                                NOT FOR PUBLICATION WITHOUT THE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-5605-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ADRIAN JARRETT,

     Defendant-Appellant.
_________________________

                    Submitted January 15, 2019 – Decided May 8, 2019

                    Before Judges Rothstadt and Gilson.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 95-09-
                    0303.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Suzannah Brown, Designated Counsel, on
                    the brief).

                    Andrew C. Carey, Middlesex County Prosecutor,
                    attorney for respondent (Susan L. Berkow, Special
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
        In an earlier unpublished opinion, we vacated a trial court's denial of

defendant Adrian Jarrett's petition for post-conviction relief (PCR) after an

evidentiary hearing and remanded for a new hearing. See State v. Jarrett, No.

A-4044-12 (App. Div. June 16, 2015) (slip op. at 16). After conducting a second

hearing in accordance with our remand, the PCR court1 again denied defendant's

petition for PCR and defendant appealed. We now affirm.

        As discussed in our earlier opinion, defendant, "a Jamaican citizen and a

legal permanent resident of the United States, pleaded guilty [in 1993] to one

count of distribution of a controlled dangerous substance, N.J.S.A. 2C:35-

5(b)(3)." Id. at 2. In accordance with his plea agreement, the court sentenced

him to probation.2

        In his PCR petition, defendant claimed that plea counsel failed to properly

advise him about the deportation consequences of his plea. Id. at 3. After

conducting an evidentiary hearing, the first PCR court concluded that defendant

satisfied the first prong under Strickland v. Washington, 466 U.S. 668, 687, 694



1
    A different judge presided at the second hearing.
2
  Defendant later pled guilty to a new offense and a corresponding violation of
probation that led him to be sentenced to four years in prison.



                                                                           A-5605-16T4
                                         2
(1984), "because counsel twice circled 'N/A' as to question seventeen on the plea

forms,"3 when he should have known from "presentence reports . . . that

defendant was a Jamaican citizen." Id. at 4-5. However, as we described, the

PCR court concluded that defendant did not prove prejudice under Strickland's

second prong because defendant "was concerned about the sentence he would

be exposed to in the event that he went to trial and was convicted. . . . He was

not concerned with the probability or the possibility of deportation." Id. at 12.

After his first evidentiary hearing, defendant was deported to Jamaica. Id. at 5.

Nevertheless, defendant appealed the denial of PCR.

      In response to defendant's appeal, we disagreed with the first PCR court's

determination because we concluded that its "factual finding that defendant was

not concerned about his immigration status [was] not supported by the

record . . . ." Id. at 13. Quoting from the United States Supreme Court's opinion

in Padilla v. Kentucky, 559 U.S. 356 (2010), "we vacate[d] the order denying

defendant's petition for [PCR] and remand[ed] the case to the trial court for an

evidentiary hearing to determine if defendant can 'convince the court that a




3
  Question seventeen asked: "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?"
                                                                          A-5605-16T4
                                        3
decision to reject the plea bargain would have been rational under the

circumstances.'" Id. at 16 (quoting Padilla, 559 U.S. at 372).

      Judge Lorraine Pullen presided over the remand hearing at which

defendant was the only witness. Defendant, who was approximately thirty-two-

years-old at the time, testified that up until his deportation, he had lived in the

United States since he was about eleven-years-old and resided with his parents

and siblings. Defendant stated that he viewed the United States as his and his

family's home. According to defendant, he only travelled to Jamaica once when

he was twelve-years-old. Although he had family members who lived there,

defendant had virtually no communications with them.

      Addressing his 1993 offense, when he was eighteen-years-old, defendant

stated that he was innocent of the charge. Further, if his plea counsel had

properly advised him about being deported as a result of his plea, he would not

have pled guilty and instead would have risked going to trial and being

sentenced to prison.

      After considering the record and defendant's testimony, Judge Pullen

denied defendant's petition. She set forth her findings and explained the reasons

for denying the petition a second time in a fourteen-page written decision that

accompanied her June 30, 2017 order. Citing to our opinion in State v. Maldon,


                                                                           A-5605-16T4
                                        4
442 N.J. Super. 475, 486 (App. Div. 2011) and the United States Supreme

Court's opinion in Hill v. Lockhart, 474 U.S. 52, 59 (1985), the judge observed

that in order for defendant to prove that he suffered any prejudice under

Strickland's second prong, he had to

            establish[] by a preponderance of the evidence that it
            would have been reasonable not to take the [p]lea and
            instead go to trial, and that he would have done so. . . .
            [which] turn[ed] on whether the outcome of the
            proceeding would have likely been more favorable than
            the terms of the plea deal.

      The judge then found that defendant's plea was "voluntary, knowing and

intelligent" and turned to the issue of prejudice. In her determination of whether

defendant was prejudiced by counsel's misinformation, the judge compared the

facts of this case to those in State v. McQuaid, 147 N.J. 464 (1997), and

concluded they were similar. As she explained, in McQuaid, a defendant's PCR

petition was rejected because he could not establish a "manifest injustice" where

he pled guilty to a crime for which he was facing life in prison with a sixty-year

period of parole ineligibility, but only was sentenced under his plea to forty

years with a thirty-year parole disqualifier. Judge Pullen compared those facts

to defendant's circumstances and stated the following about the strength of the

evidence against defendant and the benefit he received from his plea agreement:



                                                                          A-5605-16T4
                                        5
            Much like the defendant in McQuaid, Petitioner here
            also obtained significant benefits from his plea bargain.
            Like McQuaid, the State's evidence against Petitioner
            was substantial, and would have included statements
            from officers from the [county] Narcotics Task force
            who observed Petitioner selling cocaine, the seized
            cocaine, and Petitioner's voluntary statement to police
            that he was selling cocaine. Further like McQuaid,
            Petitioner's potential exposure for a conviction of two
            counts of possession of cocaine with intent to distribute
            and one count of possession of cocaine have resulted in
            harsher penal exposure than what was provided per the
            terms of the plea.       Thus, despite the attorney's
            misinformation, the 1993 case resolved in Petitioner's
            favor as he received a substantial benefit as a result of
            his plea bargain.

