                                NOT FOR PUBLICATION WITHOUT THE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-0873-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROGER D. COLEY,

     Defendant-Appellant.
___________________________

                   Submitted April 29, 2020 – Decided June 23, 2020

                   Before Judges Whipple and Gooden Brown.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment Nos. 10-10-1092
                   and 13-07-0726.

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

                   Camelia M. Valdes, Passaic County Prosecutor,
                   attorney for respondent (Christopher W. Hsieh, Chief
                   Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Roger Coley appeals from the August 22, 2018 order denying

his petition for post-conviction relief (PCR) after an evidentiary hearing. We

previously set forth the facts in defendant's first PCR appeal in State v. Coley,

No. A-0905-16 (App. Div. April 11, 2018), where we remanded for an

evidentiary hearing to determine whether defense counsel provided false or

misleading advice as to the impact defendant's United States born children

would have on the likelihood of deportation and if so, whether the information

caused defendant to plead guilty. After a review of the arguments in light of the

record and applicable principles of law, we affirm.

      On August 22, 2018, the parties appeared before the court for the remand

hearing. Defendant, represented by counsel in the courtroom, appeared by way

of an audiovisual phone call. Defendant's plea counsel, William Rohr , testified

that although he had no independent recollection of defendant's case, he

reviewed some notes he retained. Rohr's notes reflected he knew defendant was

a U.S. resident from Jamaica who came on a six-month work permit, overstayed

his visa and had an immigration detainer against him. Rohr testified it was his

understanding that defendant was going to be deported for overstaying his visa.

Rohr also testified the transcript of defendant's plea hearing reflected he




                                                                         A-0873-18T1
                                       2
discussed with defendant that he would be deported after completion of his

prison sentence. Under questioning from the court, Rohr stated:

             I mean, taking into consideration the fact that my . . .
             perception at the time was he was going to get deported
             because he was undocumented. If you add to that the
             fact that he's now pleading guilty to three charges, that's
             going to enhance the potential for documentation. And
             I think I'd have to have some insight into immigration
             law in order to counteract and say regardless of the fact
             that . . . the immigration authority . . . has a detainer
             . . . against you and apparently want to deport you, that
             you should disregard that because there's always a
             potential that you may not be deported. That's not the
             kind of conversation I would have had with him. I
             would have had to have some sophistication in
             immigration law to think of something like that.

             THE COURT: So you never told him that he would not
             be deported?

             THE WITNESS: I . . . don't have any recollection of
             conversations with him. I'm just looking at the
             transcript here what I said and . . . I would have done
             knowing me.

      Defendant testified that Rohr only told him deportation was a possibility,

not that it was mandatory and that the criminal and immigration proceedings

were "separate and apart."       Defendant also testified that had he known

deportation was mandatory, he would not have pled guilty but would have

insisted on a trial.



                                                                           A-0873-18T1
                                         3
      In an oral decision, delivered immediately after the hearing, the PCR court

denied defendant's petition, finding defendant was advised he would be deported

as a result of his guilty plea. Although the PCR court acknowledged that Rohr

had no independent recollection of the case, and credited Rohr's testimony that

he would not have told defendant that he would not be deported because of

several factors in the case, Rohr highlighted the fact that defendant overstayed

his immigration visa, had an immigration detainer placed upon him for

deportation, and defendant's controlled dangerous substance (CDS) and CDS

gun charges required deportation.

      The Court also addressed whether Rohr provided false or misleading

advice as to the impact defendant's children would have on the likelihood of

deportation. The PCR court stated:

                   Then we go into the area . . . of his children. And
            I believe that's what the Appellate Division is
            concerned about. Did Mr. Rohr ever say to the
            defendant, well, you have two children, maybe because
            of these children the [Immigration and Customs
            Enforcement] people or the Immigration Judge will
            take that into . . . account and not deport you. This is,
            I believe, what the Appellate Division wants to find out.

                  That would be misadvice if Mr. Rohr did that.
            But Mr. Rohr doesn't recall.          But when I was
            questioning Mr. Coley, when that topic came up, Mr.
            Rohr said, I can't do anything about it. See that explains
            the dichotomy why you have the separation. The

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                                        4
            separation is in terms of, yes, you're going to be
            deported and there's nothing we can do about it. If
            there's something that possibly can happen with the
            children, that's a whole different area I guess of
            immigration law. That's how I view this.

                  But, again, the Appellate Division is looking for
            misadvice. And to [use] Mr. Coley's own words, when
            it came to the impact of the two children, could that
            possibly be some type of means of avoiding
            deportation, Rohr said, no. I can't do anything about it.
            When Mr. Rohr was testifying as to collateral . . .
            consequences, in his mind he was saying that as far as
            he was concerned as an attorney, an attorney's job is not
            to give misadvice. I did not give misadvice.

                   And with respect to the question of, well, did you
            maybe tell him with the children, that would possibly
            change the picture? That's simply not in the case.
            [T]here's nothing for me to believe that Mr. Rohr ever
            told him anything like that. As I said before, Mr. Coley
            said, Mr. Rohr told me there's nothing I can do about.

                  So, again, I do not see misadvice here. And I'm
            going to again deny the defendant's application.

     The court entered an order denying defendant's PCR petition. This appeal

followed.

     On appeal defendant argues:

            POINT I: THE PCR COURT ERRED IN DENYING
            DEFENDANT'S PETITION FOR [PCR] BECAUSE
            DEFENDANT ESTABLISHED PLEA COUNSEL
            MISADVISED HIM REGARDING HOW HIS
            UNITED STATES BORN CHILDREN WOULD


                                                                        A-0873-18T1
                                       5
            IMPACT THE IMMIGRATION CONSEQUENCES
            OF HIS GUILTY PLEA.

