                                NOT FOR PUBLICATION WITHOUT THE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-4459-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

NETFA K. SIMON, a/k/a
SIMON NEFTA,

     Defendant-Appellant.
____________________________

                   Submitted May 11, 2020 – Decided July 10, 2020

                   Before Judges Rothstadt and Moynihan.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 15-01-0072.

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

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Stephanie Davis Elson, Assistant
                   Prosecutor, on the brief).

PER CURIAM
      Defendant Netfa K. Simon appeals from the trial court's order denying his

postconviction relief (PCR) petition without an evidentiary hearing, arguing:

            POINT ONE

            THIS MATTER MUST BE REMANDED BECAUSE
            [DEFENDANT] WAS NOT PRESENT AT ORAL
            ARGUMENT AND HIS ABSENCE WAS NOT
            PROPERLY WAIVED BY COUNSEL.

            POINT TWO

            [DEFENDANT]   IS   ENTITLED   TO    AN
            EVIDENTIARY HEARING ON HIS CLAIM THAT
            TRIAL COUNSEL RENDERED INEFFECTIVE
            ASSISTANCE OF COUNSEL BY FAILING TO
            INFORM   HIM    ADEQUATELY   OF    THE
            DEPORTATION CONSEQUENCES OF HIS PLEA.

We disagree and affirm.

      Following the return of an indictment charging him with third-degree

possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1)

(counts one and four); third-degree possession of CDS, with intent to distribute,

N.J.S.A. 2C:35-5(b)(3) (counts two and five); and third-degree possession of

CDS with intent to distribute within a school zone, N.J.S.A. 2C:35-7 (counts

three and six), defendant pleaded guilty to count three. Defendant, who told the

court during the plea colloquy that he was from Trinidad, Spain and was not a

United States citizen, claims his "counsel was ineffective for failing to advise


                                                                         A-4459-18T4
                                       2
him of the mandatory deportation consequences of his plea[.]" He also argues

counsel improperly waived his appearance at sentencing after Immigration and

Customs Enforcement, who maintained defendant in custody during the

deportation process, did not produce him.

      Because the PCR court did not hold an evidentiary hearing, we review de

novo both the factual inferences drawn by that court from the record and the

court's legal conclusions. State v. Blake, 444 N.J. Super. 285, 294 (App. Div.

2016).   To establish a PCR claim of ineffective assistance of counsel, a

defendant must satisfy the two-pronged test formulated in Strickland v.

Washington, 466 U.S. 668, 687 (1984), 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," Fritz, 105 N.J. 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.

      A plea counsel's performance is deficient under the first prong of the

Strickland standard if counsel "provides false or misleading information


                                                                          A-4459-18T4
                                        3
concerning the deportation consequences of a plea of guilty" to a noncitizen

defendant. State v. Nuñez-Valdéz, 200 N.J. 129, 138 (2009). We previously

recognized the United States Supreme Court's holding in Padilla v. Kentucky,

559 U.S. 356, 367 (2010), that plea counsel "is required to address, in some

manner, the risk of immigration consequences of a non[]citizen defendant's

guilty plea," Blake, 444 N.J. Super. at 295. The Padilla Court clarified that

counsel's duty is not limited to avoiding dissemination of false or misleading

information, but also includes an affirmative duty to inform a defendant entering

a guilty plea of the relevant law pertaining to mandatory deportation. 559 U.S.

at 369. Counsel's "failure to advise a noncitizen client that a guilty plea will

lead to mandatory deportation deprives the client of the effective assistance of

counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J. Super.

329, 331 (App. Div. 2012). Accordingly, a noncitizen defendant considering

whether to plead guilty to an offense must "receive[] correct information

concerning all of the relevant material consequences that flow from such a plea."

State v. Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012).

      Although, we have held that "[i]n the 'numerous situations in which the

deportation consequences of a particular plea are unclear . . . a criminal defense

attorney need do no more than advise a noncitizen client that pending criminal


                                                                          A-4459-18T4
                                        4
charges may carry a risk of adverse immigration consequences,'" Blake, 444 N.J.

