NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4613-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAHMAI S. JAMES, a/k/a JAHMAI SUDANI JAMES, and JAHMAI JAMES,
Defendant-Appellant. ____________________________
Submitted October 14, 2020 – Decided November 25, 2020
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Accusation No. 15-06- 0195.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert K. Uyehara, Jr., Designated Counsel on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Catlin A. Davis, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Jahmai S. James appeals from the denial of his post-
conviction relief (PCR) petition, arguing:
POINT I
THE PCR COURT ERRED IN DENYING DEFENDANT'S PCR CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
A. THE TRIAL COURT ERRED IN FAILING TO FIND THAT DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE PLEA AND SENTENCING REGARDING HIS IMMIGRATION CONSEQUENCES.
B. THE TRIAL COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING.
Reviewing the factual inferences drawn by the trial court and its legal
conclusions de novo because the trial court did not conduct an evidentiary
hearing, State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016), we are
compelled to reverse and remand this matter for an evidentiary hearing. Not
only did the trial court mistakenly analyze the PCR petition under the test for
A-4613-18T4 2 plea withdrawal instead of the Strickland-Fritz standard, 1 the record reveals
defendant established a prima facie case of ineffective assistance of counsel so
as to warrant an evidentiary hearing.
Defendant supported his PCR petition with a certification averring his
plea counsel knew he was born in Jamaica; counsel never discussed "that there
were immigration consequences to the plea and that [defendant] would surely
be deported" after he pleaded guilty on June 5, 2015 to two counts in
Accusation 15-06-195: second-degree unlawful possession of a weapon
1 To establish a PCR claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), first by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," then by proving he suffered prejudice due to counsel's deficient performance, Strickland, 466 U.S. at 687; see also Fritz, 105 N.J. at 52. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome of the proceeding. Fritz, 105 N.J. at 58. A defendant's motion to withdraw a guilty plea is analyzed under the four-factor test announced in State v. Slater, 198 N.J. 145, 157-58 (2009): "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal [will] result in unfair prejudice to the State or unfair advantage to the accused." Not only are the tests different, so is our standard of review. We review a trial court's decision in a plea-withdrawal appeal for abuse of discretion because that court makes "qualitative assessments about the nature of a defendant's reasons for moving to withdraw his plea and the strength of his case and because the court is sometimes making credibility determinations about witness testimony." State v. Tate, 220 N.J. 393, 404 (2015). A-4613-18T4 3 (handgun), N.J.S.A. 2C:39-5(b) (count seven), and fourth-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(4) (count eight) 2 ; defendant was not given the
opportunity to obtain advice from an immigration attorney; and if he knew he
could be deported, he would not have pleaded guilty and proceeded to trial. 3
Although bare assertions are "insufficient to support a [prima facie] case
of ineffectiveness," State v. Cummings, 321 N.J. Super. 154, 171 (App. Div.
1999), the record presents sufficient facts, viewed in the light most favorable
to defendant, to establish such a case, see State v. Preciose, 129 N.J. 451, 462-
63 (1992); see also R. 3:22-10(b).
Defendant's Jamaican citizenship was evident throughout proceedings
before the trial court. It was a factor in setting defendant's bail and was noted
on the presentence report.
Defendant answered question seventeen of the plea form, stating: he was
not a United States citizen; understood he had the right to seek legal advice
about a guilty plea's impact on his immigration status; and had discussed
2 The judgment of conviction erroneously lists the charge and statute for count eight as "UNLAW PURPOSE – FIREARMS" and "2C:39-4[a]" in both the original and final charges. We direct the trial court, on remand, to enter a corrected judgment. 3 Defendant also claimed his plea counsel did not review discovery with him. That argument was not briefed on appeal. We consider it abandoned. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011). A-4613-18T4 4 potential immigration consequences with counsel. But he did not answer
questions asking if he would like an opportunity to discuss the consequences
with counsel and, importantly, "[h]aving been advised of the possible
immigration consequences and of [his] right to seek individualized legal
advice on [his] immigration consequences," if he still wanted to plead guilty.
The trial court did not explore the reason why these questions were not
answered. Moreover, the trial court did not make any inquiry of defendant
about immigration issues during the plea colloquy.