      "[PCR] is New Jersey's analogue to the federal writ of habeas corpus,"

State v. Preciose, 129 N.J. 451, 459 (1991), affording an adjudged criminal

defendant a "last chance to challenge the 'fairness and reliability of a criminal

verdict . . . .'" State v. Nash, 212 N.J. 518, 540 (2013) (citation omitted). A

defendant must establish the right to PCR by a preponderance of the credible

evidence.   Preciose, 129 N.J. at 459.       In order to satisfy this burden, the

defendant "must do more than make bald assertions that he [or she] was denied

the effective assistance of counsel. He [or she] must allege facts sufficient to

demonstrate counsel's alleged substandard performance." State v. Cummings,

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

      "The Sixth Amendment of the United States Constitution and the New

Jersey Constitution guarantee criminal defendant's the right to counsel, which

right requires that defendants receive the 'effective assistance of counsel.'" State

v. Gaitan, 209 N.J. 339, 349 (2012) (citing Strickland v. Washington, 466 U.S.

668, 686 (1984)). To establish a claim for ineffective assistance, a defendant

must satisfy a two-pronged 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

                                                                            A-0873-18T1
                                         6
            functioning as the "counsel" guaranteed the defendant
            by the Sixth Amendment. Second, the defendant must
            show that the deficient performance prejudiced the
            defense. This requires showing that counsel's errors
            were so serious as to deprive the defendant of a fair
            trial, a trial whose result is reliable. Unless a defendant
            makes both showings, it cannot be said that the
            conviction or death sentence resulted from a breakdown
            in the adversary process that renders the result
            unreliable.

            [Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42,
            58 (1987) (adopting the standard in Strickland).]

      In applying this test, "[a]ttorneys are held to a standard of 'reasonableness

under prevailing professional norms.'"        Gaitan 209 N.J. at 350 (quoting

Strickland, 466 U.S. at 688). The attorney's performance is analyzed as of the

time of the attorney's conduct. Ibid. In the context of illustrating prejudice after

a guilty plea, a defendant must demonstrate "there is a reasonable probability

that but for counsel's errors, [he or she] would not have plead guilty and would

have insisted on going to trial." Id. at 351 (alteration in original) (quoting State

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

      When a PCR court has taken the opportunity to make "factual findings

based on its review of live witness testimony," we defer to the "court's findings

that are supported by sufficient credible evidence in the record." Nash, 212 N.J.




                                                                            A-0873-18T1
                                         7
at 540 (citation omitted). However, we afford no deference to the court's legal

conclusions, which we review de novo. Id. at 540-41.

      When considering the plea agreements of non-citizen defendants, our

courts have found ineffective assistance where plea counsel provided false or

misleading information concerning the immigration consequences of a guilty

plea, and the defendant would not have pled guilty had he or she been adequately

informed. Nunez-Valdez, 200 N.J. at 138, 141-43. The United States Supreme

Court, in Padilla v. Kentucky, 559 U.S. 356, 367-69 (2010), held that a

constitutionally responsible attorney must inform his or her clients whether their

plea carries a risk of deportation.     Padilla created a "two-tiered analytical

structure for assessing the duty of effective assistance [which] . . . distinguished

cases where it is clear that deportation is certain, from cases where the

immigration consequences of a plea are less clear . . . ." Gaitan, 209 N.J. at 356.

      In situations where the deportation consequences are not straight forward,

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

criminal charges may carry a risk of adverse immigration consequences."

Padilla, 559 U.S. at 369.     However, a counsel's "failure to point out to a

noncitizen client that he or she is pleading to a mandatorily removable offense




                                                                            A-0873-18T1
                                         8
[constitutes] deficient performance of counsel." State v. Blake, 444 N.J. Super.

285, 300 (App. Div. 2016) (emphasis omitted) (quoting Gaitan, 209 N.J. at 380).

      Turning to the first prong of Strickland, the PCR court found defendant's

plea counsel did not render deficient performance. Rohr was unable to recall

the specific conversations he had with defendant and could only testify based on

his notes and statements in the record and his assertion of what he would have

done under the circumstances.        Nonetheless, the PCR court found him

"extremely credible." Upon review of the record, there is no basis to disturb the

credibility finding of the PCR judge.

      The PCR judge relied on substantial credible evidence in determining that

Rohr did not provide false or misleading advice as to the impact defendant's U.S.

born children would have on the likelihood of deportation.         The credible

evidence in the record included the fact that Rohr informed defendant on

numerous occasions that he would be deported as a result of his guilty plea, and

defendant insisted on going forward with the plea after the court offered to

adjourn so defendant could confer with an immigration attorney. Moreover,

although Rohr was unable to recall prior conversations with defendant, the PCR

court found credible his testimony he would not have told defendant he may not

be deported because defendant overstayed his immigration visa, had an


                                                                         A-0873-18T1
                                        9
immigration detainer for overstaying a visa, and his charges required

deportation. Although defendant testified to the contrary, we defer to the PCR

judge's determination that plea counsel's testimony was credible and defendant

was not.     Nash, 212 N.J. at 540 ("Our standard of review is necessarily

deferential to a PCR court's factual findings . . . . [W]e will uphold the PCR

court's findings that are supported by sufficient credible evidence in the

record.").

      Affirmed.




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