STATE OF NEW JERSEY VS. PRAMOD BHAGAT (08-10-1614, BERGEN COUNTY AND STATEWIDE) (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NOT FOR PUBLICATION WITHOUT THE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 NO. A-2251-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PRAMOD BHAGAT,
Defendant-Appellant.
___________________________
Submitted December 11, 2018 – Decided January 11, 2019
Before Judges Geiger and Firko.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Accusation No. 08-10-1614.
Michael S. Allongo, attorney for appellant (Michael J.
Cennimo, on the brief).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Ian C. Kennedy, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Pramod Bhagat appeals the denial of his second petition for
post-conviction relief (PCR) without an evidentiary hearing. We affirm.
I.
In August 2007, defendant engaged in online communications in a Yahoo
chatroom with an undercover officer whom defendant believed to be a fourteen-
year-old girl named "Sam" or "Samantha." During the course of the online
conversations, defendant and the undercover officer discussed meeting for a
movie date, kissing, and touching Sam underneath her shirt and skirt. Defendant
intended to touch the vagina of the person he believed to be a fourteen -year-old
girl. On August 23, 2007, defendant travelled to Upper Saddle River to meet
Sam for the previously discussed movie date. Upon arrival to the address
supplied by the undercover officer, defendant was arrested and found to have
condoms on his person.
Defendant is not a citizen of the United States; he is a citizen of India. He
resided in the United States as a permanent resident alien. He is fluent in English
and highly educated, having obtained a master's degree in mathematics.
During a pre-indictment plea conference on October 22, 2008, the State
offered defendant a plea agreement of pleading guilty to a single count of fourth-
degree attempted criminal sexual contact with a victim at least thirteen but less
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than sixteen years of age and a perpetrator more than four years older, N.J.S.A.
2C:14-3(b) and 2C:5-1, in exchange for a recommended sentence of non-
custodial probation, undergoing a psychological evaluation, registration as a sex
offender under Megan's Law, N.J.S.A. 2C:7-2, prohibition from visiting social
media websites, and applicable fines and penalties. The plea offer did not
include parole supervision for life. Defendant waived his right to an indictment
and entered into the plea agreement during the conference, pleading guilty to an
accusation.
During the plea hearing, defendant testified he reviewed, understood, and
answered each question on the plea forms with the assistance of counsel.
Specifically, question seventeen prompted: "Do you understand that if you are
not a United States citizen or national, you may be deported by virtue of your
plea of guilty?" Defendant circled "Yes" in response to that question. Question
twenty-three asked: "Are you satisfied with the advice you have received from
your lawyer?" Defendant circled "Yes" in response to that question.
Defendant was asked by the court, "do you understand that as a result of
this guilty plea, you could be deported or have some other negative consequence
impact your immigration status?" He answered, "Yes." The court also asked
defendant: "Have you had enough time to talk to your attorney . . . about
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everything, including the immigration consequences and everything else?" He
answered, "Yes." The court further asked defendant if he was satisfied with his
attorney's representation of him. He again replied, "Yes."
Defendant's testimony confirmed he had signed or initialed all eight pages
of the plea forms, had read every question carefully and understood every
question, and had enough time to discuss the matter with his attorney. When
asked if he was "pleading guilty because you really are guilty," defendant
answered, "Yes, I'm guilty."
During his plea allocution, defendant testified he "chatt[ed] on Yahoo"
with a person who identified herself as a fourteen-year-old and who defendant
reasonably believed was fourteen years old. Defendant admitted that during his
chat room conversations with Sam, "some of the things that were said involved
sexual acts or sexual activity." At the time of the conversations defendant was
thirty-six years old. Defendant travelled to Upper Saddle River where he
arranged to meet Sam with the purpose of going on a date, kissing, and touching
the child's private parts, including her vagina. He admitted if "that had actually
happened it could have impaired or humiliated a fourteen-year-old girl."
Defendant was initially hesitant to admit the full extent of his crime when
he provided the factual basis for his plea, stating at one point, "I'm not that kind
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of person." Appropriately, the prosecutor stated he could not accept that,
expressing concern defendant might later attack the factual basis for the plea.
The prosecutor stated defendant "has to plead to the elements of the crime."
