                                NOT FOR PUBLICATION WITHOUT THE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-0097-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROBERT H. RAMGEET, a/k/a
CHARLES D. DAVIS, and
ROBERT H. RAMJEET,

     Defendant-Appellant.
_____________________________

                    Submitted January 28, 2020 – Decided February 7, 2020

                    Before Judges Fisher and Gilson.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 04-08-0958.

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

                    Lyndsay V. Ruotolo, Union County Acting Prosecutor,
                    attorney for respondent (Michele C. Buckley, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).
PER CURIAM

      Defendant, a Jamaican citizen, was indicted and charged in 2004 with

various offenses. In 2006, pursuant to a negotiated plea agreement, defendant

pleaded guilty to second-degree conspiracy to commit kidnapping, N.J.S.A.

2C:5-2(a)(2), and first-degree carjacking, N.J.S.A. 2C:15-2. He was sentenced,

on April 13, 2007, to an aggregate twelve-year prison term with an eighty-five

percent period of parole ineligibility. Defendant did not file a direct appeal.

      Instead, in May 2016, more than nine years after sentencing, defendant

filed a post-conviction relief (PCR) petition, arguing his trial attorney

misadvised him about the deportation consequences of the guilty plea. Without

conducting an evidentiary hearing, the PCR judge denied relief, finding the PCR

petition was both time-barred and without merit.

      Defendant appeals, arguing in three points that he was "entitled to an

evidentiary hearing," that his guilty plea was defective because the deportation

consequences were not adequately explained, and that the PCR judge erred by

finding the PCR petition untimely.          We find insufficient merit in these

arguments to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

We add only the following comments.




                                                                          A-0097-18T2
                                        2
      In his PCR petition, defendant asserted that: he was not a United States

citizen; he told this to his trial attorney; he asked his attorney about the

deportation consequences of a guilty plea; his attorney never gave him "any

straight answers"; and the attorney said defendant "would be able to fight that

afterwards in immigration court." Defendant also claimed that he learned after

his release from prison that his crimes were aggravated felonies and that

deportation was "mandatory." Defendant asserts that had he known this in 2006,

he would not have pleaded guilty, but he has not asserted that he did not commit

the crimes to which he admitted when he pleaded guilty.

      In 2006, when defendant pleaded guilty, applicable professional norms

did not require that attorneys representing non-citizen criminal defendants give

immigration advice, but, if they did, they could not give "wrong advice" or "false

or misleading information" about the possibility of deportation. See State v.

Gaitan, 209 N.J. 339, 373 (2012). The professional norm recognized by our

Supreme Court in State v. Nuñez-Valdez, 200 N.J. 129 (2009), required that

attorneys not give "wrong advice, followed by inaccurate and misleading

information on immigration consequence[s]." Gaitan, 209 N.J. at 373. A year

after Nuñez-Valdez, and four years after defendant's guilty plea, the Supreme

Court of the United States determined that "correct" advice must be given when,


                                                                          A-0097-18T2
                                        3
as here, the risk of deportation is "truly clear." Padilla v. Kentucky, 559 U.S.

356, 369 (2010). Padilla was later determined to be a new rule that would be

given prospective effect only, thereby depriving non-citizen defendants – like

defendant here – of Padilla's holding if their "convictions became final prior to

Padilla." Chaidez v. United States, 568 U.S. 342, 358 (2013).

      Cognizant of his Sixth Amendment right to the effective assistance of

counsel as that right existed prior to Padilla – requiring proof of mis-advice –

defendant asserted in his PCR petition and its subsequent amendment that his

attorney told him deportation was something that could be argued about in

immigration court after his release from prison. Even assuming that advice was

incorrect, or false and misleading, the record reveals that the plea judge clarified

any mistaken information conveyed by counsel; the judge expressed to

defendant that deportation would result because defendant was pleading guilty

to an aggravated felony:

            Q. And you are not a citizen of the United States,
            correct?

            A. Correct, sir.

            Q. You understand that by pleading guilty to this
            charge, that it could affect your continued residence in
            this country, correct?

            A. Yes.

                                                                            A-0097-18T2
                                         4
            Q. As a matter of fact is it true that the Immigration
            and Naturalization Service has already filed a detainer
            against you as an aggravated felon?

            A. They might have.

            Q. They might have?

            A. They might have. Yeah.

            Q. And you understand that if that is determined to be
            so, you will be deported from this country, but it would
            be after the service of any custodial sentence that was
            imposed upon you?

            A. Yes, Your Honor.

            [Emphasis added.]

In short, what defendant claims his attorney did not tell him was clearly told to

him by the judge. 1 In such an instance, the PCR judge was not obligated to

conduct an evidentiary hearing because there can be no dispute that defendant

acknowledged in 2006 what he now self-servingly claims he did not then know.

      Moreover, defendant's acknowledgement of what the plea judge advised

him in 2006 negates his argument that his failure to file his PCR petition should

be excused because it was not filed within five years of the entry of the 2007



1
   In the plea form defendant signed in 2006, he acknowledged he was not a
United States citizen, and he expressed his understanding that a guilty plea could
lead to his deportation.
                                                                          A-0097-18T2
                                        5
judgment of conviction, as required by Rule 3:22-12(a)(1). The only excuse

defendant offered was his demonstrably inaccurate claim that he was unaware

until 2016 that his guilty plea would lead to his deportation. In light of this

circumstance, the judge correctly found the PCR petition to be time-barred. See

State v. Brewster, 429 N.J. Super. 387, 398-99 (App. Div. 2013).

      Affirmed.




                                                                       A-0097-18T2
                                      6
