STATE OF NEW JERSEY VS. ROGER D. COLEY (10-10-1092 AND 13-07-0726, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-0873-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROGER D. COLEY,
Defendant-Appellant.
___________________________
Submitted April 29, 2020 – Decided June 23, 2020
Before Judges Whipple and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment Nos. 10-10-1092
and 13-07-0726.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh, Chief
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Roger Coley appeals from the August 22, 2018 order denying
his petition for post-conviction relief (PCR) after an evidentiary hearing. We
previously set forth the facts in defendant's first PCR appeal in State v. Coley,
No. A-0905-16 (App. Div. April 11, 2018), where we remanded for an
evidentiary hearing to determine whether defense counsel provided false or
misleading advice as to the impact defendant's United States born children
would have on the likelihood of deportation and if so, whether the information
caused defendant to plead guilty. After a review of the arguments in light of the
record and applicable principles of law, we affirm.
On August 22, 2018, the parties appeared before the court for the remand
hearing. Defendant, represented by counsel in the courtroom, appeared by way
of an audiovisual phone call. Defendant's plea counsel, William Rohr , testified
that although he had no independent recollection of defendant's case, he
reviewed some notes he retained. Rohr's notes reflected he knew defendant was
a U.S. resident from Jamaica who came on a six-month work permit, overstayed
his visa and had an immigration detainer against him. Rohr testified it was his
understanding that defendant was going to be deported for overstaying his visa.
Rohr also testified the transcript of defendant's plea hearing reflected he
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discussed with defendant that he would be deported after completion of his
prison sentence. Under questioning from the court, Rohr stated:
I mean, taking into consideration the fact that my . . .
perception at the time was he was going to get deported
because he was undocumented. If you add to that the
fact that he's now pleading guilty to three charges, that's
going to enhance the potential for documentation. And
I think I'd have to have some insight into immigration
law in order to counteract and say regardless of the fact
that . . . the immigration authority . . . has a detainer
. . . against you and apparently want to deport you, that
you should disregard that because there's always a
potential that you may not be deported. That's not the
kind of conversation I would have had with him. I
would have had to have some sophistication in
immigration law to think of something like that.
THE COURT: So you never told him that he would not
be deported?
THE WITNESS: I . . . don't have any recollection of
conversations with him. I'm just looking at the
transcript here what I said and . . . I would have done
knowing me.
Defendant testified that Rohr only told him deportation was a possibility,
not that it was mandatory and that the criminal and immigration proceedings
were "separate and apart." Defendant also testified that had he known
deportation was mandatory, he would not have pled guilty but would have
insisted on a trial.
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In an oral decision, delivered immediately after the hearing, the PCR court
denied defendant's petition, finding defendant was advised he would be deported
as a result of his guilty plea. Although the PCR court acknowledged that Rohr
had no independent recollection of the case, and credited Rohr's testimony that
he would not have told defendant that he would not be deported because of
several factors in the case, Rohr highlighted the fact that defendant overstayed
his immigration visa, had an immigration detainer placed upon him for
deportation, and defendant's controlled dangerous substance (CDS) and CDS
gun charges required deportation.
The Court also addressed whether Rohr provided false or misleading
advice as to the impact defendant's children would have on the likelihood of
deportation. The PCR court stated:
Then we go into the area . . . of his children. And
I believe that's what the Appellate Division is
concerned about. Did Mr. Rohr ever say to the
defendant, well, you have two children, maybe because
of these children the [Immigration and Customs
Enforcement] people or the Immigration Judge will
take that into . . . account and not deport you. This is,
I believe, what the Appellate Division wants to find out.
That would be misadvice if Mr. Rohr did that.
But Mr. Rohr doesn't recall. But when I was
questioning Mr. Coley, when that topic came up, Mr.
Rohr said, I can't do anything about it. See that explains
the dichotomy why you have the separation. The
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separation is in terms of, yes, you're going to be
deported and there's nothing we can do about it. If
there's something that possibly can happen with the
children, that's a whole different area I guess of
immigration law. That's how I view this.
But, again, the Appellate Division is looking for
misadvice. And to [use] Mr. Coley's own words, when
it came to the impact of the two children, could that
possibly be some type of means of avoiding
deportation, Rohr said, no. I can't do anything about it.
When Mr. Rohr was testifying as to collateral . . .
consequences, in his mind he was saying that as far as
he was concerned as an attorney, an attorney's job is not
to give misadvice. I did not give misadvice.
And with respect to the question of, well, did you
maybe tell him with the children, that would possibly
change the picture? That's simply not in the case.
[T]here's nothing for me to believe that Mr. Rohr ever
told him anything like that. As I said before, Mr. Coley
said, Mr. Rohr told me there's nothing I can do about.
So, again, I do not see misadvice here. And I'm
going to again deny the defendant's application.
The court entered an order denying defendant's PCR petition. This appeal
followed.
On appeal defendant argues:
POINT I: THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR [PCR] BECAUSE
DEFENDANT ESTABLISHED PLEA COUNSEL
MISADVISED HIM REGARDING HOW HIS
UNITED STATES BORN CHILDREN WOULD
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IMPACT THE IMMIGRATION CONSEQUENCES
OF HIS GUILTY PLEA.
