Opinion
DOCKET NO. A-1009-14T3
05-31-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SAURABH KOTHARI, Defendant-Appellant.
Zucker Steinberg & Wixted, attorneys for appellant (Jeffrey C. Zucker, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Accusation No. 11-04-01065. Zucker Steinberg & Wixted, attorneys for appellant (Jeffrey C. Zucker, on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Saurabh Kothari appeals from a September 12, 2014 order denying his petition for post-conviction relief (PCR) after an evidentiary hearing. We affirm.
I.
We discern the salient facts and procedural history from the record. Defendant was born in India, was admitted to the United States in 1998, and is not a citizen of the United States. On October 26, 2010, defendant was charged in various summonses and a warrant with possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); manufacturing, distribution and/or dispensing heroin/cocaine less than one-half ounce, N.J.S.A. 2C:35-5(b)(3); distributing, dispensing, or possessing with intent to distribute a controlled dangerous substance within 1000 feet of a school zone, N.J.S.A. 2C:35-7; use or possession with intent to use drug paraphernalia, N.J.S.A. 2C:36-2; and possession of a weapon while committing a controlled dangerous substance crime, N.J.S.A. 2C:39-4.1(a).
On April 27, 2011, defendant waived his right to a grand jury, agreed to proceed by way of an accusation, and pled guilty to third-degree possession with intent to distribute an imitation controlled dangerous substance, N.J.S.A. 2C:35-11(a), pursuant to a negotiated plea agreement. The State agreed to recommend that defendant be sentenced to a three-year probationary term conditioned on defendant serving a 270-day custodial term, which the State agreed could be served under house arrest. Under the plea agreement, the October 26, 2010 summonses and warrant were to be dismissed at defendant's sentencing.
During the plea proceeding, defendant testified that he reviewed the discovery materials the State provided. He stated that he reviewed the plea form with his counsel, understood all of the questions on the form, answered all of the questions truthfully, and signed or initialed each page of the form. Defendant testified that he was satisfied with his attorney's services.
Defendant provided a factual basis for his guilty plea, testifying that on October 26, 2010, law enforcement officers entered his home with a search warrant and found a substance which they believed to be cocaine, but which was later determined to be imitation CDS. Defendant testified he possessed the imitation CDS knowing that it was illegal to do so, and that he intended to give it to a friend. The court found there was an adequate factual basis for defendant's plea and that he entered it knowingly and voluntarily.
On July 11, 2011, defendant was sentenced to a three-year probationary term, conditioned upon 270 days of home confinement, and payment of fines and penalties. Defendant was ordered to forfeit property which had been seized by law enforcement during the execution of the search warrant. Defendant did not file a direct appeal.
In October 2011, the United States Department of Homeland Security commenced proceedings against defendant, charging that he was subject to removal from the United States under 8 U.S.C.A. § 1227(a)(2)(A)(ii) because he had been "convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct." Defendant was convicted of simple assault in Pennsylvania in 2005. The second conviction cited as a basis for defendant's removal was his 2011 Camden County conviction for possession with intent to distribute imitation CDS.
"Removal" is the current statutory term for what was previously referred to as "deportation." State v. Gaitan, 209 N.J. 339, 345 n.1 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013)
On April 3, 2013, defendant filed a PCR petition claiming his plea counsel was ineffective and alleging the factual basis for his plea did not establish the elements of the crime. He asserted that his plea counsel failed to advise him of the immigration consequences of his plea. In a July 1, 2014 order, the court granted an evidentiary hearing limited to defendant's claim that counsel was ineffective by failing to advise him of the possibility of deportation as a result of his guilty plea.
Steven Barsamian, an attorney who practices immigration law and represents defendant in the removal proceedings, was defendant's first witness at the hearing. Barsamian explained that the removal charges against defendant are based on his two convictions for crimes of moral turpitude and that a crime of moral turpitude "is one that in and of itself is morally wrong."