Defendant then admitted to committing the elements of attempted sexual contact
by acknowledging his purpose in travelling to Saddle River "was to potentially
touch the private parts of Samantha," and that at the time he arrived there it was
his "intention" to "touch her vagina."
Defendant has no other criminal history. He was sentenced in accordance
with the plea agreement on January 30, 2009. The judgment of conviction was
entered on February 2, 2009. Defendant did not move to withdraw his plea
either before or after sentencing. He did not appeal his conviction or sentence.
Defendant subsequently violated probation (VOP) and was re-sentenced on
December 14, 2012, to probation conditioned upon 180 days in jail. Defendant
did not appeal his VOP conviction or sentence.
On April 4, 2016, defendant was served with a notice to appear by the
Department of Homeland Security stating its intent to commence deportation
proceedings based on defendant's "aggravated felony" conviction pursuant to 8
U.S.C. § 1227.
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On July 21, 2016, defendant filed his first PCR petition. On November
28, 2016, the petition was dismissed without prejudice "pursuant to Rule 3:22-
6A(3) for counsel's failure to file an amended petition establishing excusable
neglect within 120 days." Through counsel, defendant filed his second PCR
petition and supporting certification on March 31, 2017. Defendant asserted his
plea counsel improperly advised him of the immigration consequences of his
guilty plea because he was only told he "might be put in removal proceedings,
not that [he] was pleading to an [a]ggravated [f]elony and that it was mandatory
that [he] be deported." In addition, defendant certifies he also consulted with an
immigration attorney regarding his immigration situation and was advised he
would not be deported.
Defendant further certified that subsequent to his plea, he met with eleven
immigration attorneys about renewing his permanent resident card and pursuing
citizenship and none advised him to pursue PCR or that deportation was
mandatory in light of his guilty plea. During oral argument, defendant expressed
his intent to adduce testimony from his plea counsel and all eleven immigration
attorneys he consulted. He also claimed he had an entrapment defense.
The PCR court heard oral argument on September 14, 2017, took the
matter under advisement, and issued a December 8, 2017 order and ten -page
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written decision denying defendant's second PCR petition without an
evidentiary hearing. This appeal followed.
Defendant argues:
POINT I
THE COURT ERRED IN RULING THAT
APPELLANT FAILED TO DEMONSTRATE
EXCUSABLE NEGLECT SUFFICIENT TO JUSTIFY
RELAXATION OF THE TIME BAR AT ISSUE.
POINT II
THE COURT ERRED IN RULING THAT
PETITIONER FAILED TO ESTABLISH A
COLORABLE CLAIM OF INNOCENCE BECAUSE
THE COURT INCORRECTLY RULED THAT
PETITIONER’S STATEMENTS CONSTITUTED AN
ADMISSION OF GUILT, AND IMPLICIT[]LY
RULED THAT THE FACTUAL BASIS FOR THE
GUILTY PLEA WAS ADEQUATE, DESPITE
FAILING [TO] ADDRESS PETITONER'S
ARGUMENT THAT A NECESSARY ELEMENT OF
THE OFFENSE, NAMELY THE INTENT TO HAVE
SEXUAL CONTACT, WAS NOT ADMITTED IN
THE CONTEXT OF THE GUILTY PLEA.
POINT III
THE COURT ERRED IN RULING THAT
PETITIONER DEMONSTRATED NEITHER
INEFFECTIVE ASSISTANCE OF COUNSEL NOR
SUFFICIENT REASONS TO JUSTIFY
WITHDRAWAL OF THE GUILTY PLEA DESPITE
FAILING TO ADDRESS PETITIONER'S
ARGUMENTS REGARDING THE ISSUE OF
ENTRAPMENT.
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POINT IV
THE COURT COM[M]ITTED PLAIN ERROR BY
INCORRECTLY STATING IN THE WRITTEN
OPINION THAT THE COURT'S DECISION WAS
BASED IN PART ON "TESTIMONY ELICITED AT
THE HEARING" WHEN NO HEARING ACTUALLY
TOOK PLACE, THUS CAUSING ANY
REASONABLE PERSON TO QUESTION THE
ENTIRE DECISION. (NOT RAISED BELOW)
II.
PCR petitioners are not automatically entitled to an evidentiary hearing.
State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999); R. 3:22-10(b).
