STATE OF NEW JERSEY VS. PRATYUSH BHAGAT (09-08-1291 AND 10-02-0300, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2638-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PRATYUSH BHAGAT,
Defendant-Appellant.
_______________________________
Argued February 12, 2018 – Decided July 16, 2018
Before Judges Sabatino and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
Nos. 09-08-1291 and 10-02-0300.
Michael S. Allongo argued the cause for
appellant (The Allongo Law Firm, LLC,
attorneys; Michael S. Allongo, on the brief).
Nancy A. Hulett, Assistant Prosecutor, argued
the cause for respondent (Andrew C. Carey,
Middlesex County Prosecutor, attorney; Nancy
A. Hulett, of counsel and on the brief).
PER CURIAM
Defendant Pratyush Bhagat appeals from the January 13, 2017
order denying reconsideration of his petition for post-conviction
relief (PCR). For the reasons that follow, we affirm.
Defendant was born in India and is not a citizen of the United
States. He was a lawful resident of this country with a visitor's
visa and later obtained a student visa while attending college.
In two separate indictments, defendant was charged with nine
controlled dangerous substance (CDS) possession or distribution
counts: seven stemming from an April 2009 arrest and two from a
January 2010 arrest that occurred while he was out on bail.
Defendant initially retained a lawyer to represent him in
these matters. After defendant was denied admission to drug court,
the lawyer allegedly planned to file a motion to suppress evidence
on defendant's behalf. However, the night before the suppression
hearing, defendant retained a new lawyer. The second lawyer,
defendant's plea counsel, then began negotiating with the State.
On April 15, 2010, defendant married his then-fiancée, an
American citizen, allegedly acting on plea counsel's advice to
obtain lawful residency. The next day, defendant pled guilty to:
second-degree possession with the intent to distribute cocaine,
N.J.S.A. 2C:35-5(a)(1) and 2C:35-5(b)(2); and second-degree
possession with the intent to distribute heroin, N.J.S.A. 2C:35-
5(a)(1) and 2C:35-5(b)(2). In exchange, the State agreed to
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dismiss all other counts from the indictments and recommend a
consecutive sentence of five years for the first indictment and
three years for the second indictment.
A different lawyer, from the same office as plea counsel,
represented defendant at the plea hearing. During the hearing,
the prosecutor asked defendant if he reviewed the plea form, and
defendant acknowledged he did. The prosecutor then specifically
addressed defendant's status as an immigrant, asking "[d]o you
understand that, there is a strong likelihood, that once you plead
guilty, you probably will be deported back to India?" Defendant
responded, "[y]es." In addition, the plea judge explained to
defendant that "pleading guilty will subject [him] to
deportation." Again, defendant responded that he understood. The
court ultimately accepted defendant's guilty plea.
After entering his guilty plea, but before sentencing,
defendant began the process of attempting to gain resident status
as the immediate relative of an American citizen. According to
defendant, he believed he would be approved since he was married
to an American citizen.
Defendant then retained a different law firm to represent him
at sentencing on July 26, 2010, where sentencing counsel provided
the court with a history of defendant's case. In pertinent part,
he argued, "the tragedy of all of this not only is he is going to
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jail – nobody wants to go to jail – he's going to be deported.
It's almost a guarantee based upon the record when he gets paroled
out of the State Prison system." The court sentenced defendant
in accordance with the plea agreement to an aggregate term of
eight years.
On January 10, 2011, the United States Department of Homeland
Security notified defendant of its intention to deport him because
of the convictions. Thereafter, on February 10, 2012, an
immigration court ordered defendant removed from the United
States.
On July 24, 2015, defendant filed a petition for PCR, arguing
plea counsel provided ineffective assistance of counsel for
failing to advise him of the mandatory immigration consequences
of pleading guilty. At the PCR evidentiary hearing, plea counsel
testified he recalled defendant's case in particular because
defendant offered him drugs in lieu of payment. He testified he
did not give defendant immigration advice, and if asked, he would
have referred defendant to an immigration attorney. Plea counsel
also denied advising defendant to marry his then-fiancée in order
to avoid deportation. He stated he would have advised defendant
that the crimes charged were deportable offenses, but was not
confident he told defendant deportation was mandatory. During
cross-examination, plea counsel testified he knew of defendant's
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alien status and recalled telling defendant and his parents that
defendant would "very likely" be deported. Plea counsel maintained
defendant was more concerned with the length of his prison sentence
than deportation.