Prior to his representation of defendant, Barsamian had never represented anyone charged in a removal proceeding with an imitation substance offense and was required to perform research to determine if the offense constituted a crime of moral turpitude under 8 U.S.C.A. § 1227(a)(2)(A)(ii). He opined that the offense was a crime of moral turpitude because of what he considered to be "the evil intent . . . on distributing what [defendant] thought may have been a drug." Barsamian testified, however, that there is no list of enumerated offenses that delineate crimes of moral turpitude under 8 U.S.C.A. § 1227(a)(2)(A)(ii) and that it is "a broad umbrella."
Defendant also testified at the hearing. He retained plea counsel after his arrest on October 26, 2011, and met with plea counsel a few times in the county jail and one time at counsel's office prior to entering into the plea agreement. His mother was present at the meeting at plea counsel's office.
Defendant told plea counsel that he was from India, was a "green card holder," and had a prior conviction for simple assault in Pennsylvania. Defendant said that plea counsel never discussed with him the potential immigration consequences of his plea and did not inform him that his convictions for simple assault and possession of imitation CDS with intent to distribute would result in deportation proceedings. Defendant said that if he had been aware of the immigration consequences, he would not have accepted the plea arrangement. Defendant testified that counsel told him that he did not have to worry about being deported.
Defendant also testified that prior to his plea proceeding he never spoke to an immigration attorney about the immigration consequences of his plea agreement. On cross-examination he acknowledged that he knew Sujeet Mohanty, an immigration attorney and a friend of his mother, but denied speaking to Mohanty about the immigration consequences of his plea prior to the plea proceeding. Defendant also stated that he did not review discovery with plea counsel and did not know that the substance the police seized from his house was not cocaine until after he was sentenced.
According to defendant, he reviewed the plea form with his counsel for only two minutes prior to the plea proceeding. Defendant testified, however, that the answers on the plea form accurately reflected his responses, including the answers to question 17, which reflected that defendant was not a United States citizen, and that he understood that he may be deported by virtue of his plea of guilty, he would be subject to deportation/removal if his plea of guilty was to a crime considered an "aggravated felony" under federal law, and he had the right to seek legal advice on his immigration status prior to entering a plea of guilty. Defendant stated he did "not really" understand the questions he answered relating to immigration, and he trusted his lawyer.
Defendant's plea counsel was called as a witness by the State and testified he met with defendant and his mother on more than one occasion in his office and that defendant advised him that he had a prior conviction in Pennsylvania. Plea counsel recalled that defendant and his mother expressed concern over the possibility of deportation and defendant's mother stated that defendant's green card had expired.
Plea counsel acknowledged that he knew "virtually nothing" about immigration law, did not know if possession with intent to distribute imitation CDS was a crime of moral turpitude, and did not know that, because of defendant's guilty plea, defendant might be deemed to have two convictions for crimes of moral turpitude that could result in his removal.
Plea counsel had been provided with Mohanty's business card and understood Mohanty was defendant's attorney and was simultaneously representing him. Plea counsel spoke with Mohanty multiple times about defendant's charges and the effect they might have on his immigration status. He could not remember if he spoke to Mohanty about defendant pleading guilty to possession with intent to distribute imitation CDS, and never spoke to Mohanty about defendant's final plea agreement or inquired about the immigration consequences of the agreement.
Plea counsel did not know if defendant spoke to Mohanty prior to entering the guilty plea. Plea counsel testified he never told defendant that he did not have to worry about being deported. Plea counsel met with defendant prior to the plea proceeding, reviewed each question on the plea form with defendant, and recorded the answers provided by defendant on the form.
Mohanty testified that he is an immigration attorney and is good friends with defendant's parents. Mohanty was approached by defendant and his parents after defendant's arrest, but did not provide advice directly to defendant regarding the criminal charges because Mohanty learned that defendant was already represented by plea counsel. Mohanty represented defendant's parents in their attempt to obtain the return of property that was seized by the police during the search of their home that resulted in defendant's charges.
