STATE OF NEW JERSEY VS. LESLIE JOSEPH (11-03-0155 AND 15-09-0513, SOMERSET COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 16, 2018
• Docket: A-3959-16T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 NO. A-3959-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LESLIE JOSEPH,

Defendant-Appellant. _____________________________

Submitted April 23, 2018 – Decided July 16, 2018

Before Judges Fasciale and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 11-03-0155, Accusation No. 15-09-0513.

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

Michael H. Robertson, Somerset County Prosecutor, attorney for respondent (Lauren Martinez, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Leslie Joseph appeals from an order denying his

petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant maintains that his trial counsel rendered

ineffective assistance when he pled to third-degree endangering

the welfare of a child. Judge Robert A. Ballard, Jr. entered the

order and issued a twenty-three page written statement of reasons.

We affirm.

In a single point, defendant argues:

POINT I

DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL FOR COUNSEL'S MISADVICE AS TO THE MATERIAL ELEMENT OF HIS PLEA THEREBY ENTITLING HIM TO AN EVIDENTIARY HEARING AND POST CONVICTION RELIEF.

After serving his sentence,1 defendant was released to the

United States Department of Homeland Security to be subjected to

deportation proceedings. He then filed a PCR petition alleging

counsel's ineffectiveness for not properly advising him about the

immigration consequences of his guilty plea.

To show ineffective assistance of counsel, defendant must

demonstrate two things. First, counsel's deficient performance

was so egregious that counsel was not functioning effectively as

guaranteed by the Sixth Amendment of the United States

Constitution. Strickland v. Washington, 466 U.S. 668, 687 (1984).

1 Due to a prior guilty plea to an accusation for third-degree perjury by making material false statements, and in accordance with his plea agreement for endangering, he was sentenced to an aggregate flat four-year time served sentence.

2 A-3959-16T4 Second, the performance deficiency prejudiced defendant's rights

to a fair trial such that there exists "a reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694; State v. Fritz,

105 N.J. 42, 52 (1987).

In the context of a guilty plea, the standard to establish

ineffective assistance of counsel is somewhat modified. "[A]

defendant can show ineffective assistance of counsel by proving

that his [or her] guilty plea resulted from 'inaccurate information

from counsel concerning the deportation consequences of his [or

her] plea.'" State v. Brewster, 429 N.J. Super. 387, 392 (App.

Div. 2013) (quoting State v. Nunez-Valdez, 200 N.J. 129, 143

(2009)).

Plea counsel's duty includes an affirmative responsibility

to inform a defendant entering a guilty plea of the relevant law

pertaining to mandatory deportation. Padilla v. Kentucky, 559

U.S. 356, 368-69 (2010). This court has made clear that 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, 330-31 (App. Div. 2012) (citing

Padilla, 559 U.S. at 369). The Padilla rule applies because

defendant pled guilty in September 2015.

3 A-3959-16T4 Defendant's contention that he was unaware of the immigration

consequences of his plea because counsel advised him that the plea

would "close the matter for good," is belied by the record, which

reflects that both counsel and the plea judge advised him he would

be deported. After declining the judge's invitation to seek advice

from an immigration attorney because he was a resident, not a

United States citizen, the judge told defendant that deportation

would "most likely" occur due to his guilty plea. Moreover,

defendant stated that he would be satisfied with that result. The

plea form, which defendant initialed, signed, and reviewed with

counsel, further demonstrates that he knew he would be deported

because of his guilty plea.

For these reasons and for those Judge Ballard expressed in

his written decision, we conclude that defendant failed to make a

prima facie case of ineffective assistance of plea counsel. We

conclude that defendant's arguments are unsupported and lack

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

Affirmed.

4 A-3959-16T4