Defendant testified and offered a different version of his
consultation with plea counsel. Defendant denied offering drugs
in exchange for legal services. When the deportation issue was
discussed, defendant testified plea counsel leaned in and said,
"Why don't you get married to an American citizen?" Defendant
denied plea counsel gave him the name of an immigration attorney
or reviewed the plea forms with him. He further testified plea
counsel did not advise him that a guilty plea would result in
mandatory deportation, a lifetime bar to American citizenship, and
mandatory detention until removal.
On September 2, 2016, the trial judge denied defendant's
petition in a written opinion. The judge found plea counsel was
a credible witness and defendant was not credible. The judge
rejected defendant's contention that plea counsel suggested
marriage to avoid deportation. The judge reasoned the plea form,
which defendant reviewed with the attorney who appeared for the
entry of the plea, and defendant's colloquy with the plea judge,
illustrated he knew he was subject to deportation. Moreover, the
judge noted defendant testified he was satisfied with the plea
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deal because it reduced his exposure to jail time. Ultimately,
the court found defendant did not satisfy his burden under either
prong of the Strickland1 standard.
Defendant moved for reconsideration of his PCR petition, and
after oral argument, the court denied this motion on January 13,
2017. This appeal followed.
On appeal, defendant raises the following arguments:
THE TRIAL COURT FAILED TO CONSIDER THAT EVEN
IF [PLEA COUNSEL] HAD NOT GIVEN ANY INCORRECT
ADVICE ABOUT MARRIAGE, [PLEA COUNSEL] FAILED
TO FULFILL HIS DUTY UNDER PADILLA2 BECAUSE HE
FAILED TO ADVISE MR. BHAGAT THAT DEPORTATION
WAS NOT JUST POSSIBLE, BUT MANDATORY.
THE TRIAL COURT ERRED IN CONSIDERING
STATEMENTS BY THE JUDGE AND THE PROSECUTOR
REGARDING DEPORTATION AS RELIEVING DEFENSE
COUNSEL OF HIS OBLIGATION UNDER PADILLA.
THE TRIAL COURT ERRED IN FINDING THAT
STATEMENTS BY THE TRIAL COURT AND PROSECUTOR
CURED THE PREJUDICE CAUSED BY [PLEA COUNSEL]'S
INEFFECTIVENESS.
THE TRIAL COURT ERRED IN EFFECTIVELY PLACING
A RETROACTIVE AFFIRMATIVE OBLIGATION ON MR.
BHAGAT TO HAVE ANSWERED YES OR NO QUESTIONS
WITH FREE-FORM ANSWERS DURING HIS PLEA
COLLOQUY.
THE TRIAL COURT IMPROPERLY CONSIDERED
STATEMENTS AT THE TIME OF SENTENCING AS A
REFLECTION OF KNOWLEDGE AND UNDERSTANDING AT
THE TIME OF THE PLEA.
1
Strickland v. Washington, 466 U.S. 668 (1984).
2
Padilla v. Kentucky, 559 U.S. 356 (2010).
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THE TRIAL COURT ERRED IN MAKING ITS
CREDIBILITY FINDINGS.
The Trial Court failed to give sufficient
weight to the filing of the immigration
petition.
The Trial Court failed to consider that
prior to hiring [plea counsel], Mr.
Bhagat was preparing to go to trial.
To prevail on a claim of ineffective assistance of counsel,
defendant must meet the two-prong Strickland test: he must show
that (l) counsel's performance was deficient and he made errors
that were so egregious counsel was not functioning effectively as
guaranteed by the Sixth Amendment to the United States
Constitution; and (2) "there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding
would have been different." Strickland, 466 U.S. at 687; State
v. Fritz, 105 N.J. 42, 52 (1987).
Under the first prong, "counsel is strongly presumed to have
rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment." Strickland,
466 U.S. at 690. We must determine whether the acts or omissions
of counsel "were outside the wide range of professionally competent
assistance." Ibid. Adequate assistance of counsel must be
measured by a standard of "reasonable competence." State v. Jack,
144 N.J. 240, 248 (1996) (citing Fritz, 105 N.J. at 53).
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Under the second prong of Strickland, defendant must prove
prejudice. Fritz, 105 N.J. at 52. He must show a "reasonable
probability" that counsel's deficient performance affected the
outcome of the proceeding. Strickland, 466 U.S. at 694. A
reasonable probability is defined as "a probability sufficient to
undermine confidence in the outcome." Ibid.
