NOT FOR PUBLICATION WITHOUT THE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-3479-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DWAYNE BECKFORD,
Defendant-Appellant.
__________________________________
Submitted May 31, 2017 – Decided July 27, 2017
Before Judges Leone and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 10-
01-0068.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Lucille
M. Rosano, Special Deputy Attorney General/
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Dwayne Beckford appeals from a December 4, 2015
order denying his petition for Post-Conviction Relief (PCR)
without an evidentiary hearing. Defendant claims his trial counsel
misinformed him of the immigration consequences of his plea. We
affirm.
I.
Defendant sold cocaine to an undercover officer. Defendant
was charged with third-degree distribution of cocaine, N.J.S.A.
2C:35-5 (Count One); third-degree distribution of cocaine within
1000 feet of school property, N.J.S.A. 2C:35-7 (Count Two); and
second-degree possession of cocaine with intent to distribute
within 500 feet of public housing, a public park, or a public
library, N.J.S.A. 2C:35-7.1 (Count Three).
On January 22, 2010, defendant pled guilty to Count Two
pursuant to a negotiated plea deal under which Count One and Count
Three would be dismissed, and the prosecutor would recommend four
years' probation conditioned on defendant serving 364 days in
county jail.
Defendant completed a written plea form and stated "yes" in
response to question number 17, which asked "Are you a citizen of
the United States?" Defendant stated that he had sufficient time
to review the plea form with his attorney before initialing and
signing it, that he understood it, that he had no questions
regarding it, and that all of his answers were true. However, his
presentence report subsequently revealed he was a Jamaican
2 A-3479-15T3
national and permanent United States resident. Sentencing was
adjourned to address this issue.
At defendant's April 19, 2010 sentencing, trial counsel
indicated she "addressed the issue of immigration" with defendant
and his family and informed them she did not specialize in
immigration law. She also stated: "I believe they've had time to
speak to an immigration attorney. It is Mr. Beckford's wish to
go forward with the sentencing today."
The trial court then questioned defendant. The court warned
"this could result . . . in your being removed because of this
plea." Defendant said he understood. The court asked if defendant
understood that trial counsel was not an immigration attorney, and
that trial counsel and the court were unable to give him any advice
concerning the immigration consequences of his plea. Defendant
said he understood. The court also observed that defendant had
"had the opportunity to talk to an immigration attorney." The
court asked defendant if he wished to proceed with sentencing that
day. Defendant repeatedly affirmed that he did. The court
proceeded to impose the negotiated sentence. Defendant did not
file a direct appeal.
On January 28, 2015, defendant filed his PCR petition claiming
ineffective assistance of counsel during his plea. After hearing
3 A-3479-15T3
argument, the PCR court denied defendant's petition on December
4, 2015. Defendant appeals, raising the following argument:
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST CONVICTION
RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY
HEARING TO FULLY ADDRESS HIS CONTENTION THAT
HE WAS ENTITLED TO WITHDRAW HIS GUILTY PLEA
ON THE BASIS HE HAD FAILED TO RECEIVE ADEQUATE
LEGAL REPRESENTATION FROM TRIAL COUNSEL
REGARDING THE DEPORTATION CONSEQUENCES
ARISING OUT OF HIS GUILTY PLEA, RESULTING IN
A GUILTY PLEA WHICH HAD NOT BEEN FREELY,
KNOWINGLY AND VOLUNTARILY ENTERED.
II.
Where the PCR court has not held an evidentiary hearing, we
"conduct a de novo review." State v. Harris, 181 N.J. 391, 420-
21, cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d
898 (2005). We must hew to our standard of review.
"A defendant shall be entitled to an evidentiary hearing only
upon the establishment of a prima facie case in support of post-
conviction relief." R. 3:22-10(b). "To establish a prima facie
case, defendant must demonstrate a reasonable likelihood that his
or her claim . . . will ultimately succeed on the merits." Ibid.