"[PCR] is New Jersey's analogue to the federal writ of habeas corpus,"
State v. Preciose, 129 N.J. 451, 459 (1991), affording an adjudged criminal
defendant a "last chance to challenge the 'fairness and reliability of a criminal
verdict . . . .'" State v. Nash, 212 N.J. 518, 540 (2013) (citation omitted). A
defendant must establish the right to PCR by a preponderance of the credible
evidence. Preciose, 129 N.J. at 459. In order to satisfy this burden, the
defendant "must do more than make bald assertions that he [or she] was denied
the effective assistance of counsel. He [or she] must allege facts sufficient to
demonstrate counsel's alleged substandard performance." State v. Cummings,
321 N.J. Super. 154, 170 (App. Div. 1999).
"The Sixth Amendment of the United States Constitution and the New
Jersey Constitution guarantee criminal defendant's the right to counsel, which
right requires that defendants receive the 'effective assistance of counsel.'" State
v. Gaitan, 209 N.J. 339, 349 (2012) (citing Strickland v. Washington, 466 U.S.
668, 686 (1984)). To establish a claim for ineffective assistance, a defendant
must satisfy a two-pronged test:
First, the defendant must show that counsel's
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
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functioning as the "counsel" guaranteed the defendant
by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors
were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable. Unless a defendant
makes both showings, it cannot be said that the
conviction or death sentence resulted from a breakdown
in the adversary process that renders the result
unreliable.
[Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42,
58 (1987) (adopting the standard in Strickland).]
In applying this test, "[a]ttorneys are held to a standard of 'reasonableness
under prevailing professional norms.'" Gaitan 209 N.J. at 350 (quoting
Strickland, 466 U.S. at 688). The attorney's performance is analyzed as of the
time of the attorney's conduct. Ibid. In the context of illustrating prejudice after
a guilty plea, a defendant must demonstrate "there is a reasonable probability
that but for counsel's errors, [he or she] would not have plead guilty and would
have insisted on going to trial." Id. at 351 (alteration in original) (quoting State
v. Nunez-Valdez, 200 N.J. 129, 139 (2009)).
When a PCR court has taken the opportunity to make "factual findings
based on its review of live witness testimony," we defer to the "court's findings
that are supported by sufficient credible evidence in the record." Nash, 212 N.J.
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at 540 (citation omitted). However, we afford no deference to the court's legal
conclusions, which we review de novo. Id. at 540-41.
When considering the plea agreements of non-citizen defendants, our
courts have found ineffective assistance where plea counsel provided false or
misleading information concerning the immigration consequences of a guilty
plea, and the defendant would not have pled guilty had he or she been adequately
informed. Nunez-Valdez, 200 N.J. at 138, 141-43. The United States Supreme
Court, in Padilla v. Kentucky, 559 U.S. 356, 367-69 (2010), held that a
constitutionally responsible attorney must inform his or her clients whether their
plea carries a risk of deportation. Padilla created a "two-tiered analytical
structure for assessing the duty of effective assistance [which] . . . distinguished
cases where it is clear that deportation is certain, from cases where the
immigration consequences of a plea are less clear . . . ." Gaitan, 209 N.J. at 356.
In situations where the deportation consequences are not straight forward,
a 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. However, a counsel's "failure to point out to a
noncitizen client that he or she is pleading to a mandatorily removable offense
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[constitutes] deficient performance of counsel." State v. Blake, 444 N.J. Super.
285, 300 (App. Div. 2016) (emphasis omitted) (quoting Gaitan, 209 N.J. at 380).
Turning to the first prong of Strickland, the PCR court found defendant's
plea counsel did not render deficient performance. Rohr was unable to recall
the specific conversations he had with defendant and could only testify based on
his notes and statements in the record and his assertion of what he would have
done under the circumstances. Nonetheless, the PCR court found him
"extremely credible." Upon review of the record, there is no basis to disturb the
credibility finding of the PCR judge.
The PCR judge relied on substantial credible evidence in determining that
Rohr did not provide false or misleading advice as to the impact defendant's U.S.
born children would have on the likelihood of deportation. The credible
evidence in the record included the fact that Rohr informed defendant on
numerous occasions that he would be deported as a result of his guilty plea, and
defendant insisted on going forward with the plea after the court offered to
adjourn so defendant could confer with an immigration attorney. Moreover,
although Rohr was unable to recall prior conversations with defendant, the PCR
court found credible his testimony he would not have told defendant he may not
be deported because defendant overstayed his immigration visa, had an
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immigration detainer for overstaying a visa, and his charges required
deportation. Although defendant testified to the contrary, we defer to the PCR
judge's determination that plea counsel's testimony was credible and defendant
was not. Nash, 212 N.J. at 540 ("Our standard of review is necessarily
deferential to a PCR court's factual findings . . . . [W]e will uphold the PCR
court's findings that are supported by sufficient credible evidence in the
record.").
Affirmed.
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