STATE OF NEW JERSEY VS. GLENNIS HARVE (14-09-1674, MONMOUTH COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3191-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GLENNIS HARVE,
Defendant-Appellant.
_______________________
Submitted December 7, 2020 – Decided January 05, 2021
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 14-09-
1674.
Joseph E. Krakora, Public Defender, attorney for
appellant (Monique Moyse, Designated Counsel, on the
brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and on the
brief; Katrina Koerner, Legal Assistant, on the brief).
PER CURIAM
Defendant Glennis Harve appeals from the January 4, 2019 denial of his
petition for post-conviction relief (PCR) without an evidentiary hearing. For the
reasons that follow, we affirm.
Defendant pled guilty to one count of third-degree distribution of
marijuana, N.J.S.A. 2C:35-5(b)(11). In accordance with his plea agreement, the
sentencing court imposed a one-year period of non-custodial probation on
January 22, 2015. Defendant did not file a direct appeal from his conviction or
sentence.
Defendant filed a PCR petition on December 7, 2017, in which he argued
that he received the ineffective assistance of counsel (IAC) when his attorney ,
who he met for the first time when he pled guilty, advised him to accept the plea
offer without ever discussing his "immigration status or any immigration
consequences of" pleading guilty. According to defendant, if he had known that
there were such consequences, he would not have accepted the plea offer.
In August 2018, PCR counsel filed an amended petition, a supporting
brief, and certifications from defendant and his immigration attorney. In his
certification, defendant stated that he felt rushed by his plea counsel into
accepting the plea, he did not understand the charges against him, and his
attorney never explained the State's case against him.
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Also, defendant admitted that during the plea hearing, he advised counsel
and the court that he was a United States citizen, when in fact he was a
permanent resident, having been born in Antigua, and not, as his plea form
stated, a citizen born in "Neptune, N.J." He also confirmed that after he pled
guilty, he informed probation too that he was a citizen and when asked by a
probation officer where he was born, he also identified Neptune. According to
defendant, he was confused by questions asking him about his citizenship, which
he understood related to where he lived at the time, and if he had been asked
where he was born, he would have responded that he did not know. Defendant
reiterated that had he known of the immigration consequence to his plea, he
"would not have entered into any plea that would have resulted in problems with
immigration."
Defendant also acknowledged that at the time, he stated that he was
satisfied with his plea counsel's services. However, he did so because he "was
not aware of what better counsel could do for" him. Similarly, although he
advised the plea court that he read and understood his plea form, he had not, as
it was "basically filled out" by his attorney and he "just signed where [he] was
told to." According to defendant he was emotional and confused throughout the
process.
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Defendant also stated that counsel did not discuss the case against him,
and counsel's only advice was "that the plea was the best outcome" without ever
discussing "any other possible outcome for" him. Defendant confirmed that he
avoided jail time by accepting the plea.
According to defendant's immigration attorney, defendant's plea exposed
him to immigration issues about which defendant stated he was not aware.
Evidently, because the charge to which he pled guilty was considered by the
immigration authorities to be an aggravated felony, defendant had been ordered
to be deported.
In the brief filed on his behalf, defendant took a slightly different position.
There, he argued that he accepted the plea without his plea counsel discussing
the State's case against him or having "any meaningful discussion with [counsel]
about the likelihood of success if he chose to go to trial." Also, defendant
confirmed that he was not contending that his plea counsel "provided or even
casually hinted at any immigration consequences of the plea he was to enter, nor
did she provide any misinformation about the immigration effects of the plea."
The PCR court considered the parties' oral arguments on January 4, 2019
and then denied defendant's petition, placing its reasons on the record that day.
In its decision, the court reviewed in detail defendant's responses to the
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questions on the plea form, and to the plea court's questions when he pled guilty.
The court observed that in addition to advising the plea court he was a citizen ;
defendant indicated the same on his plea form too. Moreover, defendant, who
was twenty-three years old, a high school graduate who had almost completed
his studies at a community college, confirmed he understood English, and could
read and write English.
After reviewing the applicable law, the PCR court concluded that
defendant failed to establish that plea counsel's "performance was deficient."
The court found that defendant was "cloaking an immigration misadvise
claim . . . as an [IAC] claim[,]" and that "[h]ad defendant told counsel his actual
immigration status, a different plea may have been reached that would not have
triggered defendant's deportation or the proceedings may have taken a different
turn."
