                        NOT FOR PUBLICATION WITHOUT THE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-2531-16T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ELTON G. CAESAR, a/k/a CAESAR,
and ELTON S. CAESAR,

     Defendant-Appellant.
___________________________________________

              Submitted May 22, 2018 – Decided June 25, 2018

              Before Judges Yannotti and DeAlmeida.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Indictment No. 11-
              11-2104.

              The Anthony Pope Law Firm, PC, attorneys for
              appellant (Annette Verdesco, on the brief).

              Robert D. Laurino, Acting Essex County
              Prosecutor, attorney for respondent (Tiffany
              M.    Russo,    Special    Deputy    Attorney
              General/Acting   Assistant   Prosecutor,   of
              counsel and on the brief).

PER CURIAM
     Defendant appeals from an order entered by the Law Division

on December 2, 2016, which denied his petition for post-conviction

relief (PCR). We affirm.

                                        I.

     A   grand   jury    in    Essex    County       returned     a   twelve-count

indictment,   which     charged    defendant         and    others    with    various

offenses. Defendant was charged with first-degree carjacking,

N.J.S.A.   2C:15-2(a)(2)       (count    one);       first-degree       kidnapping,

N.J.S.A.   2C:13-1(b)(1)       (count        two);     third-degree       aggravated

assault,   N.J.S.A.     2C:12-1(b)(2)         (count       three);    fourth-degree

unlawful   possession     of   a   weapon     (knife),       N.J.S.A.     2C:39-5(d)

(count four); third-degree possession of a weapon (knife) for an

unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); second-degree

conspiracy to commit kidnapping, N.J.S.A. 2C:5-2 and N.J.S.A.

2C:13-1(b)(2)    (count    six);       first-degree         kidnapping,      N.J.S.A.

2C:13-1(b)(2) (count seven); second-degree aggravated assault,

N.J.S.A.   2C;12-1(b)(1)       (count        eight);       first-degree      robbery,

N.J.S.A. 2C:15-1 (count nine); second-degree unlawful possession

of a firearm (handgun), N.J.S.A. 2C:39-5(b) (count ten); and

second-degree possession of a firearm (handgun) for an unlawful

purpose, N.J.S.A. 2C:39-4(a) (count eleven).

     On June 5, 2012, defendant pled guilty to count two (first-

degree   kidnapping)    and    count     eight       (second-degree       aggravated

                                         2                                    A-2531-16T1
assault). The State agreed to recommend that defendant be sentenced

in the second-degree range to a five-year custodial term, with an

eighty-five percent period of parole ineligibility, pursuant to

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The State

also agreed to dismiss the charges against the co-defendants.

     At the plea hearing, defendant acknowledged that he had

reviewed the plea forms, gave honest answers to the questions, and

initialed and signed the forms. Defendant provided the following

responses to Question 17 on the plea form:

          17. a. Are you a citizen of the United States?
          [Defendant circled "No."]

          b. Do you understand that if you are not a
          citizen of the United States, this guilty plea
          may result in your removal from the United
          States and/or stop you from being able to
          legally enter or re-enter the United States?
          [Defendant circled "Yes."]

          c. Do you understand that you have the right
          to seek individualized advice from an attorney
          about the effect your guilty plea will have
          on your immigration status? [Defendant circled
          "Yes."]

          d. Have you discussed with an attorney the
          potential immigration consequences of your
          plea? If the answer is "No," proceed to
          question 17e. If the answer is "Yes," proceed
          to question 17f. [Defendant circled "YES."]

          e. Would you like the opportunity to do so?
          [Defendant circled "Yes."]

          f. Having been advised of the possible
          immigration consequences and of your right to

                                3                           A-2531-16T1
           seek individualized legal advice on your
           immigration consequences, do you still wish
           to plead guilty? [Defendant circled "Yes."]

     In response to the court's questions, defendant stated he

understood that if he went to trial and the jury found him guilty

on the kidnapping charge, he could be sentenced to up to thirty

years in state prison. Defendant told the court he was pleading

guilty because he was guilty of the charges.

