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)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 11, 2019
• Docket: A-5244-17T4/A-0475-18T4
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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).

A-5244-17T4 2 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.

A-5244-17T4 3 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.

A-5244-17T4 4 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

A-5244-17T4 5 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

A-5244-17T4 6 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. A-5244-17T4 7 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.

A-5244-17T4 8 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).

A-5244-17T4 9 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?

A-5244-17T4 10 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?

JUDGE: Okay. So you understand generally what's going on here today?

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

A-5244-17T4 11 "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

A-5244-17T4 12 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. A-5244-17T4 13 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

A-5244-17T4 14 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.

A-5244-17T4 15