The court shall not grant an evidentiary hearing "if the
defendant's allegations are too vague, conclusory or speculative."
R. 3:22-10(e)(2).
To show ineffective assistance of counsel, a defendant must
satisfy the two-pronged test of Strickland v. Washington, 466 U.S.
4 A-3479-15T3
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), adopted in State
v. Fritz, 105 N.J. 42 (1987).
III.
In the context of a guilty plea, 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. DiFrisco, 137 N.J. 434, 457 (1994)
(citations omitted), cert. denied, 516 U.S. 1129, 116 S. Ct. 949,
133 L. Ed. 2d 873 (1996); see Hill v. Lockhart, 474 U.S. 52, 59,
106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). Defendant must
also show "a decision to reject the plea bargain would have been
rational under the circumstances." Padilla v. Kentucky, 559 U.S.
356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297; see State
v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011).
Defendant raises two related claims. First, he claims his
trial counsel provided misinformation about the immigration
consequences of his plea. "In State v. Nunez-Valdez, 200 N.J.
129, 143 (2009), our State Supreme Court held that a defendant can
show ineffective assistance of counsel by proving that his guilty
plea resulted from 'inaccurate information from counsel concerning
the deportation consequences of his plea.'" State v. Brewster,
5 A-3479-15T3
429 N.J. Super. 387, 392 (App. Div. 2013). "[I]n order to
establish a prima facie claim, a petitioner . . . . must allege
[specific] facts sufficient to demonstrate counsel's alleged
substandard performance." State v. Porter, 216 N.J. 343, 355
(2013) (quoting State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div.), certif. denied, 162 N.J. 199 (1999)). Here, "defendant's
allegations are too vague, conclusory, or speculative to warrant
an evidentiary hearing." State v. Marshall, 148 N.J. 89, 158,
cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88
(1997).
In his PCR petition, defendant alleged that prior to
sentencing the judge questioned his citizenship and "advised my
attorney to speak to [an] Immigration Lawyer before he sentenced
me," and that on the sentencing date "my attorney told me I will
be getting sentence[d] today and that my case will not be passed
onto Immigration because my charge is not deportable." In his
supplemental certification, defendant alleged trial counsel told
him prior to his plea that she did not practice in immigration law
and that she did not know how the guilty plea would affect his
immigration status, but that "later, she specifically told [him]
that my guilty plea was not the type that would result in
deportation" and that he "would be able to avoid being deported"
6 A-3479-15T3
because his guilty plea was to probation and a county jail
sentence, rather than a state prison sentence.
Defendant's claim of misinformation did not establish a prima
facie case under Nunez-Valdez because his allegations were flatly
contradicted by the trial record. Defendant's immigration status
was not an issue prior to his sentencing because when he entered
his plea, he misstated to his counsel and the court that he was
an American citizen. Further, when it was determined after his
plea that he was not a citizen, the record showed and defendant
acknowledged that it was defendant and his family who were to
speak with an immigration lawyer, that trial counsel could not and
did not give defendant advice on the immigration consequences of
his plea, that defendant was aware his guilty plea could result
in his deportation, and that he nonetheless chose to be sentenced
that day.
Courts must "evaluate the sufficiency of a belated claim of
misadvice [about deportation] before granting a hearing. In so
doing, the court should examine the transcripts of the plea
colloquy and sentencing hearing[.]" Gaitan, supra, 209 N.J. at
381. Here, "it does not appear to us that anything in the record
available would support [defendant's] version of events." State
v. Santos, 210 N.J. 129, 144 (2012) (reversing the grant of an
evidentiary hearing on a claim under Nunez-Valdez because the plea
7 A-3479-15T3
form advised the defendant he "may be deported"). "The subsequent
presentation of conclusory allegations unsupported by specifics
is subject to summary dismissal, as are contentions that in the
face of the record are wholly incredible." Blackledge v. Allison,
431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147
(1977); cf. State v. Jones, 219 N.J. 298, 315 (2014) (requiring a
hearing where "the record is entirely compatible with defendant's
claim").
