STATE OF NEW JERSEY VS. LENFORD WRAY (05-04-0535 AND 07-01-0033, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0496-16T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LENFORD WRAY,

Defendant-Appellant.
_____________________________

Submitted October 23, 2018 – Decided December 13, 2018

Before Judges Yannotti and Rothstadt.

On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 05-04-0535
and Accusation No. 07-01-0033.

Joseph E. Krakora, Public Defender, attorney for
appellant (Damen J. Thiel, Designated Counsel, on the
brief).

Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Robert J. Wisse, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant appeals from a decision and order entered by the Law Division

on June 13, 2016, which denied his petition for post-conviction relief (PCR).

We affirm.

I.

In 2005, a Passaic County grand jury returned Indictment No. 05-04-0535,

charging defendant with fourth-degree possession of a controlled dangerous

substance (CDS), N.J.S.A. 2C:35-10(a)(3) (count one); third-degree possession

of a CDS with intent to distribute the same, N.J.S.A. 2C:35-5(a)(1) and (b)(11)

(count two); and third-degree possession of a CDS with intent to distribute the

same within 1000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-

5(a).

On September 28, 2006, defendant pled guilty to count three of the

indictment. Leonard C. Schiro was defendant's attorney of record, but attorney

Russell Bickert represented defendant at the plea hearing. At the plea hearing,

the judge asked defendant if he is a citizen of the United States. He replied,

"No." He informed the judge that Jamaica was his country of origin. The

following colloquy between the judge and defendant ensued.

Q. You understand that by pleading guilty, after you've
served your sentence, you may be deported back to
Jamaica?

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 A. Yes.

Q. Knowing that, do you still want to plead guilty?

A. Yes.

Defendant also signed the plea form. Question seventeen on the form

states, "Do you understand that if you are not a United States citizen or national,

you may be deported by virtue of your plea of guilty?" Defendant circled the

answer, "YES." The judge later sentenced defendant to a flat three-year term of

incarceration, dismissed the other charges, and entered a judgment of conviction

(JOC) dated December 14, 2006.

It appears that before he was sentenced, defendant was arrested for

committing another CDS offense. On February 8, 2007, defendant pled guilty

to fourth-degree possession of a CDS with intent to distribute the same, N.J.S.A.

2C:35-5(b)(12), as charged in Accusation No. 07-01-0033. Attorney Frank J.

Sciro, Jr. represented defendant with regard to this plea.

At the plea hearing, the judge asked defendant if he is a citizen of the

United States. He replied, "Yes." In responding to question seventeen on the

plea form, defendant circled "YES." It appears that defendant had circled

"N/A," but that response was crossed out. The judge later sentenced defendant

to eighteen months of incarceration, and ordered that the sentence be served

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concurrently with the sentence imposed on Indictment No. 05-04-0535. The

judge entered a JOC dated March 2, 2007.

Defendant did not appeal from the December 14, 2006 JOC or the March

2, 2007 JOC. However, on February 29, 2008, defendant filed a pro se PCR

petition. Defendant claimed his attorney had not provided him with proper

advice regarding the immigration consequences of his plea. He asserted he is a

citizen of Jamaica, and only had permanent-resident status in the United States.

He claimed that he would not have pled guilty if he knew of the consequences.

He stated that due to his guilty plea, he was subject to automatic deportation.

On August 14, 2008, the PCR court conducted a hearing on the petition,

and gave both parties the opportunity to call witnesses. Defendant's PCR

counsel informed the court he was only representing defendant with regard to

his effort to retract his plea to Accusation No. 07-01-0033.

The PCR court placed defendant under oath and cautioned him that if the

plea was withdrawn, he might face a more serious charge. Defendant told the

court he understood but wanted to proceed with his application to set aside the

conviction on the Accusation, based on his claim that he had not been advised

he was pleading guilty to an offense that would result in mandatory deportation.

PCR counsel and the assistant prosecutor did not question defendant.

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 The PCR court rendered an oral decision on defendant's petition. The

PCR court noted that defendant had candidly admitted that when he entered the

plea to the Accusation, he was aware he could be deported. Defendant claimed,

however, that he was not aware at that time he would be subject to mandatory

deportation. The court observed that when defendant entered the plea in

February 2007, he informed the plea judge he was a United States citizen;

however, in a letter sent to the plea judge about two months later, defendant

stated that he recalled being told when he entered his plea in September 2006,

that he could be deported.