In addition, the PCR court observed that the plea court specifically asked
defendant if he wanted more time to confer with counsel before pleading guilty
and told him he was "free to do so." Based upon the totality of the
circumstances, the PCR court rejected defendant's contention that he "believed
citizenship meant where he lived," noting that the plea form not only ask ed if
"defendant is a United States citizen," but that the question was followed by
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additional "questions [that] discuss options in the event defendant is not a
citizen."
The PCR court concluded by denying defendant's petition "[b]ecause . . .
defendant's resulting deportation [was] the result of his failure to accurately
represent his status rather than counsel's deficiency." For that reason, defendant
failed to satisfy the "the first prong of [Strickland v. Washington, 466 U.S. 668,
687 (1984)]."
The court added that, but for the immigration consequences, defendant
had no reason to complain about his plea agreement because since defendant
was facing up to five years in prison if convicted, and his plea called for a
noncustodial sentence, it was "exceedingly reasonable under the circumstances"
to plead guilty. This appeal followed.
Defendant presents the following issue for our consideration in his appeal.
POINT I
[DEFENDANT] IS ENTITLED TO AN
EVIDENTIARY HEARING ON HIS CLAIM THAT
HIS ATTORNEY RENDERED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO
COMMUNICATE, VISIT, OR REVIEW OPTIONS
WITH HIM, THEREBY FORCING HIM INTO A
GUILTY PLEA; IN THE ALTERNATIVE, HE IS
ENTITLED TO A REMAND ON THE MATTER
BECAUSE THIS PCR COURT FAILED TO
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ADDRESS HIS CLAIM, DENYING HIS RIGHT TO
PETITION FOR POST-CONVICTION RELIEF.
We are not persuaded by defendant's argument and affirm.
"Where, as here, the PCR court has not conducted an evidentiary hearing,
we review its legal and factual determinations de novo." State v. Aburoumi, 464
N.J. Super. 326, 338 (App. Div. 2020).
To establish a PCR claim of IAC, a defendant must satisfy the two-
pronged test formulated in Strickland, 466 U.S. at 687, and adopted by our
Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), first by "showing that
counsel made errors so serious that counsel was not functioning as the 'counsel'
guaranteed . . . by the Sixth Amendment," Id. at 52 (quoting Strickland, 466 U.S.
at 687); then by proving he suffered prejudice due to counsel's deficient
performance. Strickland, 466 U.S. at 687, 691-92. Defendant must show by a
"reasonable probability" that the deficient performance affected the outcome.
Fritz, 105 N.J. at 58.
This two-prong analysis applies equally to convictions after a trial or after
a defendant pleads guilty. "[T]o set aside a plea based on IAC, 'a 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
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guilty and would have insisted on going to trial.'" Aburoumi, 464 N.J. Super. at
339 (quoting State v. Nunez-Valdez, 200 N.J. 129, 139 (2009)); see also State
v. Gaitan, 209 N.J. 339, 351 (2012).
Where a defendant who is pleading guilty is not a citizen of the United
States, the extent of plea counsel's obligation to advise the client about
immigration consequences depends upon whether it is apparent that deportation
is a certain result. See Aburoumi, 464 N.J. Super. at 340; State v. L.G.M., 462
N.J. Super. 357, 365 (App. Div. 2020). However, the imposition of the
obligation presupposes that counsel knows of the client's correct immigration
status.
Applying these guiding principles, we are satisfied that defendant failed
to make a prima facie showing IAC within the Strickland/Fritz test, substantially
for the reason stated by the PCR court in its oral decision. Counsel and the plea
court had the right to rely upon defendant's repeated misrepresentation of his
immigration status. Without knowing defendant's true status, plea counsel was
not obligated to address the immigration of defendant's plea.
Moreover, since defendant only argued in his PCR petition that had he
known of those consequences he would not have pled guilty, we discern no other
reason why defendant would not have accepted the plea offer even if he had
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known through counsel the details of the State's case against him. Other than
complaining that he became subject to deportation, defendant does not cite to
any other reasons why he would have turned the offer of non-custodial probation
to face a possible prison term of up to five years. In the end, defendant received
the lowest possible probationary sentence of one year, N.J.S.A. 2C:45-2(a),
without any time in jail. There is nothing in the record to demonstrate that the
State's case against defendant was so weak that he would have gone to trial and
faced years in prison.
Accordingly, without having established either Stickland/Fritz prong, the
PCR court correctly concluded that an evidentiary hearing was not warranted.
See State v. Preciose, 129 N.J. 451, 462-63 (1992).
Affirmed.
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