Second, defendant claims his trial counsel failed to give him
correct immigration advice. After defendant's guilty plea but
before his sentencing, the Supreme Court held that to provide
effective assistance to a criminal defendant, "counsel must inform
her [noncitizen] client whether his plea carries a risk of
deportation." Padilla, supra, 559 U.S. at 374, 130 S. Ct. at
1486, 176 L. Ed. 2d at 299. Under Padilla, trial counsel normally
"need do no more than advise a noncitizen client that pending
criminal charges may carry a risk of adverse immigration
consequences." Id. at 369, 130 S. Ct. at 1484, 176 L. Ed. 2d at
296. "But when the deportation consequence is truly clear" because
"the terms of the relevant immigration statute are succinct, clear,
and explicit," such that the removal consequences of a plea can
"easily be determined from reading the removal statute," "the duty
to give correct advice is equally clear." Id. at 368-69, 130 S.
8 A-3479-15T3
Ct. at 1483, 176 L. Ed. 2d at 295-96. Here, the immigration
consequences were clear, as defendant's plea to a drug distribution
offense, an aggravated felony, "made him subject to automatic
deportation." Id. at 360 & n.1, 130 S. Ct. at 1478 & n.1, 176 L.
Ed. 2d at 290 & n.1; see State v. Gaitan, 209 N.J. 339, 347 (2012);
see also 8 U.S.C.A. § 1101(a)(43)(B), 1227(a)(B)(i).
Defendant's January 22, 2010 guilty plea took place before
Padilla was decided on March 31, 2010, so that counsel was unaware
of it at the time of the plea.1 Moreover, defendant's April 19,
2010 sentencing occurred less than three weeks after Padilla.
While the timing of defendant's plea and sentencing does not make
Padilla inapplicable, it does cast counsel's performance in a
different light.
Moreover, at the time of his plea, defendant represented to
trial counsel and the court that he was a United States citizen
by his answer on the plea form and by testifying he had answered
1
The "Court announced a new rule in Padilla" which applies to
defendants whose convictions became final after Padilla. Chaidez
v. United States, 568 U.S. 342, 358, 133 S. Ct. 1103, 1113, 185
L. Ed. 2d 149, 162 (2013); accord Gaitan, supra, 209 N.J. at 372-
73. Thus, Padilla applies to defendant's conviction because he
was sentenced after Padilla was decided. Nonetheless, "[i]t is
not insignificant to note that when [defendant] pleaded guilty on
[January 22, 2010], the failure of counsel to advise him of the
collateral consequences of deportation would not have caused her
assistance to be found ineffective." Nash v. United States, 153
F. Supp. 3d 584, 587 (E.D.N.Y. 2015).
9 A-3479-15T3
truthfully. As a result, counsel had no reason to advise defendant
of the immigration consequences the guilty plea would have if he
were a non-citizen. "The reasonableness of counsel's actions may
be determined or substantially influenced by the defendant's own
statements 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) (quoting Strickland, supra,
466 U.S. at 691, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). "Counsel
cannot be faulted for failing to expend time or resources analyzing
events about which they were never alerted." Ibid.
In any event, defendant cannot establish that he would not
have pled guilty had he been advised differently. In his
supplemental PCR certification, he alleged that if he had known
he was pleading guilty to an aggravated felony subject to automatic
deportation, he would have gone to trial rather than take the plea
bargain. However, "[c]ourts should not upset a plea solely because
of post hoc assertions from a defendant about how he would have
pleaded but for his attorney's deficiencies. Judges should instead
look to contemporaneous evidence to substantiate a defendant's
expressed preferences." Lee v. United States, 582 U.S. __, __,
__ S. Ct. __, __, 198 L. Ed. 2d 476, 487 (2017).
The contemporaneous evidence contradicts defendant's
allegation. After it was discovered that defendant was not an
10 A-3479-15T3
American citizen, he was given the opportunity to consult with an
immigration attorney, and was expressly advised by the trial court
that this guilty plea "could result . . . in [his] being removed."
