigration status based on his country of birth and the conflicting information
concerning his citizenship. PCR counsel further claimed defendant would not
have entered his guilty plea had he been advised of the potential immigration
consequences.
In a terse oral decision, the PCR judge applied the Strickland/Fritz test,
and concluded plea counsel's performance was deficient. According to the
judge, plea counsel "should have noticed" the rap sheet she received "almost
contemporaneous[ly] with the plea" stated "defendant was not a citizen." The
judge, however, found defendant failed to support counsel's argument that he
would have gone to trial especially because he would have been "facing a first
[-]degree charge and the penalties that come with it . . . ."
On appeal, defendant presents the following point for our consideration:
THE COURT ERRED IN DENYING DEFENDANT'S
PETITION FOR [PCR] WITHOUT AFFORDING HIM
AN EVIDENTIARY HEARING SINCE PLEA
COUNSEL WAS INEFFECTIVE FOR NOT
INVESTIGATING THE SIMPLE TASK OF
CONFIRMING DEFENDANT WAS NOT A
CITIZEN, AS INDICATED IN HIS RAP SHEET,
AND DEFENDANT WAS THEREBY PREJUDICED
1
Because defendant had been deported, PCR counsel waived his appearance at
the hearing. The PCR judge was not the same judge who entered defendant's
guilty plea.
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BY PLEADING GUILTY TO A DEPORTABLE
OFFENSE[.]
We have considered these arguments in light of the record and applicable
legal standards. We affirm for reasons other than those expressed by the PCR
judge. See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011)
(recognizing that an appellate court is "free to affirm the trial court's decision
on grounds different from those relied upon by the trial court").
We part ways with the PCR judge's conclusion that defendant satisfied the
first prong of the Strickland/Fritz test. Despite defendant's sworn statement in
the plea form to the contrary, the judge relied upon a hearsay statement in the
uncertified rap sheet to support his conclusion that plea counsel was ineffective.
In doing so, the judge made assumptions that are unsupported by competent
evidence in the record. By assuming plea counsel failed to observe defendant's
non-citizenship status on the rap sheet, the judge impermissibly "fill[ed] in
missing information on [his] own." N.J. Div. Youth & Family Servs. v. A.L.,
213 N.J. 1, 28 (2013). Given defendant's repeated assertions that he was a
citizen of the United States – and counsel's reasonable reliance on those
assertions – we conclude the PCR judge erred by finding defendant satisfied the
first Strickland/Fritz prong.
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Because defendant also failed to provide a sworn certification or affidavit
supporting his contention that he would have proceeded to trial had he known
he was subject to removal, we agree with the PCR judge that defendant failed to
satisfy the second Strickland/Fritz prong. See Gaitan, 209 N.J. at 375
(recognizing a defendant must support his claim with more than "bald
assertions" that "he would not have pled had he known of the deportation
consequences" of pleading guilty).
In sum, at the time of his plea, defendant represented to his attorney and
the judge that he was a United States citizen by his answer on the plea form and
by testifying he had answered truthfully. Plea counsel (and the judge) therefore
had no reason to advise defendant of the immigration consequences of a guilty
plea upon a non-citizen. "The reasonableness of counsel's actions may be
determined or substantially influenced by the defendant's own state ments or
actions. Counsel's actions are usually based, quite properly, . . . on information
supplied by the defendant." State v. DiFrisco, 174 N.J. 195, 228 (2002) (citation
omitted). "Counsel cannot be faulted for failing to expend time or resources
analyzing events about which they were never alerted." Ibid.
To the extent not addressed, defendant's remaining arguments lack
sufficient merit to warrant discussion in our written opinion. R. 2:11-3(e)(2).
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Affirmed.
***
III. The Atlantic County Appeal (A-00475-18)
In May 2016, pursuant to a negotiated plea agreement, defendant pled
guilty to third-degree possession with intent to distribute heroin, N.J.S.A. 2C:35-
5(a)(1) and N.J.S.A. 2C:35-5(b)(3), in Atlantic City. The State agreed to dismiss
the remaining three counts charged in the Atlantic County indictment and
recommend a probationary sentence.
Prior to entering his guilty plea, defendant completed the standard plea
form with counsel, initialed each page, and signed the last page of the form. Like
the Cumberland County matter, in response to question 17(a) defendant
responded he was a United States citizen. During the plea hearing, defendant
acknowledged under oath that he understood the questions and his answers were
truthful. He confirmed his citizenship status:
JUDGE: Okay. Sir, are you a citizen of the
United States?
DEFENDANT: Yes, Your Honor.
JUDGE: And where were you born?
DEFENDANT: West Africa.
JUDGE: You were born in West Africa?
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DEFENDANT: Yes.
JUDGE: And you're a naturalized citizen?
DEFENDANT: Yes.
JUDGE: Okay. . . [W]hen did you become a
naturalized citizen?
DEFENDANT: In 2002.
JUDGE: 2002, okay. Sir, have you ever plead
guilty to anything before?
