                                NOT FOR PUBLICATION WITHOUT THE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-5825-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

EMMANUEL T. NEEWILLY,

          Defendant-Appellant.


                    Submitted November 19, 2019 – Decided December 30, 2019

                    Before Judges Currier and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Indictment Nos. 11-09-
                    2282, 11-12-2977, and 12-08-1847.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Karen A. Lodeserto, Designated Counsel, on
                    the brief).

                    Damon G. Tyner, Atlantic County Prosecutor, attorney
                    for respondent (Nicole Lynn Campellone, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
       Defendant Emmanuel Neewilly appeals from the denial of his post-

conviction relief (PCR) petition. Defendant contends the ineffective assistance

of three different lawyers, who represented him on three indictments, caused

him to plead guilty without knowledge of deportation consequences.1 He asserts

an evidentiary hearing was required to hear the testimony of the lawyers and

consider the "substance of their legal advice." Because we find defendant has

not demonstrated a prima facie showing of ineffective counsel, we affirm.

       Defendant pled guilty under Atlantic County Indictment 11-09-2282 to

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). On the

same day, he pled guilty under Atlantic County Indictment 11-12-2977 to third-

degree receiving stolen property, N.J.S.A. 2C:20-7.       Prior to sentencing,

defendant was charged in a third indictment, and he pled guilty to second-degree

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

       On the plea forms executed prior to the guilty pleas on the first two

indictments, defendant acknowledged he was not a citizen of the United States

and that he understood a guilty plea could result in his removal from this

country. Defendant advised on the forms he was aware he could consult with

an attorney about his immigration status. He indicated he had in fact discussed



1
    Defendant has been deported to Liberia.
                                                                        A-5825-17T4
                                        2
the immigration consequences of a guilty plea with his plea counsel. On the

forms, defendant declined the opportunity to consult with counsel further about

the immigration issues and indicated he wished to plead guilty.

      At the plea hearing on the first two indictments in February 2012,

defendant was represented by separate counsel on each indictment. One of the

attorneys stated to the court:

            The only other issue [is] that he is not a U.S. Citizen.
            He is a permanent resident. He understands that by
            virtue of this plea he may be deported. He has
            consulted and/or will further consult with immigration
            attorneys. He does not wish to stop and do that. He
            wishes to proceed today.

      Defendant agreed verbally that he understood what his attorney had

communicated to the court, he agreed with it, and he wished to proceed. The

second attorney then told the court that he was referring defendant to a "good

immigration attorney" which was why they were requesting a three-month delay

for the sentencing hearing.

      During the plea colloquy with the court, defendant reaffirmed he

understood he could seek the services of an immigration lawyer prior to his

guilty plea and he intended to speak to counsel but he wanted to proceed with




                                                                       A-5825-17T4
                                       3
the plea hearing. After accepting the plea, the court scheduled the sentencing

hearing for May 18, 2012.2

       A third attorney represented defendant at the October 22, 2012 plea

hearing regarding the third indictment. During the colloquy, defendant again

acquiesced that he understood a guilty plea could result in his deportation, and

that he could seek specialized immigration advice. He told the court he had

discussed the immigration consequences with his attorney, and he wished to

enter a guilty plea.

       Defendant was sentenced under Indictment 11-09-2282 to five years in

state prison, with a three-year period of parole ineligibility. The sentences on

the other two indictments ran concurrently with the first-imposed prison term.

       After defendant filed his PCR petition and certification, counsel was

assigned, who provided a supplemental brief and certification. Following oral

argument, Judge Jeffrey J. Waldman issued a comprehensive written opinion

and order denying the petition.

       In considering defendant's arguments, Judge Waldman reviewed the plea

forms signed by defendant and the plea hearing transcripts. He found that

defendant had not provided any evidence to support his contention that his



2
    The sentencing took place on June 15, 2012.
                                                                        A-5825-17T4
                                       4
counsel were ineffective for failing to inform him of the immigration

consequences of his plea.       To the contrary, the judge noted defendant's

allegations were "contradicted by the record of the plea hearing, where he

indicated that he understood his right to seek advice from an immigration

attorney about the effects of his guilty plea."

      Judge Waldman stated further:

             A clear escape-valve was provided to the defendant
             here. It was contemplated that he [would] speak with
             immigration counsel between the plea and sentence,
             and he was given an extended period of time to do so.
             Not only does it appear that he did not avail himself of
             that opportunity, but he obtained additional charges
             during that time, for which he ultimately pled guilty.

The judge concluded defendant had not established a prima facie case of

ineffective assistance of counsel and, therefore, an evidentiary hearing was not

warranted.

      On appeal, defendant presents a single argument for our review:

             POINT ONE

             THIS MATTER SHOULD BE REVERSED AND
             REMANDED TO THE PCR COURT FOR AN
             EVIDENTIARY HEARING AS TESTIMONY IS
             NEEDED FROM ALL THREE LAWYERS TO
             DETERMINE WHY THEY FAILED TO REQUEST
             AN ADJOURNMENT FOR THEIR CLIENT TO
             SPEAK WITH AN IMMIGRATION LAWYER PRIOR
             TO PLEADING GUILTY AND TO DETERMINE


                                                                        A-5825-17T4
                                         5
            THE SUBSTANCE OF THEIR ADVICE TO THEIR
            CLIENT REGARDING DEPORTATION.

      The standard for determining whether counsel's performance was

ineffective for purposes of the Sixth Amendment to the United States

Constitution was formulated in Strickland v. Washington, 466 U.S. 668 (1984),

and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). To

prevail on an ineffective assistance of counsel claim, defendant must meet the

two-prong test establishing both that: (l) counsel's performance was deficient

and he or she made errors that were so egregious that counsel was not

functioning effectively as guaranteed by the Sixth Amendment; and (2) the

defect in performance prejudiced defendant's rights to a fair trial such that there

exists a "reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Strickland, 466 U.S. at

687, 694.

      We are satisfied from our review of the record that defendant failed to

demonstrate the ineffectiveness of trial counsel under the Strickland-Fritz test.

It is now well-established that trial counsel must inform a non-citizen client

when a plea carries a risk of deportation. Padilla v. Kentucky, 559 U.S. 356,

364 (2010); State v. Nunez-Valdez, 200 N.J. 129, 131 (2009); State v. Gaitan,




                                                                           A-5825-17T4
                                        6
209 N.J. 339, 380 (2012) (applying Padilla prospectively).         All three plea

counsel here informed defendant that his plea carried the risk of deportation.

      Prior to both plea hearings, defendant completed forms affirming his

understanding that a guilty plea could result in his deportation, and that he had

the right to consult with an immigration attorney. Defendant acknowledged on

the forms that plea counsel discussed the immigration consequences with him.

During the colloquy in February 2012, both defense counsel advised the court

they had discussed the immigration situation with defendant. One stated he had

referred defendant to a specific attorney for immigration counsel and advice.

The attorneys requested a May sentencing date to give defendant adequate time

to consult with immigration counsel. The State and court agreed; the sentencing

did not take place until mid-June 2012.

      Prior to the June sentencing, defendant was indicted on a new charge. He,

again, completed plea forms and acknowledged during the plea hearing that he

understood the immigration consequences of a guilty plea and his right to seek

specialized immigration counsel.

      The record belies defendant's argument that his counsel were deficient in

any respect. Because defendant has not demonstrated a prima facie case of

ineffective representation, he is not entitled to an evidentiary hearing.

      Affirmed.
                                                                            A-5825-17T4
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