Super. at 295 (second alteration in original) (quoting Padilla, 559 U.S. at 369),

"where the 'terms of the relevant immigration statute are succinct, clear and

explicit in defining the removal consequence,' then an attorney is obliged to be

'equally clear,'" ibid. (quoting Padilla, 559 U.S. at 368-69). "[C]ounsel's failure

to point out to a noncitizen client that he or she is pleading to a mandatorily

removable offense [constitutes] deficient performance of counsel[.]" Id. at 300

(first alteration in original) (emphasis omitted) (quoting State v. Gaitan, 209 N.J.

339, 380 (2012)).

      Unsupported averments, however, do not establish a prima facie case

requiring an evidentiary hearing. R. 3:22-10(b); State v. Preciose, 129 N.J. 451,

462-63 (1992). A "defendant must allege specific facts and evidence supporting

his allegations," State v. Porter, 216 N.J. 343, 355 (2013), and "do more than

make bald assertions that he was denied the effective assistance of counsel,"

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

      The only proffer defendant made regarding counsel's deficient

performance was the bald assertion in his certification submitted in support of

his PCR petition that his counsel "failed to inform [him] that [he] faced

mandatory deportation after [he] entered a guilty plea to a drug distribution


                                                                            A-4459-18T4
                                         5
offense," and that had he been so informed, he "would not have entered a guilty

plea [because he] believe[d] the State's evidence . . . was weak and [he]

reasonably believe[d he] could have prevailed at trial."

      In answer to question seventeen on the plea form, defendant

acknowledged he was not a United States citizen, understood his guilty plea may

have resulted in his removal from the United States and that he had "the right to

seek individualized advice from an attorney about the effect [his] guilty plea

[would] have on [his] immigration status." He affirmed that he discussed "the

potential immigration consequences" of the plea with counsel.

      During the plea hearing, the court established defendant could read and

write English, and confirmed defendant reviewed all the questions, signed the

plea forms and that the answers he gave were true. After defendant admitted he

was not a United States citizen, the trial court questioned defendant about the

immigration consequences of the plea agreement:

            [THE COURT:] Okay. Do you understand that by
            entering this guilty plea . . . you could have adverse
            immigration consequences including removal from this
            country? Do you understand that?

            [DEFENDANT:] Yes, Your Honor.

            [THE COURT:] And in understanding that, do you still
            wish to proceed today?


                                                                         A-4459-18T4
                                        6
            [DEFENDANT:] Yes, Your Honor.

            [THE COURT:] Okay. Would you like to speak with
            an immigration attorney before you speak –

            [DEFENDANT:] No, Your Honor.

      Although it is not typical for courts to solely rely on a written plea form

when taking a plea, State v. Kovack, 91 N.J. 476, 484 n.1 (1982), we are satisfied

that the clear terms of the plea form in combination with the trial court's colloquy

with defendant belied defendant's naked assertion that counsel misinformed him

about deportation consequences. "Defendant may not create a genuine issue of

fact, warranting an evidentiary hearing, by contradicting his prior statements

without explanation."     Blake, 444 N.J. Super. at 299.         Defendant's bald

averments, belied by the record, do not establish a prima facie claim. And, an

evidentiary hearing is not to be used to explore PCR claims. See State v.

Marshall, 148 N.J. 89, 157-58 (1997). As such, an evidentiary hearing was

properly denied.

      We also discern defendant failed to meet the second prong of the

Strickland-Fritz test.   In that this PCR petition involves a plea agreement,

"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

                                                                            A-4459-18T4
                                         7
have [pleaded] guilty and would have insisted on going to trial.'" Nuñez-Valdéz,

200 N.J. at 139 (first alteration in original) (quoting State v. DiFrisco, 137 N.J.

434, 457 (1994)).