The PCR court found that defendant had been properly advised as to the

possibility of deportation, and that defendant knew of the possibility of

deportation when he pled guilty in February 2007. The PCR court entered an

order dated September 22, 2008, denying PCR and defendant appealed. On

October 5, 2009, defendant was deported from the United States and returned to

Jamaica.

In March 2011, we reversed the order denying PCR and remanded the

matter to the PCR court to consider defendant's claim of ineffective assistance

of counsel in light of both the 2006 and 2007 plea hearings. State v. Wray, No.

A-3464-08 (App. Div. Mar. 24, 2011) (slip op. at 2, 11). In our opinion, we

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noted that when the PCR court ruled on defendant's petition, it did not have the

benefit of the decision of our Supreme Court in State v. Nuñez-Valdéz, 200 N.J.

129 (2009), and the decision of the United States Supreme Court in Padilla v.

Kentucky, 559 U.S. 356 (2010). Wray, slip op. at 7-9.

We stated that further proceedings also were required due to the particular

facts presented. Id. at 9. We pointed out that defendant may have made an

innocent mistake at the February 2007 plea hearing when he told the court he

was a United States citizen. Ibid. We observed that when defendant entered

both pleas, he had appeared before the same judge with the same attorney, and

in September 2006, defendant had indicated he was not a citizen. Id. at 10.

We noted that defendant's statement that he was not a United States citizen

"prompted the [plea] judge to discuss the 'possibility' of deportation based [on

the] guilty plea." Ibid. We determined that in light of the decisions in Nuñez-

Valdéz and Padilla, the PCR court must consider the "effect, if any," the

information the court conveyed to defendant in September 2006 may have on

the claim of ineffective assistance of counsel. Ibid. We expressed no view as

to the merits of defendant's PCR petition. Id. at 11.

After our decision, the PCR court listed the matter for proceedings in June

2011 and December 2011. The PCR court attempted to secure defendant's

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appearance but was apparently unable to do so. It seems that the court was

unaware defendant had already been deported. The court dismissed the petition

without prejudice. In September 2014, defendant filed another pro se PCR

petition.

The PCR court heard the matter on March 23, 2016. Defendant was

permitted to appear telephonically, and PCR counsel elected to rely upon

defendant's supplemental certification. In that certification, defendant stated

that his "attorney" provided him with misinformation and erroneous advice

about the immigration consequences of the plea. He stated that his "attorney"

was aware he was not a United States citizen, and that after speaking with

counsel about the charges, he believed he could avoid deportation.

The PCR court filed a written opinion dated May 27, 2016. The PCR court

noted that in the opinion on the earlier appeal, we had erroneously stated that

the same attorney had represented defendant when he entered his pleas in

September 2006 and February 2007. The PCR court found defendant was not

entitled to another evidentiary hearing. The PCR court stated that the earlier

PCR court had conducted an evidentiary hearing in August 2008, and neither

defendant nor the State elected to present any witnesses at that time. Moreover,

defendant's attorney and the assistant prosecutor chose not to question

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defendant. The court found that the existing record was sufficient to address

defendant's claims.

The PCR court further found that defendant had not presented a prima

facie case of ineffective assistance under the two-prong test established in

Strickland v. Washington, 466 U.S. 668, 687 (1984), which was later adopted

by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). The PCR court

determined that defendant had been informed of the possibility of deportation

when he entered his first plea, and defendant had not shown he was misadvised

or misinformed about the deportation consequences of the plea.

The PCR court also found that defendant's counsel was not required to

advise defendant about the prospect of deportation when defendant entered the

second plea because defendant misrepresented his citizenship status to the court.

The PCR court found that even if defendant's statement about his citizenship

was an innocent mistake, any advice regarding deportation "would have been a

repetition of the warnings previously administered."

In addition, the PCR court found that even if counsel erred in advising

defendant regarding the prospects for deportation, he was not entitled to relief

because he had not shown he was prejudiced by the error. The PCR court stated

that defendant had not shown that but for counsel's error, he would not have pled

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guilty and would have insisted upon going to trial. The PCR court therefore

determined that defendant was not entitled to relief and entered an order denying

the petition.