Mohanty never spoke directly to defendant about the criminal charges or plea agreement. He was, however, contacted by plea counsel and spoke with plea counsel two or three times about defendant's immigration issues, including once during a meeting at the Camden County Courthouse. Mohanty told plea counsel that if defendant was convicted of the original charges against him, he would be deported from the country. He also advised plea counsel that defendant's "new" charge constituted a crime of moral turpitude but did not identify the "new" charge or the manner in which he reached the conclusion.
On September 8, 2014, the court rendered an oral decision and entered an order denying defendant's PCR petition. The court found that defendant was not a credible witness because portions of his testimony and statements in his affidavit were contradicted by his testimony during the plea proceeding. The court found that the testimony of plea counsel, Barsamian, and Mohanty was credible.
The court found that defendant and his mother met with plea counsel on at least one occasion in counsel's office, discussed defendant's immigration status, and defendant was aware there were immigration consequences from his plea. The court also found that either defendant or his mother provided Mohanty's contact information to plea counsel because defendant's mother had retained Mohanty, an immigration attorney, to address the forfeiture issues. The court further found that defendant had access to Mohanty and could have spoken to him regarding immigration issues at any time.
The court found no credible evidence that plea counsel provided incorrect advice to defendant regarding the immigration consequences of his plea. The court also found that defendant had access to an immigration attorney, Mohanty, and was aware there were potential immigration consequences from his plea, but found it incredible that defendant would not have spoken to Mohanty or have his mother speak to Mohanty about the consequences.
The court noted that plea counsel did not have immigration expertise and concluded that plea counsel would have so advised defendant. The court found that defendant's responses to question 17 on the plea form confirmed that he had been advised by plea counsel he may be deported by virtue of his plea and understood he had a right to confer with immigration counsel.
Based upon its findings of fact, the court concluded that plea counsel did not misadvise defendant regarding the immigration consequences of his plea and fulfilled his constitutional obligation to provide effective assistance of counsel by informing defendant that he may be deported as a result of his plea and of his right to confer with immigration counsel. The court also rejected defendant's contention that there was an inadequate factual basis for his guilty plea. This appeal followed.
Defendant does not challenge on appeal the PCR court's rejection of his contention that there was an inadequate factual basis for his plea of guilty to possession with intent to distribute imitation CDS, N.J.S.A. 2C:35-11(a). We therefore do not consider the issue.
On appeal, defendant argues:
POINT I:
[The court] erred in not finding ineffective assistance because [plea counsel] neither identified deportation consequences for his client nor referred him to an immigration attorney in compliance with State v. Gaitan.
POINT II:
[The court] erred in [not] finding ineffective assistance under Padilla v. Kentucky because [plea counsel] failed to thoroughly investigate Mr. Kothari's immigration status.
II.
We review the legal conclusions of a PCR court and mixed questions of fact and law under the de novo standard of review. State Harris, 181 N.J. 391, 420 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where an evidentiary hearing has been held, we accord deference "[i]n reviewing a PCR court's factual findings based on live testimony" and should not disturb "the PCR court's findings that are supported by sufficient credible evidence in the record." State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v. Nash, 212 N.J. 518, 540 (2013)).
The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that a defendant in a criminal proceeding has the right to the assistance of counsel in his defense. The right to counsel includes "the right to the effective assistance of counsel." Nash, supra, 212 N.J. at 541 (quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984)).
In Strickland, the Court established a two-part test, later adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), to determine whether a defendant has been deprived of the effective assistance of counsel. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the first prong of the Strickland standard, a petitioner must show that counsel's performance was deficient. It must be demonstrated that counsel's handling of the matter "fell below an objective standard of reasonableness" and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Ibid.
Under the second prong of the Strickland standard, a defendant "must show that the deficient performance prejudiced the defense." Ibid. There must be a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. In the context of a PCR petition challenging a guilty plea based on the ineffective assistance of counsel, the second prong is established when the defendant demonstrates 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. Nuñez-Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).