     Defendant provided a factual basis for his plea to kidnapping.

He stated that on April 13, 2011, he lured his brother-in-law into

his vehicle and would not release him without being harmed.

Defendant said he lured his brother-in-law to his house and beat

him up. Defendant stated he knew it was unlawful to kidnap the

victim "like this" against his will. Defendant also provided a

factual basis for his plea to the charge of aggravated assault.

He admitted he confronted his brother-in-law and used physical

force upon him, causing the victim to sustain serious bodily

injury.

     The   court   accepted   the   plea   and   found   that   defendant

understood the nature of the charges, received the advice of

competent counsel, and knew the maximum penalty that could be

imposed. The court determined that defendant voluntarily waived

his right to a jury trial, and the plea was not the result of any



                                    4                             A-2531-16T1
threats, force, or coercion. The court found that defendant had

provided an adequate factual basis for his plea.

     On July 20, 2012, the court sentenced defendant in accordance

with the plea to a five-year custodial term, with an eighty-five-

percent    period   of     parole   ineligibility,    pursuant   to     NERA.

Defendant did not file a direct appeal.

     On August 20, 2015, defendant filed a pro se petition for

PCR, alleging that he did not have the effective assistance of

counsel.   He    claimed   his   attorney:   misinformed   him   about     the

immigration consequences of his plea; "cajoled" him into accepting

the State's plea offer without informing him of the "pros and

cons" of going to trial; failed to investigate his case; did not

review the discovery with him; and failed to file pre-trial

motions. Defendant also alleged the court did not inform him of

the immigration consequences of his plea.

     The   PCR    court    assigned   counsel   to   represent   defendant.

Counsel filed a brief in support of the petition and sought an

evidentiary hearing. The PCR judge heard oral argument on August

5, 2016, and granted defendant's application for an evidentiary

hearing.

                                      II.

     At the hearing, defendant's trial attorney testified that she

has handled more than six hundred cases involving defendants whose

                                       5                              A-2531-16T1
cases raised immigration issues. She stated that when dealing with

those clients, she first ascertains whether the defendant is a

United States citizen and has any potential immigration issues.

She testified that when preparing a defendant for a plea in a

criminal case, she reviews the court-generated plea form with the

client.

     Counsel noted that by the time she prepares a client for

entry of a plea, she has already discussed with the client the

likelihood or unlikelihood of conviction. She and the client

generally discuss the parameters of the plea and any potential

immigration     consequences.    Counsel     noted   that   she    is   not    an

immigration attorney, and the client can go seek legal advice

regarding immigration "elsewhere." Then, she would go over the

plea form and the questions with the client.

     Counsel stated that defendant was a former client and she

represented him in this matter. Counsel was generally familiar

with the case and the charges, and noted that the charges had been

resolved with a plea. Counsel testified that she completed the

court's standard plea form with defendant.

     Counsel     was     asked   if   she    discussed      the   immigration

consequences of the plea with defendant. She replied that four

years had passed since defendant pleaded guilty, and she did not

recall    her   "exact   conversation"      with   defendant.     She   stated,

                                      6                                 A-2531-16T1
however, that she was aware of his immigration status and it was

something   they   discussed.   Counsel   could   not   recall   whether

defendant indicated he wanted to speak with immigration counsel.

Counsel also said defendant never indicated he did not want to

enter a plea. Rather, it seemed as if defendant wanted to enter

the plea.

     On cross-examination, counsel acknowledged that she was aware

defendant was not a citizen of the United States and that was

noted on the plea form. She said defendant had answered "Yes" to

the question of whether he understood that his guilty plea could

result in his removal from the United States.

     Defendant also had acknowledged that he understood he had the

right to seek individualized advice regarding the effect his guilty

plea would have on his immigration status. Counsel noted that

defendant indicated on the form that he had discussed the potential

immigration consequences of the plea with an attorney, but he also

stated that he would like the opportunity to do so.

     Counsel stated that she did not have a specific recollection

of whether defendant sought the advice of an immigration attorney.

