State of New Jersey v. M.J.Q.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2914-24 STATE OF NEW JERSEY, Plaintiff-Respondent, v. M.J.Q.,1 Defendant-Appellant. Submitted September 28, 2026 – Decided October 8, 2026 Before Judges Sabatino and Perez Friscia. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 15-12- 2175. Jennifer N. Sellitti, Public Defender, attorney for appellant (Nancy E. Lucianna, Designated Counsel, on the brief). Raymond S. Santiago, Monmouth County Prosecutor, attorney for respondent (Melinda A. Harrigan, Assistant Prosecutor, of counsel and on the brief). 1 We use initials because the case is sealed. PER CURIAM Defendant M.J.Q. appeals the trial court's April 30, 2025 order denying his petition for post-conviction relief ("PCR") relating to his May 2016 guilty plea to distribution of marijuana. Having applied the pertinent legal standards to the record and defendant's arguments, we affirm. Although the matter has an intricate procedural history, this appeal boils down to whether defendant presented prima facie grounds before the PCR judge to justify an evidentiary hearing delving into the legal advice he was given in 2016 concerning the immigration consequences of him pleading guilty to the marijuana offense. The chronology is detailed at length in the trial court's nineteen-page April 30, 2025 opinion denying PCR, and we briefly summarize it here. Defendant is a native of Trinidad who came to the United States at the age of five. He obtained interim status in 2012 under the Deferred Action for Childhood Arrivals program. He married an American citizen. In 2015, defendant sold marijuana to an undercover officer on two occasions. He was charged with a total of eight counts—for each sale, he was charged with possession of marijuana with intent to sell, possession of marijuana with intent to sell near a public park, distribution of marijuana, and distribution A-2914-24 2 of marijuana near a public park. He retained an attorney ("plea counsel") who he believed practiced both immigration and criminal law. Plea counsel negotiated a plea agreement with the State in which defendant pled guilty to one count of fourth-degree marijuana distribution, N.J.S.A. 2C:35-5(b)(12), with the State recommending probation. The other seven counts of the indictment were dismissed by agreement. According to defendant's certification submitted in support of his PCR petition, plea counsel allegedly advised him that the fourth-degree offense would "not subject [him] to deportation." The plea form states that defendant also discussed the guilty plea with a second attorney with immigration expertise ("the second attorney"). 2 In the May 31, 2016 plea transcript, defendant acknowledged speaking with that second immigration attorney "with regard to the [immigration] ramifications." Despite this, defendant's PCR certification asserted, "I do not recall discussing this matter with any other immigration attorney prior to the plea." The plea transcript also reflects that defendant answered all the customary questions concerning citizenship and his ability to have obtained advice 2 The last name of that second attorney appears to have been misspelled on the plea form and in the plea transcript. A-2914-24 3 concerning the potential deportation consequences of his guilty plea. The relevant colloquy is as follows: THE COURT: Were you able to read and understand the paperwork, the Plea Form, as well as the police reports and discovery that were provided to your lawyer? THE DEFENDANT: Yes, sir. THE COURT: You understand you are going to offer a plea of guilty to this one charge. I am going to ask you a number of questions about your plea. If you don't understand any of the questions, please tell us that, we will either repeat the question or ask you another question, because once you do answer, we are all going to assume that you fully heard and completely understood each question that you answered; do you understand that? THE DEFENDANT: Yes, sir. THE COURT: If at any time you need to speak to your lawyer, please tell me that. We will stop what we are doing. I will give you all of the time that you need to speak to your lawyer; do you understand that? THE DEFENDANT: Yes, sir. THE COURT: This is important because once I accept your plea and sentence you, at that point you will have a criminal record and a criminal conviction for this offense, just as if you have been found guilty for a trial; do you understand that? THE DEFENDANT: Yes. A-2914-24 4 THE COURT: This is also important because if I accept your plea this afternoon, it's being freely and voluntarily entered and you later come back to court and try to tell myself or some other judge that this wasn't true, that on the day of your pleading, meaning today, that you were sick, that you were drunk, that you didn't understand what was going on and somebody forced or coerced you into this deal or there was some sort of a side deal that you didn't tell me about, either myself or some other judge is going to have a hard time believing that because we are going to go over all of that now with you under oath on the record; do you understand that? THE DEFENDANT: Yes. THE COURT: Are you a citizen of the United States? THE DEFENDANT: No, sir. THE COURT: It says in your Plea Form that you were born in Trinidad. THE DEFENDANT: Yes. THE COURT: Do you understand that if you are not a citizen of this, of the United States, that your plea of guilty may result in your being deported or involuntarily removed from this country? Do you understand that? THE DEFENDANT: Yes. THE COURT: If you are in this country legally, do you understand that your plea of guilty may result in your being deported or involuntarily removed or may result in a denial of any application by you for United States citizenship? Do you understand that? A-2914-24 5 THE DEFENDANT: Yes. THE COURT: Do you also understand that if you are in this country illegally, that your plea of guilty most probably will result in your being deported or involuntarily removed? Do you understand that? THE DEFENDANT: Yes. THE COURT: Do you understand that if your plea of guilty is to a crime considered to be an aggravated felony under federal law, that you will be subject to deportation or removal? Do you understand that? THE DEFENDANT: Yes. THE COURT: And do you also understand that you have the right to seek legal advice on your immigration status before you enter this guilty plea? Do you understand that? THE DEFENDANT: Yes. THE COURT: Do you also understand that this state court has no jurisdiction or control over any federal court that makes decisions about immigration, including the decision to deport or involuntarily remove you or deny your citizenship? That's