These lacunas compel a remand to the trial court for an evidentiary
hearing to determine if defendant's allegations are true, and if he established
the ineffective assistance of his trial counsel—under both prongs of the
Strickland-Fritz standard—recognizing, "[t]he weight of prevailing
professional norms supports the view that counsel must advise [a] client
regarding the risk of deportation." Padilla v. Kentucky, 559 U.S. 356, 367
(2010). "To provide effective assistance of counsel, post-Padilla, a defense
attorney is required to address, in some manner, the risk of immigration
consequences of a noncitizen defendant's guilty plea." Blake, 444 N.J. Super.
at 295. A noncitizen defendant considering whether to plead guilty to an
offense must "receive[] correct information concerning all of the relevant
A-4613-18T4 5 material consequences that flow from such a plea." State v. Agathis, 424 N.J.
Super. 16, 22 (App. Div. 2012). The failure to so advise renders counsel's
performance deficient. State v. Gaitan, 209 N.J. 339, 380 (2012); see also
Blake, 444 N.J. Super. at 296.
We discern no link, however, between plea counsel's suspension from
the practice of law, In re Roberts, 231 N.J.
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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-4613-18T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAHMAI S. JAMES, a/k/a JAHMAI SUDANI JAMES, and JAHMAI JAMES,
Defendant-Appellant. ____________________________
Submitted October 14, 2020 – Decided November 25, 2020
Before Judges Fisher and Moynihan.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Accusation No. 15-06- 0195.
Joseph E. Krakora, Public Defender, attorney for appellant (Robert K. Uyehara, Jr., Designated Counsel on the brief).
Gurbir S. Grewal, Attorney General, attorney for respondent (Catlin A. Davis, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Jahmai S. James appeals from the denial of his post-
conviction relief (PCR) petition, arguing:
POINT I
THE PCR COURT ERRED IN DENYING DEFENDANT'S PCR CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
A. THE TRIAL COURT ERRED IN FAILING TO FIND THAT DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE PLEA AND SENTENCING REGARDING HIS IMMIGRATION CONSEQUENCES.
B. THE TRIAL COURT ERRED IN DENYING DEFENDANT AN EVIDENTIARY HEARING.
Reviewing the factual inferences drawn by the trial court and its legal
conclusions de novo because the trial court did not conduct an evidentiary
hearing, State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016), we are
compelled to reverse and remand this matter for an evidentiary hearing. Not
only did the trial court mistakenly analyze the PCR petition under the test for
A-4613-18T4 2 plea withdrawal instead of the Strickland-Fritz standard, 1 the record reveals
defendant established a prima facie case of ineffective assistance of counsel so
as to warrant an evidentiary hearing.
Defendant supported his PCR petition with a certification averring his
plea counsel knew he was born in Jamaica; counsel never discussed "that there
were immigration consequences to the plea and that [defendant] would surely
be deported" after he pleaded guilty on June 5, 2015 to two counts in
Accusation 15-06-195: second-degree unlawful possession of a weapon
1 To establish a PCR claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test formulated in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), first by "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment," then by proving he suffered prejudice due to counsel's deficient performance, Strickland, 466 U.S. at 687; see also Fritz, 105 N.J. at 52. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome of the proceeding. Fritz, 105 N.J. at 58. A defendant's motion to withdraw a guilty plea is analyzed under the four-factor test announced in State v. Slater, 198 N.J. 145, 157-58 (2009): "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal [will] result in unfair prejudice to the State or unfair advantage to the accused." Not only are the tests different, so is our standard of review. We review a trial court's decision in a plea-withdrawal appeal for abuse of discretion because that court makes "qualitative assessments about the nature of a defendant's reasons for moving to withdraw his plea and the strength of his case and because the court is sometimes making credibility determinations about witness testimony." State v. Tate, 220 N.J. 393, 404 (2015). A-4613-18T4 3 (handgun), N.J.S.A. 2C:39-5(b) (count seven), and fourth-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(4) (count eight) 2 ; defendant was not given the
opportunity to obtain advice from an immigration attorney; and if he knew he
could be deported, he would not have pleaded guilty and proceeded to trial. 3
Although bare assertions are "insufficient to support a [prima facie] case
of ineffectiveness," State v. Cummings, 321 N.J. Super. 154, 171 (App. Div.