She noted, however, that she knew there were possible immigration

consequences, and she discussed them with defendant. Counsel said

this included the potential that defendant would be deported or

removed from the United States pursuant to a removal proceeding.

                                  7                              A-2531-16T1
     Counsel was asked if she knew the crimes that would require

deportation and the crimes that could lead to possible deportation.

Counsel replied that she was not an immigration attorney, but she

was familiar with terms such as a crime of moral turpitude and an

aggravated felony. Counsel noted that defendant had been charged

with first-degree kidnapping, which was "the top charge." Based

on her understanding, counsel said that if convicted, "there was

a very good chance that he would be deported."

     When asked if she advised defendant there was a "good chance

of deportation," counsel replied she did not recall whether she

said "good chance." She stated, "I just know that . . . not knowing

what another [j]udge would do, that there was a more likely chance

that he was going to be deported based on the nature of the crime

and his guilty plea."

     Counsel   testified   that   based   on   her   discussions   with

immigration attorneys and her colleagues, an immigration judge

could consider the totality of the circumstances in determining

whether a person should be deported. She stated she would not give

a client an unequivocal statement that the client was "definitely"

going to be deported. She did not recall whether defendant spoke

with another attorney in her office on this issue.

     Counsel further testified that to her knowledge, defendant

had not spoken with an immigration attorney outside of her office.

                                  8                            A-2531-16T1
She did not recall whether she had encouraged defendant to seek

specialized individualized immigration advice from an attorney who

practices predominantly in that area of the law. She had no

independent recollection of putting the plea on the record.

     After hearing arguments by the attorneys, the judge reserved

decision. On December 2, 2016, the judge filed a lengthy written

opinion in which she concluded that defendant had not established

he had been denied the effective assistance of counsel with regard

to his plea. The judge found that although his attorney's advice

was deficient, defendant failed to show he was prejudiced by the

deficient advice. The judge entered an order dated December 2,

2016, denying PCR. This appeal followed.

                              III.

     On appeal, defendant argues the court committed reversible

error by denying his PCR petition. Defendant contends the evidence

presented at the evidentiary hearing shows he was denied the

effective assistance of counsel with regard to his plea.

     Where, as in this case, the PCR court conducts an evidentiary

hearing on the petition, we will defer to the court's findings of

fact based on live-witness testimony if the court's findings are

"supported by sufficient credible evidence in the record." State

v. Nash, 212 N.J. 518, 540 (2013). However, we are not required

to defer to the PCR court's interpretation of the law, which we

                                9                          A-2531-16T1
review de novo. Id. at 540-41 (citing State v. Harris, 181 N.J.

391, 415–16 (2004)).

     To succeed on his claim of ineffective assistance of counsel,

a defendant must meet the test established by             Strickland v.

Washington, 466 U.S. 668, 686 (1984), and adopted by our Supreme

Court in State v. Fritz, 105 N.J. 42, 58 (1987). Under Strickland,

the defendant must show that counsel's performance was deficient

and, if so, that there was a "reasonable probability that, but for

counsel's unprofessional errors, the result of the proceeding

would have been different." Strickland, 466 U.S. at 694.

     Where, as here, the defendant alleges he was denied the

effective assistance of counsel with regard to a guilty plea, the

defendant   must   establish   that    counsel's   performance   was   not

"within the range of competence demanded of attorneys in criminal

cases." State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting

Tollett v. Henderson, 411 U.S. 258, 266 (1973)). The defendant

also must show "there is a reasonable probability that, but for

counsel's errors, [the defendant] would not have [pleaded] guilty

and would have insisted on going to trial." Ibid. (quoting Hill

v. Lockhart, 474 U.S. 52, 59 (1985)). See also State v. Nuñez-

Valdéz, 200 N.J. 129, 142 (2009) (quoting DiFrisco, 137 N.J. at

457).



                                  10                              A-2531-16T1
      With regard to the first prong of the Strickland test, an

attorney   has   "an   affirmative   obligation   to     inform    a   client-

defendant when a plea places the client at risk of deportation."

State v. Gaitan, 209 N.J. 339, 356 (2012) (citing Padilla v.