We review a PCR petition with deference to the trial court's
factual findings. State v. Nash, 212 N.J. 518, 540 (2013)
(citations omitted). We "give deference to those findings of the
trial judge which are substantially influenced by his opportunity
to hear and see the witnesses and to have the 'feel' of the case,
which a reviewing court cannot enjoy." State v. Elders, 192 N.J.
224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161
(1964)). However, all legal conclusions are reviewed de novo.
State v. Harris, 181 N.J. 391, 415-16 (2004) (citing Toll Bros.
v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).
Defendant argues plea counsel did not provide effective
assistance of counsel because, under Padilla, 559 U.S. at 356, he
should have advised defendant he would be mandatorily deported
after pleading guilty. In Padilla, the United States Supreme
Court held counsel has an affirmative duty to inform a criminal
defendant of the immigration consequences of a guilty plea. 559
U.S. at 368-69. The Court held when deportation is "truly clear
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. . ., the duty to give correct advice is equally clear." Id. at
369. We have said counsel's "failure to advise a noncitizen client
that a guilty plea will lead to mandatory deportation deprives the
client of the effective assistance of counsel guaranteed by the
Sixth Amendment." State v. Barros, 425 N.J. Super. 329, 331 (App.
Div. 2012) (citing Padilla, 559 U.S. at 369). We note Padilla was
issued by the Supreme Court of the United States on March 31,
2010, two weeks prior to the entry of defendant's guilty plea.
There is no question that pursuant to the Immigration and
Nationality Act (INA)3 defendant was subject to mandatory
3
Under 8 U.S.C. § 1227,
Any alien . . . in and admitted to the United
States shall, upon the order of the Attorney
General, be removed if the alien is within one
or more of the following classes of deportable
aliens:
. . . .
(2) Criminal offenses.
(A) General crimes.
. . . .
(iii) Aggravated felony. Any alien who is
convicted of an aggravated felony at any time
after admission is deportable.
. . . .
(B) Controlled substances.
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deportation for the charged offenses. The statutory definition
of aggravated felony in the INA includes "illicit trafficking in
a controlled substance. . . ." 8 U.S.C. § 1101(a)(43)(B). As
such, by pleading guilty to two counts of possession of CDS with
the intent to distribute, defendant was subject to mandatory
deportation.
Plea counsel concedes he never gave defendant any immigration
advice. This omission satisfies the first prong of Strickland.
Padilla, 559 U.S. at 371 ("It is quintessentially the duty of
counsel to provide her client with available advice about an issue
like deportation, and the failure to do so clearly satisfies the
first prong of the Strickland analysis.") (citation omitted).
Moving to the second prong of Strickland, we consider whether
defendant was prejudiced by counsel's error. In the context of
guilty pleas, this prong is satisfied when "defendant demonstrates
that he would not have pled guilty if he had been provided with
accurate information . . . ." State v. Gaitan, 209 N.J. 339, 351
(2012) (citing State v. Nunez-Valdez, 200 N.J. 129, 131 (2009)).
(i) Conviction. Any alien who at any time
after admission has been convicted of a
violation of . . . any law or regulation of a
State, the United States, or a foreign country
relating to a controlled substance . . . .
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Defendant argues he would not have pled guilty if he knew he
would be mandatorily deported. The trial judge did not find
defendant credible on this contention. There is sufficient,
credible evidence in the record to support the judge's credibility
determination. At the plea hearing, defendant and his lawyer
reviewed the plea form that indicated a likelihood of deportation.
During the plea colloquy, the prosecutor told defendant he would
likely be deported. The plea judge was less equivocal, explaining
that pleading guilty would subject him to deportation, which
defendant acknowledged. At no point did defendant raise any
questions or request to discuss anything further with his attorney.
In fact, defendant indicated he was satisfied with his counsel's
performance.
Thereafter, during sentencing, defendant's sentencing lawyer
stated defendant had decided to forgo a motion to withdraw his
guilty plea and that defendant "is going to be deported."
Defendant could have explored withdrawing his guilty plea if his
main concern truly was deportation. However, as the trial court
found, defendant's primary concern was to reduce his prison time.
Accordingly, we do not find the trial judge erred finding defendant
did not satisfy the second prong of Strickland.
Defendant's other arguments are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
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Affirmed.
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