1999), the record presents sufficient facts, viewed in the light most favorable
to defendant, to establish such a case, see State v. Preciose, 129 N.J. 451, 462-
63 (1992); see also R. 3:22-10(b).
Defendant's Jamaican citizenship was evident throughout proceedings
before the trial court. It was a factor in setting defendant's bail and was noted
on the presentence report.
Defendant answered question seventeen of the plea form, stating: he was
not a United States citizen; understood he had the right to seek legal advice
about a guilty plea's impact on his immigration status; and had discussed
2 The judgment of conviction erroneously lists the charge and statute for count eight as "UNLAW PURPOSE – FIREARMS" and "2C:39-4[a]" in both the original and final charges. We direct the trial court, on remand, to enter a corrected judgment. 3 Defendant also claimed his plea counsel did not review discovery with him. That argument was not briefed on appeal. We consider it abandoned. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011). A-4613-18T4 4 potential immigration consequences with counsel. But he did not answer
questions asking if he would like an opportunity to discuss the consequences
with counsel and, importantly, "[h]aving been advised of the possible
immigration consequences and of [his] right to seek individualized legal
advice on [his] immigration consequences," if he still wanted to plead guilty.
The trial court did not explore the reason why these questions were not
answered. Moreover, the trial court did not make any inquiry of defendant
about immigration issues during the plea colloquy.
These lacunas compel a remand to the trial court for an evidentiary
hearing to determine if defendant's allegations are true, and if he established
the ineffective assistance of his trial counsel—under both prongs of the
Strickland-Fritz standard—recognizing, "[t]he weight of prevailing
professional norms supports the view that counsel must advise [a] client
regarding the risk of deportation." Padilla v. Kentucky, 559 U.S. 356, 367
(2010). "To provide effective assistance of counsel, post-Padilla, a defense
attorney is required to address, in some manner, the risk of immigration
consequences of a noncitizen defendant's guilty plea." Blake, 444 N.J. Super.
at 295. A noncitizen defendant considering whether to plead guilty to an
offense must "receive[] correct information concerning all of the relevant
A-4613-18T4 5 material consequences that flow from such a plea." State v. Agathis, 424 N.J.
Super. 16, 22 (App. Div. 2012). The failure to so advise renders counsel's
performance deficient. State v. Gaitan, 209 N.J. 339, 380 (2012); see also
Blake, 444 N.J. Super. at 296.
We discern no link, however, between plea counsel's suspension from
the practice of law, In re Roberts, 231 N.J. 187 (2017), and defendant's
allegations. The suspension came some four months after defendant pleaded
guilty and was based on grounds unrelated to those advanced by defendant's
PCR petition.
The trial court, without an evidentiary hearing, made credibility findings
in analyzing the Slater factors: "[T]he [c]ourt does not credit [defendant's]
current claim that he was not . . . advised of the immigration consequences of
his guilty plea." Findings on disputed issues should generally be made after a
court hears testimony, not on certifications. See Preciose, 129 N.J. at 462-63;
State v. Gaitan, 419 N.J. Super. 365, 370 n.3 (App. Div. 2011), rev'd on other
grounds, 209 N.J. 339 (2012); State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div.
1998). "Assessment of credibility is the kind of determination 'best made
through an evidentiary proceeding with all its explorative benefits, including
A-4613-18T4 6 the truth-revealing power which the opportunity to cross-examine bestows.'"
State v. Porter, 216 N.J. 343, 347 (2013) (quoting Pyatt, 316 N.J. Super. at 51).
Defendant's assertion was not belied by his prior record testimony; the
trial court did not elicit any such testimony at the plea hearing. We, therefore,
direct this matter be heard on remand before a different judge. See R.L. v.
Voytac, 199 N.J. 285, 306 (2009) ("Because the trial court previously made
credibility findings, we deem it appropriate that the matter be assigned to a
different trial court."); see also R. 1:12-1(d).
Despite the trial court's plea-retraction analysis, defendant did not seek
to withdraw his plea and did not endeavor to establish or critically explore the
Slater factors. We decline to consider the undeveloped issue. See State v.
Robinson, 200 N.J. 1, 19-20 (2008).
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
A-4613-18T4 7