Kentucky, 559 U.S. 356, 373–74 (2010)). If the risk of deportation

is uncertain, the attorney need only advise the "client that

pending criminal charges may carry a risk of adverse immigration

consequences"; however, if the risk of deportation is clear, "the

duty to give correct advice is equally clear." Ibid. (quoting

Padilla, 559 U.S. at 369).

      Here, the PCR court found that defense counsel's advice on

the immigration consequences of defendant's plea was deficient.

The judge noted that the transcripts of the plea hearing and the

sentencing proceeding indicated that the immigration consequences

of the plea had never been discussed on the record. The judge also

noted that in her testimony at the PCR hearing,                   defendant's

attorney testified that she believed she would have told defendant

he had a "good chance" of deportation.

      The judge found that the advice counsel provided to defendant

was   legally    insufficient    under    Padilla,       because       it   was

"indisputable"    defendant's   guilty    plea    made    him     subject     to

deportation under the Immigration and Nationality Act (INA), 8

U.S.C. §§ 1101 – 1537. The judge's ruling was legally correct

                                     11                                A-2531-16T1
because both aggravated assault and kidnapping are "crime[s] of

violence" under 8 U.S.C.A. § 1101(a)(43)(F), for which a person

unlawfully in the United States could be deported. See United

States v. Remoi, 404 F.3d 789, 795 n.4 (3d Cir. 2005) (noting that

both aggravated assault and kidnapping are "crime[s] of violence"

under federal immigration law).

     The judge found, however, that defendant had not established

the second-prong of the Strickland test for ineffective assistance

of counsel. He failed to establish that but for the deficient

advice, he would not have pled guilty and would have instead

insisted upon going to trial. DiFrisco, 137 N.J. at 457 (citing

Hill, 474 U.S. at 59).

     The judge noted that this was not a case where there is a

presumption   of   prejudice.   Counsel   was   present   when   defendant

entered the plea, counsel did not have any conflicts of interest,

and there were no other manifest aspects of prejudice. The judge

also noted that defendant had been charged under the indictment

with eleven offenses, including first-degree carjacking, first-

degree kidnapping, and first-degree robbery, as well as four

second-degree offenses.

     The judge observed that in considering the consequences of a

plea, "[p]reserving the client's right to remain in the United

States may be more important to the client than any potential jail

                                  12                               A-2531-16T1
sentence." The judge found, however, that "[g]iven the weight of

the indictment and the generous negotiated plea agreement which

included [the] dismissal of nine counts," the judge was not

persuaded that defendant would not have pled, if his attorney had

informed him the plea would result in his deportation.

       The judge noted that defendant's kidnapping charge alone

would have subjected him to a lengthy prison sentence, and under

the plea agreement, defendant only received a five-year sentence

with a NERA period of parole ineligibility. The judge observed

that the State agreed to recommend the minimum sentence permitted

by law for a second-degree offense. Defendant was, in fact,

sentenced in accordance with the plea.

       The judge also observed that the plea form informed defendant

that    he   could    seek   individualized     advice    concerning    the

immigration    consequences     of   his   plea,   and   while   defendant

indicated on the plea form that he wanted to speak with an

immigration attorney, there was no indication that he did so.

Furthermore, defendant indicated that he was satisfied with the

representation of his plea counsel.

       The judge found that there was no reasonable probability that

a   fact-finder      would   have    had   reasonable    doubt   regarding

defendant's guilt. In addition, the judge noted that defendant had

not presented any evidence to support his claims that his attorney:

                                     13                            A-2531-16T1
"cajoled"   him   into   accepting   the   State's   plea   offer   without

informing him of the strengths and weaknesses of the State's case;

failed to investigate the case; did not review the discovery with

him; and failed to file pre-trial motions.

     We are convinced there is sufficient credible evidence in the

record to support the judge's findings of fact. We are also

convinced the record supports the PCR court's legal determination

that defendant failed to establish that he was denied the effective

assistance of counsel with regard to his plea. The record supports

the court's finding that defendant failed to establish both prongs

of the Strickland test for ineffective assistance of counsel.