done in federal court, not this court; do you understand that? THE DEFENDANT: Yes. THE COURT: Do you have any questions about the impact of your guilty plea on your immigration status? THE DEFENDANT: No. A-2914-24 6 THE COURT: Do you have any difficulty with hearing, sight or reading? THE DEFENDANT: No. THE COURT: Did you go over this plea with your lawyer? THE DEFENDANT: Yes. THE COURT: Did she answer all of your questions? THE DEFENDANT: Yes. THE COURT: Are you satisfied with the advice and services of counsel? THE DEFENDANT: Yes. THE COURT: Do you need more time to speak to your lawyer? THE DEFENDANT: No, sir. [(Emphasis added).] Defendant was sentenced in September 2016 to probation, consistent with the plea agreement. About three years later, defendant was charged in three separate indictments with other crimes. He pled guilty in 2021 to various counts of those indictments and then was a cooperating witness for the State. He was thereafter accepted into the Recovery Court program. But before he was released from custody in May 2022, the United States Immigration and Customs A-2914-24 7 Enforcement agency ("ICE") imposed a detainer on him. After a series of immigration proceedings, the Second Circuit Court of Appeals held that he was still deportable, notwithstanding New Jersey's passage of a statute, N.J.S.A. 2C:52-6.1, decriminalizing and automatically expunging certain marijuana offenses. Defendant moved to vacate the automatic expungement so that he could then petition to obtain PCR and contest the 2016 charges. The trial court granted the motion in April 2024. Within a month, ICE deported him to Trinidad, where he now apparently resides. This PCR petition ensued. In his written analysis, the PCR judge agreed with defendant that his petition was not procedurally barred. Even so, the judge found that defendant had not presented a prima facie case of ineffective assistance of plea counsel. The judge also concluded that defendant had not shown sufficient grounds to vacate his 2016 guilty plea under the withdrawal factors of State v. Slater, 198 N.J. 145, 150 (2009). In that regard, the judge noted that defendant, who admittedly sold marijuana to an undercover officer, had no colorable claim of innocence. The judge also noted the considerable prejudice to the State in trying a case nearly a decade later. The judge further underscored that the record A-2914-24 8 reflected that defendant had the assistance of two attorneys with immigration expertise when he pled guilty. In his brief on appeal, defendant presents the following points for our consideration: POINT ONE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL ADVISED THAT THERE WERE NO IMMIGRATION CONSEQUENCES. POINT TWO THIS COURT MUST REMAND FOR AN EVIDENTIARY HEARING. POINT THREE THIS PETITION WAS TIMELY AND THE VACATUR ORDER WAS PROPER. Having considered these arguments, we affirm the denial of PCR and an evidentiary hearing, substantially for the sound reasons articulated in the April 30, 2025 written opinion of Judge Michael Guadagno. We briefly emphasize a few points. The applicable substantive law is clear. Under the Sixth Amendment of the United States Constitution, a criminal defendant is entitled to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984); A-2914-24 9 see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland factors under New Jersey law). That right of effective assistance extends to plea counsel. Padilla v. Kentucky, 559 U.S. 356, 373 (2010); State v. Nuñez-Valdéz, 200 N.J. 129, 142-43 (2009). In addition to a failure of defense counsel to offer or provide advice, case law has also recognized that ineffective assistance principles extend to defense counsel's provision of incorrect advice about deportation consequences on which a defendant relies in agreeing to plead guilty. Nuñez-Valdéz, 200 N.J. at 142-43 . As we noted above, in this case, defendant has attempted to establish ineffective assistance by asserting in a certification that his plea counsel erroneously advised him that his negotiated plea of guilty to the fourth-degree marijuana offense would not cause him to be deported. Defendant claims that, in retrospect, he would not have agreed to plead guilty had plea counsel told him his plea would expose him to deportation. Defendant argues that, at the very least, the PCR court should have conducted an evidentiary hearing to explore the advice he was given by counsel. Case law is clear that an evidentiary hearing on a PCR petition is required only when: (1) the defendant establishes a prima facie case in support of PCR; A-2914-24 10 (2) the court determines that there are disputed issues of material fact that cannot be resolved by review of the existing record; and (3) the court determines that an evidentiary hearing is required to resolve the claims asserted. State v. Porter, 216 N.J. 343, 354 (2013) (citing 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). The PCR court properly applied these well-established principles in rejecting defendant's request for an evidentiary hearing. Other than his blanket assertion that his plea counsel provided him with incorrect advice about deportation consequences, defendant provides no substantiation of that claim. For example, he has not presented a certification or any file notes from his plea counsel corroborating that counsel had advised him of plea consequences. There is no documentation whatsoever. Nor has defendant evidenced any reasonable attempt to obtain such corroboration or documentation. And, as the PCR judge rightly noted, the plea form and plea transcript identify the name of a second immigration attorney who advised defendant, but defendant states in his A-2914-24 11 certification that he does not recall an additional attorney providing him with any immigration advice at the time of his plea. In short, we concur with the PCR's ruling that no prima facie case of ineffective assistance has been presented here. The "bald assertions" in defendant's certification are inadequate to require a hearing. Cummings, 321 N.J. Super. at 170 . Additionally, we agree with the PCR judge that defendant has not shown sufficient justification to vacate his guilty plea under a Slater analysis, particularly the considerable prejudice to the State in attempting to revive a prosecution eleven years after the offense occurred. Slater, 198 N.J. at 150 . We appreciate the lengthy efforts that defendant undertook to vacate his expungement, litigate his immigration case through the federal appellate courts, and file the present PCR petition. Unfortunately, those efforts fall short as a matter of law and lack sufficient evidentiary support. We therefore affirm the PCR court's ruling. Affirmed. A-2914-24 12