The PCR court later filed another written opinion dated June 13, 2016,

which addressed the question of whether defendant should be permitted to

withdraw his plea. The PCR court applied the factors enunciated in State v.

Slater, 198 N.J. 145, 157-58 (2009). The PCR court found that defendant had

entered his plea knowingly and voluntarily, with the advice of competent

counsel. The PCR court further found that defendant had not asserted a

colorable claim of innocence, and the State would be prejudiced if required to

prosecute the offenses committed about ten years earlier. This appeal followed.

On appeal, defendant argues:

POINT I
THE COURT ON REMAND ERRED IN DENYING
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF BECAUSE DEFENDANT
WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL DURING HIS PLEA HEARINGS AND
INITIAL PETITION.

A. Defense Counsel Rendered Ineffective Assistance
During Defendant's September 2006 Guilty Plea.

B. Defense Counsel Rendered Ineffective Assistance
During Defendant's February 2007 Guilty Plea.

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 C. Defense Counsel Rendered Ineffective Assistance
During Defendant's PCR Hearings in 2008 and 2011.

POINT II
THIS COURT SHOULD REVERSE THE DENIAL OF
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF BECAUSE THE PCR COURT
ERRED IN FINDING THAT DEFENDANT WAS
NOT DENIED EFFECTIVE ASSISTANCE OF
COUNSEL.

A. PCR Court's Decision.

B. The PCR Court's Refusal to Hold an Evidentiary
Hearing Denied Defendant Due Process and Deprived
the Court of an Accurate Factual Basis for its Decision.

C. The PCR Court's Failure to Hold an Evidentiary
Hearing Caused the Court to Misrepresent the Facts of
this Case.

D. The PCR Court Erred as a Matter of Law in Failing
to Find that Defense Counsel Was Ineffective.

II.

As noted, defendant argues he was denied effective assistance of counsel

when he entered in guilty pleas in September 2006 and February 2007.

To prevail on a claim of ineffective assistance, a defendant must satisfy

the two-part test established by Strickland, 466 U.S. at 687, and adopted by our

Supreme Court in Fritz, 105 N.J. at 58. First, the defendant must show that his

attorney's performance was deficient. Strickland, 466 U.S. at 687. This requires

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defendant to establish that his attorney "made errors so serious that counsel was

not functioning as the 'counsel' guaranteed [to] the defendant by the Sixth

Amendment." Ibid.

Second, the defendant must show that his attorney's "deficient

performance prejudiced the defense." Ibid. The defendant must establish "that

there is a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Id. at 694.

The Strickland standard applies to claims of ineffective assistance

associated with a guilty plea. Hill v. Lockhart, 474 U.S. 52, 57 (1985). To show

prejudice, the defendant must establish "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)

(alteration in original) (quoting Hill, 474 U.S. at 59).

In Padilla, the Court determined that advice regarding deportation arising

from a guilty plea is within the ambit of the Sixth Amendment's right to counsel.

559 U.S. at 374. The Court held that when the immigration consequences of a

plea are not clear, "a criminal defense attorney need do no more than advise a

noncitizen client that pending criminal charges may carry a risk of adverse

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immigration consequences. But when the deportation consequence is truly clear,

. . . the duty to give correct advise is equally clear." Id. at 369 (footnote omitted).

In Nuñez-Valdéz, our Supreme Court held that a defendant may establish

a claim of ineffective assistance of counsel under the New Jersey Constitution

when the defendant shows his attorney provided false or affirmatively

misleading advice about the deportation consequences of a guilty plea. See 200

N.J. at 131. Padilla imposes an additional, affirmative obligation to provide

advice concerning the immigration consequences of a plea, when deportation

under federal law is clear and certain. State v. Gaitan, 209 N.J. 339, 373 (2012).

Padilla does not, however, apply retroactively on collateral review. Id. at 372-

73.

Therefore, because defendant's pleas occurred before Padilla, his PCR

claims are governed by Nuñez-Valdéz. Here, the PCR court correctly found that

defendant failed to establish a prima facie case of ineffective assistance of

counsel under Nuñez-Valdéz. Defendant failed to show that his attorneys

provided him with false and misleading information about the deportation

consequences of his pleas.