     We note that the recent decision in Lee v. United States, 137

S. Ct. 1958 (2017), does not require a contrary result. In Lee,

the defendant was charged with possession of ecstasy with intent

to distribute in violation of federal law. Id. at 1963. Lee was

not a United States citizen, but he was living in this country as

a lawful permanent resident. Ibid. Lee's attorney told him that

it was "very risky" to go to trial, and he would receive a lighter

sentence if he pleaded guilty. Ibid.

     Lee repeatedly asked his attorney if he would face deportation

as a result of the criminal proceedings, and his attorney told him

he would not be deported. Ibid. (citing Lee v. United States, 825

F.3d 311, 313 (6th Cir. 2016). Lee accepted the plea offer, and

                                     14                             A-2531-16T1
the court sentenced him to a year and a day in prison. Ibid.

Thereafter,   Lee   learned   that    he   had    pleaded   guilty    to    an

"aggravated   felony"   under   the   INA,       which   subjected   him    to

deportation. Ibid. Lee filed a motion to vacate his conviction and

sentence, alleging he was denied the effective assistance of

counsel. Ibid.

     The Court noted that the Government did not dispute that

counsel had provided Lee with inadequate representation when he

advised him that he would not be deported if he pleaded guilty.

Id. at 1964. The Court determined, however, that Lee had adequately

demonstrated a reasonable probability he would have rejected the

plea if he had known his plea would result in his mandatory

deportation. Id. at 1967.

     The Court noted that there was "no question" that deportation

was the determinative issue in whether Lee would accept the plea

offer, as he had testified. Ibid. Moreover, Lee had asked his

attorney repeatedly whether he faced the risk of deportation, and

Lee and his attorney both had testified that he would have rejected

the plea and gone to trial if Lee knew the deportation consequences

of the plea. Id. at 1967–68.

     In addition, at the plea hearing, the judge told Lee that a

conviction could result in his deportation, and Lee stated that

this would affect his decision on whether to plead guilty or not.

                                 15                                  A-2531-16T1
Id. at 1968. When asked by the judge how this affected his

decision, Lee said he did not understand. Ibid. Lee pleaded guilty

only after his attorney advised him the judge's statement was the

"standard warning." Ibid.

     The Court noted that Lee had lived in the United States for

nearly thirty years, and he had established several businesses in

this country. Ibid. He had strong connections to the United States,

and there was no indication he had any ties to his native country,

South Korea. Ibid. The Court held that under the circumstances,

it was not irrational for Lee to reject the plea offer and proceed

to trial. Ibid.

     If Lee pleaded guilty, he would certainly be deported, whereas

if he went to trial, deportation was almost a certainty. Ibid. The

Court stated:

          If deportation were the "determinative issue"
          for an individual in plea discussions, as it
          was for Lee; if that individual had strong
          connections to this country and no other, as
          did Lee; and if the consequences of taking a
          chance at trial were not markedly harsher than
          pleading, as in this case, that "almost" could
          make all the difference. Balanced against
          holding on to some chance of avoiding
          deportation was a year or two more of prison
          time. . . . Not everyone in Lee's position
          would make the choice to reject the plea. But
          we cannot say it would be irrational to do so.

          [Id. at 1968-69.]



                               16                           A-2531-16T1
     The facts in this case are substantially different from those

in Lee. Here, defendant did not testify that deportation was a

determinative issue on whether he would accept the State's plea

offer, and neither defendant nor his attorney testified that he

would   have   rejected   the   plea    if   he   knew   he   faced   mandatory

deportation. There was no evidence that defendant had strong

connections to this country, and few ties to his native land.

     In addition, the potential consequences of taking a chance

at trial were "markedly harsher" than entering the plea. As the

PCR court found, defendant did not have a viable defense, and he

faced a prison sentence substantially longer than the five years

offered in the plea deal. The record here shows that it would not

have been rational for defendant to reject the State's very

favorable plea offer, proceed to trial, and run the risk of serving

up to thirty years in jail.

        Affirmed.




                                       17                               A-2531-16T1
