STATE OF NEW JERSEY VS. DESIRE LUSAMBA (12-12-1296 AND 12-12-1297, 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NOT FOR PUBLICATION WITHOUT THE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-4168-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DESIRE LUSAMBA,

Defendant-Appellant.
________________________

Submitted January 5, 2021 – Decided January 20, 2021

Before Judges Fisher and Gilson.

On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Accusation Nos. 12-12-1296
and 12-12-1297.

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

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

Appellant filed a pro se supplemental brief.
PER CURIAM

In this appeal, we review an order that denied both defendant's post-

conviction relief (PCR) petition and his motion for leave to withdraw his guilty

pleas – applications that were filed five years and seven months after entry of

the February 22, 2013 judgments of conviction – based on a claim that he was

misadvised about the deportation consequences of his guilty pleas. We remand

for an evidentiary hearing.

Defendant was charged in separate indictments in 2012 of having

committed controlled dangerous substance (CDS) offenses. By way of a

negotiated plea agreement, defendant pleaded guilty in January 2013 to third-

degree CDS possession, N.J.S.A. 2C:35-10(a)(1), under one indictment, and

third-degree CDS distribution, N.J.S.A. 2C:35-5(b)(3), under the other. During

the plea hearing, defendant asserted he was a United States citizen.

At the sentencing hearing a month later, the judge asked defendant where

he was born, and defendant responded "Paterson," which prompted the judge to

ask him if there was "[a]ny reason" why the person preparing the presentence

report "thought you were born . . . somewhere in Africa." Defendant responded

that he was "born in Africa, but I'm a citizen." The judge pursued the matter

further:

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THE COURT: Where in Africa?

THE DEFENDANT: Zaire.

THE COURT: And you became a citizen when?

THE DEFENDANT: 2010.

THE COURT: You have a U.S. passport?

THE DEFENDANT: Yes.

THE COURT: I see you also have a naturalization
certificate, right?

THE DEFENDANT: Yes.

THE COURT: Now, you told the PSI interviewer you
became a U.S. citizen in 2012.

THE DEFENDANT: I'm not pretty sure – like, it was
– it was – it was done through my mother, so I'm not
really sure exactly what year it was done.

THE COURT: Well, 2012 is last year.

THE DEFENDANT: So (indiscernible) –

THE COURT: You appeared to reach back into the
recesses of your memory.

THE DEFENDANT: That's when I knew about it.

....

THE COURT: . . . One doesn't confuse a few months
ago with a few years ago. It makes me doubt your

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 citizenship. And I'm not concerned, personally, with
whether you're a citizen or not, but you may have lied
to your lawyer and the [c]ourt when you entered your
guilty plea in terms of the potential impact of this
conviction on your ability to remain in the United
States. I am going to require that you bring this
naturalization certificate and passport to probation. If
you're lying about your citizenship, the only one that's
going to get hurt by that is you.

THE DEFENDANT: Yes.

THE COURT: Are you a U.S. citizen?

THE DEFENDANT: Yes.

The judge then sentenced defendant to concurrent probationary terms.

Not long after, on being arrested for marijuana possession with the intent

to distribute and other related offenses, defendant was charged with a violation

of the terms of his probation (VOP). The marijuana charges were downgraded

to the municipal court and dismissed.

At an initial court appearance on the VOP in October 2013, defendant was

given time to consult an immigration attorney and to consider whether he had

an interest in moving to retract his January 2013 guilty pleas. A month later, at

a second appearance on the VOP charge, with there being an ICE detainer on

defendant, the judge asked defense counsel if it was his "wish to file a motion

to retract . . . or are you approaching this in some other fashion?" Defendant's

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attorney advised the court that defendant had consulted with an immigration

attorney; he also represented that defendant had discussed with counsel the

uncertain political situation in defendant's home country, the Democratic

Republic of Congo. The judge questioned defendant, who confirmed he had

misrepresented his status as a United States citizen in the plea form executed in

January 2013; the judge also engaged in the following colloquy with defendant:

Q. You do understand that this conviction and any
previous ones you may have subject you to deportation
from the United States?

A. Yes.

Q. And you are aware, there is already a detainer on
you from ICE, the immigration service. Is that right?

A. Yes.

Q. You have consulted with an attorney . . . with regard
to your immigration – the possible immigration
consequences?

A. Yes.

Q. And are you satisfied that he's answered all of your
questions with regard to your immigration situation?

A. Yes.

....

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Q. [D]o you have any desire to meet with another
immigration attorney or [the same immigration
attorney] again?

A. No.

Q. You understand that your lawyer could file a motion
to retract your guilty plea, which the [c]ourt might
grant. It might not but it might grant [such a motion]
and you would, of course, go back to the drawing board
with exposure to a more severe sentence and prison
term, et cetera, rather than the probationary agreement
that you worked out. But you could possibly retract
your pleas and decide to go to trial in the hope of being
acquitted all together, et cetera. Are you aware of that?

A. Yes.

Q. . . . But it is not your wish to file a motion to retract
your guilty plea on these matters . . . . Is that right?

A. Yes.

Q. And you do not want to discuss – consult with an
immigration attorney further. You are satisfied to stick
with the plea agreement you reached, knowing that
there is an ICE detainer and that you face deportation
consequences. Is that right?