Defendant said he understood. Nevertheless, he insisted upon
proceeding with being sentenced pursuant to his plea bargain.2
"Generally, representations made by a defendant . . .
concerning the voluntariness of the decision to plead, . . .
constitute a 'formidable barrier' which defendant must overcome."
State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge,
supra, 431 U.S. at 74, 97 S. Ct. at 1629, 52 L. Ed. 2d at 147
(1977)). "That is so because [defendant's] '[s]olemn declarations
in open court carry a strong presumption of verity.'" Ibid.
(quoting Blackledge, supra, 431 U.S. at 74, 97 S. Ct. at 1629, 52
L. Ed. 2d at 147). Again, "[t]he subsequent presentation of
conclusory allegations unsupported by specifics is subject to
summary dismissal, as are contentions that in the face of the
record are wholly incredible." Blackledge, supra, 431 U.S. at 74,
97 S. Ct. at 1629, 52 L. Ed. 2d at 147.
2
Interestingly, defendant subsequently contradicted his PCR claim
that he would not plead guilty to an aggravated felony. In 2013,
defendant pled guilty to robbery, N.J.S.A. 2C:15-1, and was
sentenced to state prison. That too was an aggravated felony,
both as a crime of violence and as a theft offense. 8 U.S.C.A. §
1101(a)(43)(F), (G); see 18 U.S.C.A. § 16; Thap v. Mukasey, 544
F.3d 674, 677 (6th Cir. 2008).
11 A-3479-15T3
Here, when the issue of deportation was raised, and defendant
was told he could be deported if he proceeded, he proceeded without
hesitation to seek sentencing under the highly-advantageous plea
offer. See Gaitan, supra, 209 N.J. at 378-79 (ruling that where
the defendant went ahead after the court advised the guilty plea
could result in his deportation, there was no evidence of
prejudice); cf. Lee, supra, 198 L. Ed. 2d at 487-88 (stressing
that "[w]hen the judge warned him that a conviction 'could result
in your being deported,' and asked '[d]oes that at all affect your
decision about whether you want to plead guilty or not,' Lee
answered 'Yes, Your Honor.'").
Additionally, under Padilla, "a petitioner must convince the
court that a decision to reject the plea bargain would have been
rational under the circumstances." 559 U.S. at 372, 130 S. Ct.
at 1485, 176 L. Ed. 2d at 297; see Maldon, supra, 422 N.J. Super.
at 486. Defendant sold cocaine to an undercover officer. Trial
counsel negotiated an exceedingly advantageous plea agreement for
defendant, and rejecting that deal would have exposed him to
conviction on all counts at trial and a much harsher prison
sentence, after which he would face an equal or greater risk of
deportation. Counts One and Two charged defendant with third-
degree distribution of a controlled dangerous substance offenses,
N.J.S.A. 2C:35-5 and N.J.S.A. 2C:35-7, each of which carried a
12 A-3479-15T3
potential sentence of three to five years imprisonment. Count
Three charged defendant with second-degree possession of CDS with
intent to distribute, N.J.S.A. 2C:35-7.1, which carried a sentence
of five to ten years imprisonment.
Instead of being sentenced to at least three years and up to
twenty years in state prison, defendant accepted a plea bargain
of guilty to one count and a sentence of probation conditioned on
service of a county jail sentence of less than one year. Defendant
did not make a prima facie case that rejecting the highly favorable
plea deal would have been rational under the circumstances. Thus,
defendant has failed to establish a prima facie case pursuant to
the Strickland/Fritz test. Accordingly, the PCR court properly
denied his petition without an evidentiary hearing.3
Affirmed.
3
Defendant has not renewed on appeal his claim in the PCR court
that he should have been allowed to withdraw his guilty plea under
State v. Slater, 198 N.J. 145, 157-58 (2009). Accordingly, we
need not address the denial of the Slater motion.
13 A-3479-15T3