STATE OF NEW JERSEY v. DAEMIAN GARRICKS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAEMIAN GARRICKS,

Defendant-Appellant.

_______________________________________________

Submitted April 23, 2013 Decided

Before Judges Hayden and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 97-02-0278.

Joseph E. Krakora, Public Defender, attorney for appellant (Ernest Anemone, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Prosecutor of Hudson County, attorney for respondent (Stephanie Davis Elson, SpecialDeputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Daemian Garricks appeals from the December 6, 2010 Law Division order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

The record reveals that defendant is a Jamaican national who entered this country on a short-term visitor's visa in 1991 and did not depart. Following a plea hearing, defendant pled guilty to third-degree theft, N.J.S.A. 2C:20-3. The indictment was based on an incident where defendant tried to steal a car and was caught by the owner, an off-duty police officer. On the plea forms, in response to Question 17, "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your guilty plea?", defendant circled N/A, signifying that the question was not applicable. According to the presentence report, defendant reported that he was a United States citizen. On October 15, 1997, the judge sentenced defendant to four years probation conditioned on 364 days served in the county jail and, pursuant to the plea agreement, dismissed the pending burglary charge.

In January 2010, while defendant was incarcerated in Essex County Jail on charges of possession of marijuana with intent to distribute, the federal immigration authorities lodged a detainer against him after determining that he may be in the country illegally. On April 14, 2010, an immigration judge ordered defendant's removal to Jamaica because he was in the country illegally, and defendant has since been deported. Because defendant had a record of at least four convictions,

including the theft conviction at issue in this appeal, the judge found him ineligible for cancellation of removal pursuant to Section 240(c)(3) of the Immigration and Nationality Act, 8 U.S.C.A. 1101-1537. The judge denied defendant's request for a continuance to pursue any post-conviction relief, as it was "collateral to the issues of the case" and its success was speculative at best.

Defendant filed a PCR petition on May 4, 2010, arguing that his trial counsel was ineffective for failing to advise him of the deportation consequences of his plea. Defendant certified that he was never advised that a guilty plea would result in his deportation, that he did not receive any advice whatsoever from his attorney about immigration, and that he would not have pled guilty if he had known he could be deported.

Judge Joseph V. Isabella heard defendant's motion on November 1, 2010, and rendered a written opinion on December 6, 2010 denying relief. The judge first concluded that defendant's petition, filed approximately thirteen years after his plea, was time-barred under Rule 3:22-12(a), which provides a limitations period of five years. He noted that defendant did not make a claim of innocence and did not allege excusable neglect, which might allow the time limit to be waived to prevent an injustice.

Nonetheless, Judge Isabella addressed the merits of defendant's ineffective assistance of counsel claim. He found that defendant made only "vague, conclusory, and unsubstantiated assertions" that his counsel was ineffective in failing to adequately inform him of the immigration consequences of his plea. He further found that, given the overwhelming evidence against defendant, there was no evidence of a "reasonable probability" that defendant would have chosen not to plead guilty but for counsel's alleged errors. Additionally, the judge noted that defendant was deported because he was in this country illegally, not due to the theft conviction. Moreover, the judge pointed out that defendant had several indictable convictions, which were counted against him in the deportation proceeding to prevent a stay of the removal. As such, the judge determined that defendant could not establish that counsel's failure to discuss future possible immigration consequences in 1997 resulted in prejudice to defendant. This appeal followed.

On appeal, defendant raises the following contentions:

POINT I: THE PCR COURT ERRED IN FINDING THAT DEFENDANT'S PETITION WAS TIME BARRED BY RULE 3:22-12(a) (RAISED BELOW).

POINT II: NOTWITHSTANDING DEVELOPING CASE LAW, DEFENDANT'S PETITION SHOULD BE GRANTED BASED ON EXISTING CASE LAW; ALTERNATIVELY, DEFENDANT PRESENTS A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL AND SHOULD

BE GRANTED AN EVIDENTIARY HEARING (PARTIALLY RAISED BELOW).

The relevant legal principles governing our analysis are well-settled. Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A person making a prima facie showing of entitlement to such relief by demonstrating a reasonable likelihood that his or her claim will ultimately succeed on the merits is generally permitted an evidentiary hearing. Id. at 462-63. Without such a showing, no evidentiary hearing is required. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). In deciding if a defendant has established a prima facie claim, we must "view the facts in the light most favorable to a defendant." Ibid.

We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which were adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant must first show that his attorney's performance was deficient. Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The evaluation of the reasonableness of an attorney's

performance must be made in reference to the time of the attorney's conduct. State v. Gaitan, 209 N.J. 339, 350 (2012). Next, a defendant must show that his attorney's deficient performance prejudiced his defense. Fritz, supra, 105 N.J. at 52. Even if counsel was ineffective, under the second prong prejudice is not presumed and must be proven by the defendant. Ibid.

To justify withdrawing a guilty plea premised on ineffective assistance of counsel, a defendant must satisfy a modified Strickland standard:

When a guilty plea is part of the equation, . . . "a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; 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."

[State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)) (internal quotation marks omitted).]

Moreover, to obtain relief under the second prong "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, __, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).

In Padilla, the United States Supreme Court held that an attorney's failure to advise a non-citizen client of the immigration risks attendant on pleading guilty was ineffective assistance of counsel. Id. at __, 130 S. Ct. at 1486, 176 L. Ed. 2d at 299. In Gaitan, supra, 209 N.J. at 372, our Supreme Court held that Padilla was not entitled to retroactive application. Accord Chaidez v. United States, __ U.S. __, __, 133 S. Ct. 1103, 1113, 185 L. Ed. 2d 149, 162 (2013). Consequently, the holding in Padilla mandating affirmative advice by counsel on immigration consequences of a plea is not applicable to this case.

However, in Gaitan, supra, 209 N.J. at 373-74, the Court preserved a defendant's right to raise a claim that the attorney rendered affirmative incorrect advice:

That said, although Padilla will not apply retroactively, Nunez-Valdez still governs the standard of attorney performance in New Jersey in ineffective assistance of counsel claims on collateral review. Thus, if [a PCR applicant] presents a claim showing that he was provided with false and affirmatively misleading advice when entering his plea, then the standard of performance expected of counsel may have been breached.

In this case, defendant has not met the requirements for either the performance or prejudice part of the Strickland test. Defendant does not allege that his counsel gave him affirmatively inaccurate information but only that he did not

discuss immigration consequences at all. In Gaitan, the Court held that the information provided by Question 17, that a conviction may lead to deportation, was not "misadvice" and that counsel's failure to provide any advice on immigration consequences of the plea did not amount to the "affirmative misinformation and misleading advice" found deficient in Nunez-Valdez. Gaitan, supra, 209 N.J. at 375. We do not perceive counsel's failure to advise of the immigration consequences here, especially when defendant was reporting that he was a United States citizen, to be unreasonable or outside the norms of the legal profession. See State v. Brewster, 429 N.J. Super. 387, 396-97 (App. Div. 2013). Thus, defendant has failed to demonstrate the first part of the Strickland test.

Moreover, as Judge Isabella noted, in 1997 defendant was in the country illegally and already subject to deportation at any time. In light of that fact, as well as the overwhelming evidence against him and the beneficial terms of the plea, defendant has failed to establish that it would have been rational for him to reject the plea and proceed to trial. Hence, defendant has failed to demonstrate the second part of the Strickland test.

Affirmed.

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