A. Yes.

Q. All right. You've made that decision freely and
voluntarily?

A. Yes.

Q. No one has threatened you or coerced you to take
that position?

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 A. No.

Q. Anyone promise you anything for taking that
position?

A. No.

The judge had defendant initial a revised page of the plea agreement form to

clarify defendant's position that he was not a United States citizen . The matter

was concluded with the judge continuing the original probationary terms.

Defendant took no other action until he filed a PCR petition and a motion

to be permitted to retract his guilty pleas in October 2018, more than five years

after entry of the judgments of conviction. Although the judge held that the PCR

petition was untimely and that defendant failed to demonstrate excusable

neglect, see R. 3:22-12, he proceeded to consider the merits of defendant's

arguments and concluded that the PCR petition and the motion to retract the

guilty pleas were without merit. The judge's rationale for denying defendants'

applications was expressed in a written opinion, and a memorializing order was

entered on May 20, 2019.

Defendant appeals the May 20, 2019 order, arguing through counsel that

(1) he is entitled to an evidentiary hearing on his claim that trial counsel rendered

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ineffective assistance of counsel by failing to inform him adequately of the

deportation consequences of his plea, and (2) his "guilty plea must be set aside." 1

As to the first point, the judge concluded that the claim of ineffectiveness

had no merit because defendant had not established the first Strickland/Fritz2

prong; he did not reach the second prong. We agree with that part of the judge's

ruling when he rejected the argument that counsel was ineffective during the

period of time defendant asserted he was a United States citizen; according to

the judge – and we agree – such an argument, if sustained, would impose on

defense counsel an unreasonable "sixth sense" by holding him to a standard of

being able to "sniff out" that defendant had not been honest about his claim to

citizenship when originally entering his guilty pleas.

But there is another aspect of defendant's argument that warrants further

factual development. Defendant argues that his attorney failed to properly

advise him about immigration consequences once it was revealed he was not a

1
Defendant filed a pro se supplemental brief that presents an argument similar
to the first point.
2
Strickland v. Washington, 466 U.S. 668, 694 (1984) (defining federal
constitutional claims of ineffectiveness as requiring proof that counsel's
performance fell below an objective standard of reasonableness, and, but for that
breach, there was a reasonable probability that the result of the proceeding
would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the
Strickland test for state constitutional claims of ineffectiveness).
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United States citizen. In that regard, defendant claims his attorney told him that,

while he would have to "face" ICE about his situation, there was a potential for

his remaining in this country because of unrest in his home country. Defendant

argues that this was "misadvice" and sufficiently supports his ineffectiveness

claim. "Misadvice" about a defendant's immigration status upon entry of a

guilty plea supports an ineffectiveness claim even under legal principles

preceding the Supreme Court's landmark Padilla decision.3 See State v. Nuñez-

Valdѐz, 200 N.J. 129, 131 (2009).

But defendant's statements in support of his PCR petition disavowed what

he said, under oath, when responding to the judge's questions about deportation

on the earlier occasions. During the VOP proceeding, the judge asked defendant

whether he had met with an immigration attorney, and defendant said he had;

the attorney was, in fact, mentioned by name. In seeking relief on his PCR

petition, defendant asserted he never met that attorney. And there are numerous

other inconsistencies between defendant's factual claims at the PCR stage and

the statements he made during the plea hearing and at the VOP hearing. Those

inconsistencies, however, do not permit the rejection of one factual version and

3
Padilla v. Kentucky, 559 U.S. 356 (2010).
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the adoption of another without further exploration at an evidentiary hearing.

We, thus, remand for such a hearing.

The judge also denied defendant's motion to retract his guilty pleas,

finding none of the Slater4 factors supported relief. The judge held:

As to the first factor, the existence of a "colorable claim
of innocence[,]" the [d]efendant's brief states tersely
that "[t]he [d]efendant cannot claim innocence." . . .
The second factor, the nature and strength of
[d]efendant's reason for withdrawing his . . . guilty
pleas that is, his own misrepresentations as to his
citizenship status solely because his attorney did not
figure out then that he was lying about it, is a very weak
argument at best. Should the [d]efendant's own
untruths now serve to benefit him? The [c]ourt does
not think so.

The third factor, the existence of a plea agreement,
certainly favors the State. As to factor four, it is almost
inherently a prejudice to the State and it would be a
potentially unfair advantage to the [d]efendant to allow
the retraction of his guilty pleas more than six years
later in terms of the potential impact on the ability of
the State's witnesses to identify the [d]efendant and to
recall facts.

[Footnote and citations omitted.]

We find insufficient merit in defendant's arguments about his Slater

application to warrant further discussion in a written opinion, R. 2:11-3(e)(2),

4
State v. Slater, 198 N.J. 145 (2009).
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and affirm substantially for the reasons set forth by the judge in his written

opinion.

Affirmed in part; vacated in part; and remanded for an evidentiary hearing

on defendant's PCR petition. We do not retain jurisdiction.

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