A PCR court need not grant an evidentiary hearing unless "a defendant has
presented a prima facie case in support of PCR." State v. Jones, 219 N.J. 298,
311 (2014) (citing State v. Marshall, 148 N.J. 89, 158 (1997)). "To establish
such a prima facie case, the defendant must demonstrate a reasonable likelihood
that his or her claim will ultimately succeed on the merits." Marshall, 148 N.J.
at 158. The court must view the facts "in the light most favorable to defendant."
Ibid. (quoting State v. Preciose, 129 N.J. 451, 462-63 (1992)); accord R. 3:22-
10(b). We conduct a de novo review when the PCR court did not hold an
evidentiary hearing on the claim defendant now raises on appeal. State v.
Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018).
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The PCR court held defendant's second petition was time-barred. After a
careful review of the arguments in light of the record and the applicable
principles of law, we affirm, but for different reasons than stated by the PCR
court.1 We affirm the denial of defendant's petition without an evidentiary
hearing because this is his second petition for PCR and he fails to assert a
cognizable claim for relief under Rule 3:22-12(a)(2).
Defendant's first petition for PCR was dismissed without prejudice on
November 28, 2016. Defendant had ninety days to amend and refile his petition
for it to "be treated as a first petition for [the] purposes of these rules." R. 3:22-
12(a)(4). Defendant filed this petition on March 31, 2017. However, the ninety
days afforded to defendant to refile his petition expired on February 27, 2017.
R. 1:3-1. Thus, this petition must be evaluated under the rules for second or
subsequent PCR petitions.
Rule 3:22-4(b)(1) mandates the dismissal of a "second or subsequent"
PCR petition unless "it is timely under Rule 3:22-12(a)(2)[.]" Rule 3:22-
12(a)(2) states:
1
See State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) (stating an
appellate court is "free to affirm the trial court's decision on grounds different
from those relied upon by the trial court").
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Notwithstanding any other provision in this rule, no
second or subsequent petition shall be filed more than
one year after the latest of:
(A) the date on which the constitutional right asserted
was initially recognized by the United States Supreme
Court or the Supreme Court of New Jersey, if that right
has been newly recognized by either of those Courts
and made retroactive by either of those Courts to cases
on collateral review; or
(B) the date on which the factual predicate for the relief
sought was discovered, if that factual predicate could
not have been discovered earlier through the exercise
of reasonable diligence; or
(C) the date of the denial of the first or subsequent
application for post-conviction relief where ineffective
assistance of counsel that represented the defendant on
the first or subsequent application for post-conviction
relief is being alleged.
[Ibid.]
Defendant's second PCR petition is procedurally barred because he claims
no newly recognized constitutional right. R. 3:22-12(a)(2)(A). Under the Sixth
Amendment of the United States Constitution, a criminal defendant is
guaranteed the effective assistance of legal counsel in his defense. Strickland
v. Washington, 466 U.S. 668, 687 (1984). To establish a deprivation of that
right, a convicted defendant must satisfy the two-part test enunciated in
Strickland by demonstrating that: (1) counsel's performance was deficient, and
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(2) the deficient performance actually prejudiced the accused's defense. Id. at
687; accord State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-
part test in New Jersey).
"Before deciding whether to plead guilty, a defendant is entitled to 'the
effective assistance of competent counsel.'" Padilla v. Kentucky, 559 U.S. 356,
364 (2010) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970);
Strickland, 466 U.S. at 686). Our Supreme Court adopted the following test for
ineffective assistance of counsel claims in the context of a plea agreement:
To set aside a guilty plea based on ineffective
assistance of counsel, a defendant must show that (i)
counsel's assistance was not "within the range of
competence demanded of attorneys in criminal cases,"
Tollett v. Henderson, 411 U.S. 258, 266 (1973); and (ii)
"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." Hill
v. Lockhart, 474 U.S. 52, 58 (1973).
[State v. DiFrisco, 137 N.J. 434, 457 (1994) (alteration
in original).]
Defendant must also show a decision to reject the plea would have been rational
under the circumstances. See State v. Maddon, 422 N.J. Super. 475, 486 (App.
Div. 2011) (stating defendant must show "had he been properly advised, it would
have been rational for him to decline the plea offer and insist on going to trial
and, in fact that he probably would have done so").