A petitioner must establish both prongs of the Strickland standard in order to obtain a reversal of the challenged conviction. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52; Nash, supra, 212 N.J. at 542. "With respect to both prongs of the Strickland test, a defendant asserting ineffective assistance of counsel on PCR bears the burden of proving his or her right to relief by a preponderance of the evidence." Gaitan, supra, 209 N.J. at 350 (2012) (citing State v. Echols, 199 N.J. 344, 357 (2009); State v. Goodwin, 173 N.J. 583, 593 (2002)). A failure to satisfy either prong of the Strickland standard requires the denial of a petition for PCR. Strickland, supra, 466 U.S. at 700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702.
In the context of plea agreements of non-citizen defendants, the performance of plea counsel is deficient under the first prong of the Strickland standard where counsel "provides false or misleading information concerning the deportation consequences of a plea of guilt." Nuñez-Valdéz, supra, 200 N.J. at 138. In addition, in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), the United States Supreme Court held that plea counsel "is required to address, in some manner, the risk of immigration consequences of a non-citizen defendant's guilty plea." State v. Blake, 444 N.J. Super. 285, 295 (App. Div. 2016) (citing Padilla, supra, 559 U.S. at 367, 130 S. Ct. at 1482, 176 L. Ed. 2d at 294). The Padilla Court created a "two-tiered analytical structure for assessing the duty of effective assistance," which "depend[s] on the certainty of immigration consequences flowing from the plea." Gaitan, supra, 209 N.J. at 356, 380.
The holding in Padilla applied prospectively, and is applicable to defendant's plea here. Gaitan, supra, 209 N.J. at 380.
"[I]mmigration law is often complex, and the consequences of a conviction are often far from clear." Blake, supra, 444 N.J. Super. at 295 (citing Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295-96). In circumstances where "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequence[s]," then an attorney is obliged to be "equally clear." Padilla, supra, 559 U.S. at 368-69, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295-96. Counsel's failure "to point out to a noncitizen client that he or she is pleading to a mandatorily removable offense," constitutes "deficient performance of counsel." Blake, supra, 444 N.J. Super. 285 at 296 (quoting Gaitan, supra, 209 N.J. at 380).
Where "the deportation consequences of a particular plea are unclear or uncertain . . . a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296. Where "removal is not 'mandated' in the sense that a state offense is not identified on published lists of offenses equating to aggravated felonies or like mandatorily removable offenses, counsel must highlight for noncitizen clients that entering a guilty plea will place them at risk of removal" and advise clients to seek immigration advice. Gaitan, supra, 209 N.J. at 381; see also Blake, supra, 444 N.J. Super. at 301 ("[W]here the law is 'highly complex and not capable of being reduced to any clear, succinct, or certain answer,' an attorney may fulfill his duty by conveying to his client that the immigration consequences of his plea are uncertain." (quoting State v. Telford, 420 N.J. Super. 465, 469 (App. Div. 2011), certif. denied, 209 N.J. 595 (2012))).
We are convinced that defendant failed to sustain his burden of proving by a preponderance of the evidence that his plea counsel's performance was deficient under the first prong of the Strickland standard. The credible evidence in the record supports the court's finding that plea counsel did not provide misleading advice to defendant regarding the immigration consequences of his plea. Nuñez-Valdéz, supra, 200 N.J. at 139-40.
PCR counsel denied advising defendant that he would not be deported. Although defendant testified to the contrary, we defer to the PCR court's determination that PCR counsel's testimony was credible and defendant's testimony was not. See State v. L.A., 433 N.J. Super. 1, 17 (App. Div. 2013) ("When reviewing a PCR court's determination, we generally defer to the court's factual findings, including credibility determinations, if they are supported by 'adequate, substantial and credible evidence.'" (quoting Harris, supra, 181 N.J. at 415)).