      In further support of her determination that under the circumstances it

would not have been reasonable for defendant to have rejected his plea offer,

the judge concluded that there was no evidence that a "manifest injustice" would

occur if defendant's plea was not vacated. She considered the evidence adduced

at the remand hearing and applied it to the factors delineated in State v. Slater,

198 N.J. 145, 157-58 (2009), finding no basis to vacate defendant's plea. Judge

Pullen specifically observed that defendant made no "colorable claim of

innocence" at the hearing other than an unsupported "bare assertion" that he was

innocent. She found that his testimony about his innocence was not credible in

light of the record. The record established that after his arrest, defendant



                                                                          A-5605-16T4
                                        6
admitted to police that he committed the charged offense and there was no

dispute that he provided a factual basis in support of his plea while under oath.

      Addressing the strength of defendant's reason for wanting to withdraw his

plea, the judge found defendant incredible in his assertions that he would have

rejected the plea offer had he known he could be deported, especially in light of

the weight of the evidence against him that exposed him to a "high" chance of

incarceration as compared to the probation he received under the plea

agreement.    The court also found that the plea agreement was "mutually

beneficial" to defendant and the State and that the State would be greatly

prejudiced by vacating the plea and going to trial based upon the extreme age of

the case. This appeal followed.

      On appeal, defendant argues the following:

             POINT I

             THE LOWER COURT ERRED IN DENYING
             [DEFENDANT'S] PETITION FOR [PCR].

      In support of his argument, defendant explains that Judge Pullen's findings

"were so contrary to the evidence in the record that appellate intervention is

necessitated." He claims that she again concluded that defendant was only

"concerned with penal consequences" and not with the possibility of deportation

and its impact on him and his family. He also contends that the judge went

                                                                          A-5605-16T4
                                        7
beyond the scope of our remand because she analyzed his petition under Slater

in determining whether the enforcement of his plea was a "manifest injustice."

      Our Supreme Court has established the standard of our review in PCR

cases where the PCR court held an evidentiary hearing:

            In reviewing a PCR court's factual findings based on
            live testimony, an appellate court applies a deferential
            standard; it "will uphold the PCR court's findings that
            are supported by sufficient credible evidence in the
            record." Indeed, "[a]n appellate court's reading of a
            cold record is a pale substitute for a trial judge's
            assessment of the credibility of a witness he has
            observed firsthand."       However, a "PCR court's
            interpretation of the law" is afforded no deference, and
            is "reviewed de novo." "[F]or mixed questions of law
            and fact, [an appellate court] give[s] deference . . . to
            the supported factual findings of the trial court, but
            review[s] de novo the lower court's application of any
            legal rules to such factual findings."

            [State v. Pierre, 223 N.J. 560, 576-77 (2015) (first,
            second, fourth, and fifth alterations in original)
            (citations omitted).]

      Applying that standard, we conclude that defendant's argument is without

merit. We affirm substantially for the reason expressed by Judge Pullen in her

comprehensive written decision. We add only the following comments.

      In Lee v. United States, 137 S. Ct. 1958 (2017) the Supreme Court stated

that in considering a claim of prejudice under Strickland's second prong,

"[c]ourts should not upset a plea solely because of post hoc assertions from a

                                                                        A-5605-16T4
                                       8
defendant about how he would have pleaded but for his attorney's deficiencies.

Judges should instead look to contemporaneous evidence to substantiate a

defendant's expressed preferences." Lee, 137 S. Ct. at 1967. The Court also

explained that

            common sense (not to mention our precedent)
            recognizes that there is more to consider than simply
            the likelihood of success at trial. The decision whether
            to plead guilty also involves assessing the respective
            consequences of a conviction after trial and by plea. . . .
            When those consequences are, from the defendant’s
            perspective, similarly dire, even the smallest chance of
            success at trial may look attractive.

            [Id. at 1966 (citation omitted).]

      The evidence presented by defendant at the remand hearing failed to

satisfy his burden by establishing that he was confronted at the time with

"similarly dire" consequences. At the hearing, other than defendant's bald

assertions, there was no evidence of any defenses that defendant could have

raised in 1993 to the facts that led to his arrest and charge. Moreover, the

potential consequences of taking a chance at trial were "markedly harsher" than

entering the plea. Id. at 1969. Without evidence of a viable defense, defendant

faced a prison sentence of at least five years with a mandatory period of parole

ineligibility as compared to the plea offer's recommendation for non-custodial

probation. The record demonstrated that it would not have been rational for

                                                                          A-5605-16T4
                                        9
defendant to reject the State's very favorable plea offer, proceed to trial, and run

the risk of serving several years in prison.

      Affirmed.




                                                                            A-5605-16T4
                                        10