As stated previously, when defendant pled guilty in September 2006, he

stated under oath that he had reviewed the plea with his attorney and the answers

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on the plea form were true and accurate. Defendant informed the plea judge he

was not a citizen of the United States. The plea form indicated that defendant

understood that as a result of the plea, he could be subject to deportation. The

plea judge also advised defendant that deportation was possible. Defendant

failed to show that his plea counsel provided him with any false or misleading

information concerning the plea.

Furthermore, when defendant pled guilty in February 2007, he

erroneously informed the plea judge that he was a citizen of the United States.

On appeal, defendant contends that his attorney should have known that his

statement was incorrect. He asserts his counsel should have reviewed the record

from the September 2006 proceeding. He also asserts his immigration status

was reflected in the court's records.

However, as the PCR court noted in its decision, defendant had been

informed of the possibility of deportation in September 2006, and the judge

would have issued similar warnings in February 2007 if defendant stated he was

not a United States citizen. Moreover, in September 2006 and February 2007,

defendant responded to question seventeen on the plea forms by indicating that

he understood that if he is not a United States citizen, he could be deported as a

result of his pleas. In addition, there is no evidence that defendant's plea

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attorneys provided him with any false or misleading information concerning the

pleas.

We therefore conclude the record supports the PCR court's determination

that defendant was not denied effective assistance of counsel regarding the 2006

and 2007 pleas.

III.

Defendant also argues that he was denied the effective assistance of PCR

counsel in the proceedings in 2008 and 2011. He contends that in 2008, PCR

counsel erred by limiting his representation to seeking withdrawal of the 2007

plea. He also argues PCR counsel erred by failing to call him or his plea

attorneys as witnesses in the 2008 proceeding.

Defendant further argues that after this court remanded the matter for

further proceedings, the PCR court dismissed the petition without prejudice,

allegedly because counsel and the court failed to attempt to notify him of the

proceedings. He contends the petition languished in dismissal without prejudice

until he filed another petition.

We are convinced, however, that even if defendant's criticism of PCR

counsel's performance were correct, he has failed to show he was prejudiced by

the manner in which PCR counsel handled the proceedings. Defendant has not

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shown that the matter would have been decided differently if PCR counsel called

him and his plea attorneys as witnesses. Defendant's position was set forth in

his supplemental certification, which PCR counsel submitted to the court in

March 2016, and there is nothing in the record indicating that testimony by

defendant and his plea attorneys would have led to a different result.

As we have determined, defendant failed to establish a claim of ineffective

assistance under Nuñez-Valdéz with regard to the 2006 plea or the 2007 plea.

Defendant failed to assert facts showing his plea attorneys provided him with

false or misleading advice concerning the 2006 or 2007 pleas. We therefore

reject defendant's contention that he was denied the effective assistance of PCR

counsel.

IV.

Defendant also argues the PCR court erred by failing to conduct an

evidentiary hearing on remand. Defendant contends if the court had held an

evidentiary hearing, the court "may have learned that [he] had come to believe

he was effectively a [United States] citizen" because he had permanent resident

status and his father was already a United States citizen.

Defendant argues he should have been given the opportunity to ask his

plea counsel whether he understood his immigration status when he provided

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him with legal advice. He contends he could have provided the court with more

information than the information he set forth in his supplemental certification.

A defendant is entitled to an evidentiary hearing on a PCR petition when

he or she establishes a prima facie case for PCR, there are material issues in

dispute that cannot be resolved based on the existing record, and the court

determines that a hearing is necessary to resolve the claims presented. State v.

Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)).

Here, the PCR court found that an evidentiary hearing was not required

because on August 14, 2008, the earlier PCR court had afforded defendant the

opportunity for an evidentiary hearing. Defendant had testified at that

proceeding, and the attorneys for the parties did not question defendant or call

other witnesses.

Furthermore, the record as amplified in the remand proceedings with

defendant's supplemental certification failed to establish that defendant's plea

attorneys provided him with erroneous advice or misinformation concerning the

pleas. As the PCR court found, defendant's position had been "well articulated"

and an evidentiary hearing was not required to resolve defendant's claims. The

record supports that determination.

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 We have considered defendant's other contentions, and conclude they lack

sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed.

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