      Defendant was sentenced to the lowest possible probationary sentence of

one year, N.J.S.A. 2C:45-2(a), even though he faced a mandatory sentence

including a period of parole ineligibility because the violation involved less than

one-half ounce of heroin, N.J.S.A. 2C:35-7(a). Contrary to defendant's assertion

that the State's case was weak and he believed he could have prevailed at trial,

the State's allegations, as set forth in the presentence report, were that police

officers observed defendant standing on the sidewalk with another male by an

abandoned house when defendant placed a black bag in his rear waistband. As

the officers approached in their vehicle, defendant shifted the bag in his

waistband. When the officers exited the vehicle and approached defendant, he

"began to shift his body turning the area where he placed the items away from

the officers.   When advised of the officers observation, he spontaneously

uttered[,] 'I only got [three] bags of weed on me.' He retrieved the bag and

placed it onto the vehicle he was standing by." The officers were able to see

three bundles of heroin held together by rubber bands and several small bags of

suspected crack cocaine in the open bag.


                                                                           A-4459-18T4
                                        8
      Moreover, defendant's probationary sentence was based on his

cooperation with law enforcement which the court weighed "heavily"—as

requested by the State—in sentencing defendant, making clear defendant did not

anticipate going to trial. We further note that not only were all other counts of

this indictment dismissed at sentencing, so too were counts in two other

indictments, including: first-degree robbery, N.J.S.A. 2C:15-1; third-degree

unlawful possession of a weapon – handgun, N.J.S.A. 2C:39-5(b); third-degree

possession of a weapon for an unlawful purpose – firearm, N.J.S.A. 2C:39-4(a);

fourth-degree prohibited weapon possession – defaced firearm, N.J.S.A. 2C:39-

3(d); fourth-degree prohibited weapon possession – dum-dum bullet, N.J.S.A.

2C:39-3(f); second-degree certain persons not to have weapons, N.J.S.A. 2C:39-

7(b); three counts of second-degree official misconduct, N.J.S.A. 2C:30-2(a);

and three counts of second-degree conspiracy – agree/engage in conduct that

constitutes a crime, N.J.S.A. 2C:5-2(a)(1). Defendant also pleaded guilty to

third-degree pattern of official misconduct, N.J.S.A. 2C:30-7(a), under a

separate indictment that is not the subject of this appeal. The State, as it did for

the school-zone case, asked the court to impose a probationary sentence on that

matter, although it noted that crime carried a mandatory period of incarceration.

See N.J.S.A. 2C:43-6.5. The sentencing transcript reveals the court abided by


                                                                            A-4459-18T4
                                         9
that request and ran both probationary terms concurrent.       And, defendant's

sentence ran concurrent to a violation of probation he faced in New York

because he was on probation at the time he committed the drug offense.

      Defendant's criminal history included two prior New Jersey indictable

convictions, nine municipal court convictions and the New York conviction.

Under the circumstances, even if trial counsel was ineffective—which we do not

determine or suggest—defendant has failed to show that "but for counsel's

[alleged] errors, [he] would not have [pleaded] guilty and would have insisted

on going to trial." See ibid. (quoting DiFrisco, 137 N.J. at 457).

      Defendant's remaining arguments, including his request for a remand

because his presence at the PCR oral argument was improperly waived, and that

the court's remark at sentencing—"hopefully I don't see him again"—supported

his claim "that counsel was under the misunderstanding that [defendant] was not

mandatorily deportable," are without sufficient merit to warrant discussion in

this opinion. R. 2:11-3(e)(2). We note only that a defendant has the right to be

present only when oral testimony is adduced at a PCR hearing. R. 3:22-10(a).

Although there is no evidence in the record that defendant requested that counsel

waive his appearance, the waiver-by-counsel upon defendant's request provision

in Rule 3:22-10(a) pertains to those proceedings. Ibid. Defendant's presence at


                                                                         A-4459-18T4
                                      10
other PCR proceedings are in the court's discretion. Ibid. As noted, the court

did not take testimony at the PCR hearing. And, the court's off-hand remark

about not seeing defendant again, in context, did not relate to any conversation

regarding immigration consequences.

      Affirmed.




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                                      11