Moreover, the credible evidence supports the court's conclusion that PCR counsel provided constitutionally effective assistance by advising defendant that he may be deported and that he had the opportunity to confer with immigration counsel. Defendant testified that he conferred with PCR counsel prior to the entry of his plea and provided affirmative responses to the questions on the plea form confirming that he had been advised that he may be deported and had the opportunity to confer with immigration counsel.
Defendant's deportation proceedings are based on the charge that he was "convicted of two or more crimes involving moral turpitude." 8 U.S.C.A. § 1227(a)(2)(A)(ii). The crime of possession with intent to distribute imitation CDS, N.J.S.A. 2C:35-11(a), is not identified in the statute as a "crime of moral turpitude" and is not on any published list defining it as a crime of moral turpitude under 8 U.S.C.A. § 1227(a)(2)(A)(ii). Indeed, defendant's immigration counsel Barsamian testified that he has practiced immigration law since 1976, but was required to perform research to determine if an offense under N.J.S.A. 2C:35-11(a) might properly be deemed a crime of moral turpitude.
Mohanty testified that in his view, defendant's "new" charge constituted a crime of moral turpitude, but did not identify the charge, explain the basis for his opinion, or identify any clear or explicit statutory authority for his opinion. --------
In Telford, supra, 420 N.J. Super. at 467, a noncitizen defendant pled guilty to third-degree endangering the welfare of a child and faced deportation. We affirmed the denial of the defendant's ineffective assistance of counsel claim alleging that his attorney was ineffective for "only advis[ing] that he 'might' rather than 'would' be deported" as a result of his guilty plea. Ibid. We were satisfied that the deportation consequences for the crime to which the defendant pled guilty were "too complex to require more specific advice," and that the defendant's counsel "was not ineffective in allowing him to plead guilty without a more definitive statement about the deportation consequences of his plea." Id. at 467, 479.
Here, defendant did not plead guilty to a crime where deportation was mandated. He pled guilty to an offense that was "not identified on published lists of offenses equating to aggravated felonies or like mandatorily removable offenses," Gaitan, supra, 209 N.J. at 381, and the deportation consequences were not "truly clear." Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296. As a result, we are satisfied the PCR court correctly concluded that PCR counsel's duty to defendant was "limited" and counsel satisfied that duty by advising defendant "that pending criminal charges may carry a risk of adverse immigration consequences." Gaitan, supra, 209 N.J. at 380 (quoting Padilla, supra, 599 U.S. at 357, 130 S. Ct. at 1477, 176 L. Ed. 2d at 289); cf. Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296 (finding that the immigration statute was "succinct, clear, and explicit in defining the removal consequences" of the defendant's conviction for a controlled dangerous substance offense because 8 U.S.C.A. § 1227(a)(2)(B)(i) expressly "commands removal for all controlled substances convictions except for the most trivial of marijuana possession offenses"). Defendant therefore did not prove by a preponderance of the evidence that plea counsel's performance was deficient under the first prong of the Strickland standard.
We are also satisfied that defendant did not sustain his burden of establishing the second prong of the Strickland standard because he failed to present "sufficient evidence to show 'a reasonable probability that, but for counsel's errors, [he or she] would not have pleaded guilty and would have insisted on going to trial.'" State v. O'Donnell, 435 N.J. Super. 351, 376 (App. Div. 2014) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)). Defendant was required to demonstrate that "had he been properly advised, it would have been rational for him to decline the plea offer and insist on going to trial and, in fact, that he probably would have done so." State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (citing Padilla, supra, 559 U.S. at 372, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297).
Defendant did not offer any evidence beyond his bare conclusory assertion that he would not have pled guilty had he known of the immigration consequences. Standing alone, this does not demonstrate a reasonable probability that but for counsel's alleged deficiency defendant would not have accepted the plea bargain. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (holding "a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel"), certif. denied, 162 N.J. 199 (1999).
Defendant's failure to prove both prongs of the Strickland standard by a preponderance of the evidence required the denial of his PCR petition. Nash, supra, 212 N.J. at 542.
Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION