STATE OF NEW JERSEY VS. CLIVE A. ROSE (13-06-0765, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-4442-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLIVE A. ROSE,

Defendant-Appellant.
__________________________

Submitted October 15, 2019 – Decided December 16, 2019

Before Judges Moynihan and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 13-06-
0765.

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

Christopher L.C. Kuberiet, Acting Middlesex County
Prosecutor, attorney for respondent (David M. Liston,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Defendant Clive A. Rose appeals from an April 30, 2018 order denying

his petition for post-conviction relief (PCR) without an evidentiary hearing. We

affirm.

We glean the following facts from the record. On March 22, 2013,

defendant was arrested by police for possession of cocaine with intent to

distribute in a quantity of less than one-half ounce. On June 4, 2013, a

Middlesex County grand jury indicted defendant for third-degree possession of

a dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (count one); third-degree

distribution of a CDS, N.J.S.A. 2C:35-5a(1) and 2C:35-5b(3) (count two); third-

degree possession with intent to distribute a CDS, N.J.S.A. 2C:35-5a(1) and

2C:35-5b(3) (count three); and possession of paraphernalia with intent to

distribute, N.J.S.A. 2C:36-3 (count four).

On December 9, 2013, defendant executed a written plea agreement in

which he agreed to plead guilty to count two of the indictment, third-degree

distribution. In exchange, the State agreed to recommend that defendant be

sentenced to a four-year term of imprisonment with a two-year period of parole

ineligibility, and that all remaining counts of the indictment be dismissed. That

same day, defendant pled guilty. Consistent with the terms of the plea

agreement, the court sentenced defendant to a four-year term of imprisonment

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with a two-year period of parole ineligibility. By order dated February 10, 2015,

we affirmed defendant's sentence.

On October 31, 2017, defendant filed a petition for PCR based on

ineffective assistance of counsel. 1 Defendant alleged that there was an

inadequate factual basis for the plea adduced at the hearing; and that trial

counsel failed to conduct an adequate investigation, failed to argue certain

mitigating factors, and never advised him that he was pleading guilty to an

offense that would require his mandatory deportation. In connection with his

claim that he was not advised of the immigration consequences of his plea,

defendant certified that he communicated to his defense attorney that he "was

not a United States citizen, [and] that [he] was a permanent resident and citizen

of England." Defendant certified that he was provided no notice of the collateral

consequence of his plea until he was already sentenced and incarcerated, and

that had he known of the immigration consequences of his plea he would not

have pled guilty.

On April 30, 2018, after hearing arguments, Judge Alberto Rivas found

defendant failed to make a prima facie case of ineffective assistance of counsel ,

1
This PCR application was a resubmission of a prior petition filed in March
2015 that defendant voluntarily withdrew.

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and entered an order denying his petition without an evidentiary hearing. In so

ruling, pertinent to the sole issue on this appeal, Judge Rivas found that

defendant had stated "on multiple times in different settings," including at the

time of his arrest, in his presentence report, and under oath at the time of his

plea, that he was a United States citizen. The judge noted that under the

circumstances, defendant's bald assertions that he told his attorney that he was

not a citizen and that he had been confused didn't "seem logical, reasonable, or

truthful." Judge Rivas further found that even assuming defendant was not

aware that he faced mandatory deportation as a result of his plea, it was unlikely

defendant would have turned down the favorable offer of four years with a two-

year period of parole ineligibility given that he was exposed to a ten-year term

with five years of parole ineligibility on a mandatory extended term, which the

State agreed to waive as part of the plea deal.

This appeal followed. On appeal, defendant presents the following

argument for our review:

POINT I

THE LOWER COURT ERRED IN FINDING THAT
THE PETITIONER HAD EFFECTIVE
REPRESENTATION OF COUNSEL CONCERNING
THE IMMIGRATION CONSEQUENCES OF HIS
PLEA AND ERRED BY DENYING AN
EVIDENTIARY HEARING.

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 We review the PCR court's legal conclusions or interpretations de novo.

State v. Nash, 212 N.J. 518, 540-41 (2013). Since the PCR court did not hold

an evidentiary hearing, this court also reviews de novo the PCR court's factual

findings. State v. Harris, 181 N.J. 391, 421 (2004) (citation omitted). We

review a PCR court's determination to proceed without an evidentiary hearing

for an abuse of discretion. State v. Brewster, 429 N.J. Super. 387, 401 (App.

Div. 2013) (citation omitted).

A PCR petitioner faces the burden of establishing the grounds for relief

by a preponderance of the credible evidence. State v. Goodwin, 173 N.J. 583,

593 (2002). "Any factual assertion that provides the predicate for a claim of

relief must be made by an affidavit or certification pursuant to Rule 1:4-4 and

based upon personal knowledge of the declarant before the court may grant an

evidentiary hearing." R. 3:22-10(c).

A defendant shall be entitled to an evidentiary hearing
only upon the establishment of a prima facie case in
support of post-conviction relief, a determination by the
court that there are material issues of disputed fact that
cannot be resolved by reference to the existing record,
and a determination that an evidentiary hearing is
necessary to resolve the claims for relief. To establish
a prima facie case, defendant must demonstrate a
reasonable likelihood that his or her claim, viewing the
facts alleged in the light most favorable to the
defendant, will ultimately succeed on the merits.

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 [R. 3:22-10(b).]

"[I]n order to establish a prima facie claim, a petitioner must do more than

make bald assertions that he was denied the effective assistance of counsel. He

must allege facts sufficient to demonstrate counsel's alleged substandard

performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999),

162 N.J. 199 (1999). "[A] defendant is not entitled to an evidentiary hearing if

the 'allegations are too vague, conclusory, or speculative to warrant an

evidentiary hearing[.]' Rather, defendant must allege specific facts and evidence

supporting his allegations." State v. Porter, 216 N.J. 343, 355 (2013) (alterations

in original) (quoting State v. Marshall, 148 N.J. 89, 158 (1997)).

Ordinarily, to establish an ineffective-assistance-of-counsel claim, a

convicted defendant must demonstrate: (1) counsel's performance was deficient,

and (2) the deficient performance actually prejudiced the accused's defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see State v. Fritz, 105 N.J.

42, 58 (1987) (adopting two-part Strickland test in New Jersey). To satisfy the

first prong of the Strickland test, a defendant must show "that counsel made

errors so serious that counsel was not functioning as the 'counsel' guaranteed

. . . by the Sixth Amendment." Fritz, 105 N.J. at 52 (quoting Strickland, 466

U.S. at 687). To satisfy the second prong, a defendant must show by a

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"reasonable probability" that the deficient performance affected the outcome of

trial. Id. at 60-61 (quoting Strickland, 466 U.S. at 694).

In connection with a PCR application alleging ineffective assistance of

counsel, non-citizen defendants may be relieved of their burden to satisfy the

Strickland test if trial counsel failed to advise a client of the immigration

consequences of pleading guilty to an offense. Our Supreme Court, adopting

the standard established by the United States Supreme Court in Padilla v.

Kentucky, 559 U.S. 356 (2010), held that

counsel's failure to point out to a noncitizen client that
he or she is pleading to a mandatorily removable
offense will be viewed as deficient performance of
counsel; affirmative advice must be conveyed as part of
the counseling provided when a client enters a guilty
plea to a state offense that equates to an aggravated
felony, triggering eligibility for mandated removal.

[State v. Gaitan, 209 N.J. 339, 380 (2012).]

Gaitan's presumption of deficient representation, however, is simply not

triggered where, as here, the defendant affirmatively misrepresents his

immigration status. In that regard, our de novo review of the record reveals that

at the plea hearing,2 defendant's attorney asked him, "Are you a citizen of the

2
PCR Judge Rivas also conducted defendant's December 9, 2013 plea hearing
and his February 20, 2014 sentencing hearing.

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United States?" Defendant answered, under oath, "Yes." Before accepting

defendant's plea, Judge Rivas once again asked defendant to confirm that he was

a United States citizen. Again defendant responded, under oath, "Yes." The

plea forms signed by defendant and referenced at the plea hearing also asked

defendant, "Are you a citizen of the United States?" The answer "Yes" was

circled next to that question, and the page on which the question appeared was

initialed by defendant. Defendant denied having "any difficulty writing, reading

or . . . understanding the English language;" denied having "ever been diagnosed

as having any mental disease or disability;" and denied being "under the

influence of any medication that affects [his] ability to understand what" was

happening at the plea hearing.

At the sentencing hearing, defendant's counsel stated on the record that he

had an opportunity to review defendant's presentence report with defendant, and

that neither he nor defendant had any objection to it. The report listed

defendant's place of birth as "Alabama."

Thus, the record amply supports the judge's finding that defendant's bald

assertions that he told his trial counsel he was not a citizen, and that he was

confused by the foregoing questioning, were contradicted by defendant's own

statements and were otherwise not "logical, reasonable or truthful." We agree

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and conclude that Judge Rivas did not abuse his discretion in denying defendant

an evidentiary hearing as defendant failed to establish that his attorney's

performance was deficient. 3

To the extent that we have not specifically addressed any other issues

raised by defendant, we find they lack sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

3
We also agree with Judge Rivas's conclusion that, even assuming defendant
could establish a prima facie case, he failed to show "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. Nuñez-Valdéz, 200
N.J. 129, 139 (2009) (alteration in original) (quoting State v. DiFrisco, 137 N.J.
434, 457 (1994)). See State v. O'Donnell, 435 N.J. Super. 351 (App. Div. 2014)
(holding a defendant "must convince the court that a decision to reject the plea
bargain would have been rational under the circumstances.") (quoting Padilla v.
Kentucky, 559 U.S. at 372). Given the lengthy mandatory extended-term
sentence that defendant would have been exposed to if convicted at trial, it is
highly unlikely he would have taken that risk given the very favorable plea deal.

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