                                NOT FOR PUBLICATION WITHOUT THE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-0608-18T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DABOOZ SANON,

     Defendant-Appellant.
______________________________

                    Submitted January 29, 2020 — Decided February 12, 2020

                    Before Judges Whipple and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Accusation No. 06-08-1168.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Frank M. Gennaro, Designated Counsel, on
                    the brief).

                    Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                    attorney for respondent (Meredith L. Balo, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      Defendant Dabooz Sanon appeals from a June 29, 2018 judgment denying

his petition for post-conviction relief (PCR). We affirm.

      In 2006, defendant pled guilty to third-degree possession of cocaine with

intent to distribute, N.J.S.A. 2C:35-5(a)(1).     In accordance with his plea

agreement, he received a two-year probationary sentence. In 2009, defendant

violated probation and was re-sentenced to 364 days in the county jail, with

credit for time served, and discharged from probation without improvement.

      In 2017, defendant filed a PCR petition, arguing his plea counsel was

ineffective because he told defendant he would not be deported for entering into

a plea. Defendant argued he only learned he would be deported in 2016, when

he received a notice of removal proceedings from the Department of Homeland

Security, and he would not have entered into the plea if he knew he would be

deported.

      Judge William A. Daniel denied defendant's PCR petition in a thorough

and well-written thirteen-page decision. The judge found plea counsel was not

ineffective because "[a]t the time of defendant's plea, defense attorneys were not

required to advise a defendant about the removal consequences of a guilt y plea,

but rather, counsel had to refrain from providing 'false or misleading [material]

information concerning the deportation consequences' of the plea." (second


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                                        2
alteration in original).   The judge noted the subsequent change to the law

pursuant to Padilla v. Kentucky, 559 U.S. 356, 374 (2010), holding that

"[c]ounsel who fails to apprise a defendant that a guilty plea carries a risk of

deportation is deficient" did not retroactively apply to defendant's 2006 guilty

plea.

        Moreover, Judge Daniel found no evidence in the record corroborating the

claim plea counsel affirmatively misadvised defendant. The record offered no

indication either plea counsel or the court knew defendant was not a United

States citizen.    "Instead, throughout formal proceedings, [defendant] . . .

continuously represented that he was a U.S. citizen. . . . In fact, in [defendant's]

brief he states, '[he] believed he was a U.S. citizen at the time of the plea. Based

upon this, trial counsel told him deportation would not take place.'"

        The judge also noted defendant answered "not applicable" to the following

question on his plea form: "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?"

Moreover, the judge who accepted the plea asked if defendant was a U.S. citizen,

and he responded affirmatively.

        Judge Daniel concluded defendant failed to show counsel was deficient.

He also found defendant failed to demonstrate any prejudice because he faced a


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                                         3
sentence of up to five years in prison if convicted and instead received probation.

Additionally, the judge found defendant failed to demonstrate grounds to

withdraw his guilty plea.

      A PCR court need not grant an evidentiary hearing unless "a defendant

has presented a prima facie [case] in support of post-conviction relief." State v.

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

Preciose, 129 N.J. 451, 462 (1992)). "To establish such a prima facie case, the

defendant must demonstrate a reasonable likelihood that his or her claim will

ultimately succeed on the merits." Ibid. The court must view the facts "in the

light most favorable to defendant." Ibid. (quoting Preciose, 129 N.J. at 462-63);

accord R. 3:22-10(b). If the PCR court has not held an evidentiary hearing, we

"conduct a de novo review . . . ." State v. Harris, 181 N.J. 391, 421 (2004).

      To establish ineffective assistance of counsel, defendant must satisfy a

two-prong test: "First, the defendant must show that counsel's performance was

deficient. This requires showing that counsel made errors so serious that counsel

was not functioning as the 'counsel' guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984);

State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland, 466 U.S. at 687).


                                                                           A-0608-18T3
                                        4
Counsel's performance is evaluated with extreme deference, "requiring 'a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance . . . .'" Fritz, 105 N.J. at 52 (alteration in original)

(quoting Strickland, 466 U.S. at 688-89).

      To demonstrate prejudice, "'actual ineffectiveness' . . . must [generally] be

proved[.]" Fritz, 105 N.J. at 52 (quoting Strickland, 466 U.S. at 692-93).

Petitioner must show the existence of "a reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Ibid. (quoting Strickland, 466 U.S. at 694).

      The Supreme Court has stated:

            When a guilty plea is part of the equation, we have
            explained that "[t]o set aside a guilty plea based on
            ineffective assistance of counsel, 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 guilty and would have insisted on going to
            trial.'" State v. DiFrisco, 137 N.J. 434, 457 (1994)
            (citations omitted) (alteration in original).

            [State v. Nunez-Valdez, 200 N.J. 129, 139 (2009).]

      Defendant raises the following point on appeal:



                                                                           A-0608-18T3
                                        5
            THE PCR COURT ERRED BY DENYING
            DEFENDANT'S    PETITION   FOR    POST-
            CONVICTION RELIEF WITHOUT AFFORDING
            HIM AN EVIDENTIARY HEARING ON THE
            CLAIM THAT HIS PLEA ATTORNEY PROVIDED
            HIM   WITH   MISADVICE   AS   TO   THE
            IMMIGRATION CONSEQUENCES OF HIS GUILTY
            PLEA.

                  A.   THE     PREVAILING     LEGAL
                  PRINCIPLES REGARDING CLAIMS FOR
                  INEFFECTIVE ASSISTANCE OF COUNSEL,
                  EVIDENTIARY HEARINGS AND PETITIONS
                  FOR POST-CONVICTION RELIEF.

                  B.  THE IMMIGRATION CONSEQUENCES
                  OF THE GUILTY PLEA.

Specifically, defendant argues the judge's conclusion defendant would have

received a worse outcome without the plea was unsupported by the record. He

asserts the judge also erred in addressing his petition by analyzing the factors

for a plea withdrawal.

      Our de novo review of the record convinces us defendant's arguments are

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2). For the reasons expressed in Judge Daniel's opinion, defendant did not

demonstrate a prima facie case of ineffective assistance of counsel because he

failed to show counsel performed deficiently or any evidence counsel's acts or

omissions prejudiced the outcome of this case.


                                                                        A-0608-18T3
                                       6
Affirmed.




                A-0608-18T3
            7