A-2251-17T4
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In Padilla, the United States Supreme Court held the Sixth Amendment's
guarantee of a right to counsel requires defense counsel to advise their clients
whether a guilty plea carries a risk of deportation. 559 U.S. at 374. Generally,
trial counsel "need do no more than advise a noncitizen client that pending
criminal charges may carry a risk of adverse immigration consequences." Id. at
369. "But when the deportation consequence is truly clear" because "the terms
of the relevant immigration statute are succinct, clear, and explicit," such that
the removal consequences of a plea can "easily be determined from reading the
removal statute," "the duty to give correct advice is equally clear." Id. at 368-
69.
Upon review, our Supreme Court concluded Padilla established a new rule
of constitutional law within the pre-existing ineffective assistance of counsel
framework, which does not retroactively apply to cases on collateral review.
State v. Gaitan, 209 N.J. 339, 371-72 (2012). In Chaidez v. United States, the
United States Supreme Court also held Padilla does not have retroactive effect
to cases on collateral review. 568 U.S. 342, 344, 347 (2013).
Defendant pleaded guilty and was sentenced prior to the decision in
Padilla. He did not file a direct appeal. Instead, he seeks collateral review of
his plea and conviction through PCR. Thus, by the clear edicts of Gaitan and
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Chaidez, the new constitutional right adopted in Padilla does not apply to
defendant's petition.
Defendant's second PCR petition was filed within one year of the notice
of his immigration detainer. Thus, defendant's petition was arguably filed
within one year of discovery of "the factual predicate for the relief sought." R.
3:22-12(a)(2)(B); see also State v. Brewster, 429 N.J. Super. 387, 399-400 (App.
Div. 2013) (holding the defendant's PCR petition was time-barred under Rule
3:22-12(a)(2)(B) because he "consulted an attorney in 2007 and was advised that
his 1998 conviction 'could be a problem'" yet waited until 2010 to seek post -
conviction relief). Nevertheless, defendant's claim does not warrant relief
because his plea counsel was not ineffective.
Since defendant's case reached finality prior to the Supreme Court's ruling
in Padilla, collateral review of his conviction based on claims of ineffective
assistance of counsel involving immigration consequences of a guilty plea falls
under the standard adopted by our Supreme Court in State v. Nuñez-Valdéz, 200
N.J. 129 (2009). Gaitan, 209 N.J. at 373-74. Nuñez-Valdéz held an ineffective
assistance of counsel claim could be based on the provision of "misleading,
material information" about the immigration consequences of a defendant's
guilty plea. 200 N.J. at 139-40.
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Defendant claims his plea counsel provided misleading advice because
she did not advise him that pleading to an offense that constituted an aggravated
felony under federal immigration law would trigger mandatory deportation. We
disagree.
Under federal immigration law, "[t]he term 'aggravated felony' means . . .
murder, rape, or sexual abuse of a minor[.]" 8 U.S.C. § 1101(a)(43)(A). However,
as this court has noted, it "d[oes] not define the phrase 'sexual abuse of a minor.'"
State v. Telford, 420 N.J. Super. 465, 472 (App. Div. 2011). Notably, in Telford,
this court held, even under the more stringent Padilla standard, it was "hardly
'clear,' 'explicit,' 'succinct' or 'straightforward'" defendant's deportation would
"inexorably" result from his guilty plea to third-degree endangering the welfare of
a child, N.J.S.A. 2C:24-4(a), for sex offenses committed against a thirteen-year
old girl, especially when this court's "review of the case law . . . regarding the
meaning of 'sexual abuse of a minor' . . . reveal[ed] a very definite split among
the circuits." Id. at 467, 472, 475. "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, 559 U.S. at 369. Thus, in Telford, we
concluded it was not ineffective assistance of counsel for the defendant's
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attorney to advise him "that he 'might' rather than 'would' be deported." 420 N.J.
Super. at 467.
We further note the defendant in Nuñez-Valdéz was subject to deportation
as a result of his plea to fourth-degree criminal sexual contact of a seventeen-
year-old girl. 200 N.J. at 140. In this case, defendant pleaded guilty to
attempted criminal sexual contact.