DEFENDANT: Yes, Your Honor.
JUDGE: Okay. So you understand generally
what's going on here today?
DEFENDANT: Yes, Your Honor.
JUDGE: Okay. And nonetheless, if you have
any questions, I want you to ask your
attorney . . . to alert the Court. We
will then in turn try to clarify any
confusion that you might have. But
if not, if you don't do that, I'm going
to presume . . . you understand
everything, so are we clear?
DEFENDANT: Yes, Your Honor.
The UDI annexed to defendant's PSR stated he was born in Ghana, and
twice indicated he was a United States citizen. In particular, the PSR states
defendant "[b]ecame US citizen in 2010 – NYC [sic]" and defendant's wife
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"verified the defendant's information." During the sentencing hearing, defense
counsel indicated she reviewed the PSR with defendant and did not note any
issues pertaining to defendant's citizenship. The judge sentenced defendant in
accordance with the plea agreement to two years of probation, concurrent to the
probationary term imposed on the Cumberland County indictment. Like the
Cumberland County matter, defendant did not file a direct appeal.
Instead, defendant filed a timely pro se PCR petition, asserting he was
"misinformed of [i]mmigration consequences, and unaware of possible
deportation results." Through assigned counsel, defendant argued his plea
counsel was ineffective by failing to inform him of the immigration
consequences of accepting a guilty plea.
After he was deported, defendant filed a certification in support of his
petition. Among other things, he claimed "[n]either [his] counsel, nor anyone
else, ever explained the distinction between being a lawful permanent resident
(green card holder) and a citizen of the United States" and had he known he
would have been deported as a result of his guilty plea he "would have insisted
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on going to trial."2 Defendant also denied telling the probation officials he was
a citizen.
The PCR judge, who did not enter defendant's guilty plea, issued a cogent
written decision, finding defendant failed to establish either prong of the
Strickland/Fritz test. Recounting defendant's various statements indicating he
was a United States citizen, the judge found defendant's plea counsel and the
plea judge "had no reason to question" defendant's citizenship. According to the
judge, defendant "told counsel he was a U.S. citizen. It is unreasonable and
unrealistic to impose a requirement on counsel or on the court to independentl y
verify a defendant's statements in this regard." The PCR judge therefore
concluded, "there were no potential immigration consequences of [defendant's
guilty] plea." The judge further determined defendant failed to "demonstrate[]
sufficiently that he was guaranteed to forego a plea and proceed to trial if he
knew he was potentially subject to deportation, or that he had a legitimate
defense to the charges."
On appeal, defendant presents the following arguments for our review:
THE COURT ERRED IN DENYING DEFENDANT'S
PETITION FOR [PCR] WITHOUT AFFORDING HIM
2
Defendant also claimed he would not have accepted the plea offer in
Cumberland County had he know he would have been deported and unable to
reenter the United States.
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AN EVIDENTIARY HEARING SINCE PLEA
COUNSEL WAS INEFFECTIVE FOR NOT
INVESTIGATING THE SIMPLE TASK OF
CONFIRMING WHETHER DEFENDANT WAS A
CITIZEN AND DEFENDANT WAS ABSOLUTELY
PREJUDICED BY PLEADING GUILTY
REGARDLESS OF THE STRENGTH OF HIS
DEFENSE TO THE CHARGES AGAINST HIM OR
DEPORTATION STATUS[.]
A. Plea Counsel was Ineffective for Failing to Conduct
an Extremely Simple Investigation into Defendant's
Immigration Status and then Subsequently Failing to
Properly Advise him[.]
B. Defendant was Prejudiced and the PCR Court
Misapplied the Law in Finding he was not because of a
Purportedly Weak Defense to the Charges against him
and the Fact he was already Deported[.]
Notwithstanding defendant's assertions at the plea hearing, he argues his
plea counsel was ineffective because the record evinces sufficient confusion
about his immigration status, i.e., he told the judge he became a citizen in 2002,
but the PSR states he became a citizen in 2010. Defendant claims "[t]hese
largely inconsistent dates plus the fact defendant was born in Ghana, created
enough uncertainty about his citizenship to warrant a reasonable investigation
by plea counsel."
Having considered defendant’s arguments in light of the record and
controlling legal principles, we affirm, substantially for the reasons given by the
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PCR judge in his well-reasoned opinion. Defendant’s arguments are without
sufficient merit to warrant further discussion in our written opinion. R. 2:11-
3(e)(2).
We only note it is absolutely reasonable for an attorney to assume his or
her client is being truthful about citizenship. It would be unreasonable to impose
an obligation on counsel to independently investigate the assertion. It simply
was not ineffective assistance for defendant's counsel to take defendant at his
word when he entered his guilty plea. Indeed, at best the discrepancy between
the dates defendant became a citizen underscores when he became a United
States citizen, not whether he became a citizen. We therefore agree with the
PCR judge that defendant has failed to meet either prong of the Strickland/Fritz
test.
Affirmed.
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