More fundamentally, unlike in Nuñez-Valdéz, 200 N.J. at 141, plea
counsel here did not did not assure defendant he would not be deported. On the
contrary, according to defendant's own certification, plea counsel told him he
"might be put in removal proceedings." This statement was not affirmatively
misleading, particularly when viewed in conjunction with the language of the
plea forms and the questions the judge posed to defendant during the plea
hearing regarding immigration consequences. Nuñez-Valdéz "did not hold that
advising a client he may be deported was incorrect or deficient legal advice."
Brewster, 429 N.J. Super. at 397 (citing Nuñez-Valdéz, 200 N.J. at 138). Given
these circumstances and this court's conclusion in Telford regarding the
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ambiguity of the definition of "sexual abuse of a minor," plea counsel did not
provide affirmatively misleading advice under the Nuñez-Valdéz standard.2
Defendant's second PCR petition is also procedurally barred because he
does not allege ineffective assistance of prior PCR counsel. R. 3:22-12(a)(2)(C).
Defendant argues he established excusable neglect and enforcement of the
time bar would result in a fundamental injustice. However, as discussed above,
this is defendant's second PCR petition and that exception to the time limitations
no longer applies to second PCR petitions. Jackson, 454 N.J. Super. at 294.
We reject defendant's claim that he did not provide an adequate factual
basis for his plea. A perpetrator is guilty of criminal sexual contact if he
purposefully and intentionally touches a victim's intimate parts, either directly
or through clothing, intending to either degrade or humiliate the victim, or
sexually arouse or gratify himself, N.J.S.A. 2C:14-1(d), and the victim is at least
thirteen years old but less than sixteen years old and the perpetrator is at least
four years older than the victim, N.J.S.A. 2C:14-2(c)(4). "Intimate parts"
includes the genital area, groin, or breast of a person. N.J.S.A. 2C:14-1(e). In
2
Although defendant alleges the first immigration attorney he consulted told
him he would not be deported, incorrect advice by immigration counsel does not
constitute ineffective assistance of criminal defense counsel. Nor does the
advice given by immigration counsel after the plea was entered and defendant
was sentenced.
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the context of this case, a person is guilty of criminal attempt if they
purposefully do anything which is an act "constituting a substantial step in a
course of conduct planned to culminate in his commission of the crime."
N.J.S.A. 2C:5-1(a)(3).
Defendant admitted to engaging in conversations with Sam, a person he
believed to be a fourteen-year-old girl, for the purpose of meeting and engaging
in sexual activities with her. He admitted driving to Saddle River to meet with
Sam with the intention to touch her vagina. He admitted if that had actually
happened it could have impaired or humiliated a fourteen-year-old girl. He was
thirty-six years old at the time. We conclude the factual basis given by
defendant was adequate.
Defendant also argues he had a potentially meritorious entrapment
defense that was never raised by his trial counsel. We disagree. In State v.
Davis, this court affirmed the defendant's conviction on "several counts of
attempting to endanger the welfare of a child, endangering the welfare of a child,
and attempted sexual assault" "after an undercover investigation revealed that
he had conversed on the internet about sex and masturbation with an undercover
officer who had portrayed herself as a fourteen-year-old girl." 390 N.J. Super.
573, 580 (App. Div. 2007). We rejected the defendant's entrapment defense
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because "[n]othing prohibits the police from creating characters to conduct
undercover investigations. Rather, 'decoys, traps, and deceptions properly may
be used to apprehend those engaged in crime or to obtain evidence of the
commission of crime.'" Id. at 593 (quoting State v. Rockholt, 96 N.J. 570, 575
(1984)).
Defendant participated in a series of chat room conversations with Sam,
discussing in detail the sexual activities he sought to engage in with her. The
record does not reflect that Sam controlled or directed the commission of the
crime, or that Sam resorted to "'excessive inducements' to lure defendant." Ibid.(quoting State v. Johnson, 127 N.J. 458, 479 (1992)). Defendant has not
demonstrated an entrapment defense would have carried any probability of
success on these facts.
Finally, defendant also argues the PCR court's inaccurate statement
regarding "having heard the testimony at the hearing" undermines its entire
decision. We disagree. We consider the misstatement to be a mere scrivener's
error that escaped detection. The PCR court noted it had conducted oral
argument – not a testimonial hearing – on September, 14, 2017, the only day it
conducted a proceeding in this matter.
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To the extent they are unaddressed, defendant's remaining arguments lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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