### RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO S . A

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A

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- 18T4 STATE OF NEW JERSEY, Plaintiff

- Respon dent,

v. GEORGE K. ASANTE, Defendant

- Appellant.
Submitted November 19, 2019

– Decided Before Judges Fisher and Rose. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 14

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- 0268 and Atlantic Cou nty, Indictment No. 1 6

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. Joseph E. Krakora, Public Defender, attorney for appellant (Janet Anne Allegro, Designated Counsel, of counsel and on the briefs). Gurbir S. Grewal, At torney General, attorney for respondent (Lauren Bonfiglio, Deputy Attor ney General, of counsel and on the brief s ). PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIV ISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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December 11, 20192 A

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In these appeals, calendared back

- to

- back and consolidated for purposes of our opinion, defendant George K. Asante seeks reversal of two Law Division orders, denying his petitions for post

- conviction relief (PCR) without an evidentiary hearing. Born in Ghana, defendant immigrated to the United States in 1996. At the time of his guilty pleas, which were entered sixteen months apart in two different vicinages, defendant stated he was a United States ci tizen. But, after entry of the second guilty plea, defendant was detained by U.S. Immigration and Customs Enforcement. Prior to his deportation in 2018, defendant sought PCR from both convictions, claiming his plea attorneys should have ascertained his s tatus in this country, despite defendant's sworn statements that he was a United States citizen. We reject defendant's arguments and affirm both orders under review.
I.
We commence ou r review with a discussion of the relevant legal principles, which are c ommon to both appeals. Where, as here, the trial court does not conduct an evidentiary hearing on a PCR petition, we may review de novo the factual inferences the court has drawn from the documentary record. State v. O'Donnell , 435 N.J. Super. 351, 373 ( A pp. Div. 2014). We also review de novo the court's conclusions of law. State v. Harris , 181 N.J. 391, 420 (2004).3 A

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When petitioning for PCR, the defendant must establish, by a prepond erance of the credible evidence, entitlement to the requested relief. S tate v. Preciose , 129 N.J. 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which t o rest its decision." State v. Mitchell , 126 N.J. 565, 579 (1992)

. The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings , 321 N.J. Super. 154, 170 (App. Div. 1999). To establish a prima f acie claim of ineffective assistance of counsel, the defendant must dem ons trate a reasonable likelihood of success under the test set forth in Strickland v. Washington , 466 U.S. 668 (1984). That is, the defendant must show : (1) the deficiency of his coun sel's performance; and (2) prejudice to his defense. Id. at 687; see a lso State v. Fritz , 105 N.J. 42, 58 (1987) (adopting the Strickland two

- pronged analysis in New Jersey) ( Strickland/Fritz test). "[I]n order to establish a prima facie claim, [the defe ndant] must do more than make bald assertions that he was denied the ef fec tive assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." Cummings , 321 N.J. Super. at 170.4 A

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Under the first prong, th e defendant must demonstrate that "counsel made errors so serious that couns el was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland , 466 U.S. at 687. Under the second prong, the defendant must show "that couns el's errors were so serious as to deprive the defendant of a fair trial , a t rial whose result is reliable." Ibid. That is, "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been diff erent." Id. at 6 94. In the context of a guilty plea, our Supreme Cour t has long recognized the defendant must demonstrate "but for counsel's errors, [he ] would not have pled guilty and would have insisted on going to trial." State v. Nunez

- Valez , 200 N.J. 129, 139 (2009) (citation omitted). It is now well

- settled that a defense attorney "must tell a client when removal is mandatory

– when consequences are certain" in order to provide effective assistance of counsel. State v. Gaitan , 209 N.J. 339, 380 (2012). Accordingly, "w hen counsel provi des false or affirmatively mis leading advice about the deportation consequences of a guilty plea, and the defendant demonstrates that he would not have pled guilty if he had been provided with accurate information, an ineffective assistance of counsel clai m has been established." Id. at 351.5 A

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Our courts have not, however, imposed on counsel an obligation to advise about the potential for removal when the defendant expressly indicates under oath that he is a citizen. We consider both appeals in view of th ese standards.

II. The Cumb erland Coun ty Appeal (A

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- 17) Defendant was charged in a two

- count Cumberland County indictment with first

- degree aggravated sexual assault, N.J.S.A. 2C:14

- 2(a)(1), and second

degree endangering the welfare of a child, N.J. S.A. 2C:24

- 4(a), after his gir lfriend rep orted she had observed defendant's "legs thrusting in a motion consistent with sexual intercourse" with his ten

- year - old biological daughter. DNA evidence confirmed the presence of defendant's semen on the child's shirt and underwear. The chil d acknowled ged her father had sexually assaulted her on numerous occasions during the prior three years. In January 2015, defendant pled guilty to amended charges of fourth

degree criminal sexual contact, N.J.S.A. 2C:14

- 3(b) , and third

- degree endangering the welfare of a child, N.J.S.A. 2C:24

- 4(a). Under the terms of a negotiated plea agreement, the State agreed to recommend a probationary sentence; defendant agreed to waive his right to appeal. Defendant completed a written plea form and stated "yes" in response to question 17(a), which asked "Are you a citizen of the United States?" During6 A

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the plea proceeding, defendant confirmed under oath his answers to the questions on the plea form were correct and he "read and underst ood th[e]
document

. . . . " The Uniform Def endant Intake (UDI) form in the ensuing presentence report (PSR) indicated defendant was a United States citizen, who was born in West Africa. During the sentencing hearing, counsel indicated she had reviewed
t he PSR with defendant and they had "no additi ons or corrections

. . . . " Defendant was sentenced to a five

- year probationary term and ordered to register
as a sex offender pursuant to Megan's Law. Defendant filed a timely PCR petition, alleging plea cou nsel was ineffective by provid ing "[m]isinforma tion and not mentioning [i]mmigration consequences pertaining to [the] plea agreement." Assigned counsel filed a brief, noting defendant was deported before he could sign an affidavit in support of his petiti on. During oral argument, PC R counsel provided to the judge a copy of defendant's "rap" sheet, which indicated defendant was not a United States7 A

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citizen. 1 PCR counsel argued plea counsel should have investigated defendant's immigration status based on h is country of birth and the co nflicting informati on concerning his citizenship. PCR counsel further claimed defendant would not have entered his guilty plea had he been advised of the potential immigration
consequences. In a terse oral decision, the PCR judge applied the Strickland/ Fritz test, and concl uded plea counsel's performance was deficient. According to the judge, plea counsel "should have noticed " the rap sheet she received " almost contemporaneous[ly] with the plea " stated " defendant was not a citizen." The judge, however, found defendant fail ed to support counsel's argument that he would have gone to trial especially because he would have been "facing a first [

- ]degree charge and the penalties that come with it

. . . . " On appeal, defendant presents the following point f or our consideration:
THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR [PCR] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING SINCE PLEA COUNSEL WAS INEFFECTIVE FOR NOT INVESTIGATING THE SIMPLE TASK OF CONFIRMING DEFE NDANT WAS NOT A CITIZEN, AS INDICATED IN HIS RAP SHEET, AND D EFENDANT WAS THEREBY PREJUDICED

1 Because defendant had been deport ed, PCR counsel waived his appearance at the hearing. The PCR judge was not the same judge who entered defendant's guilty plea.8 A

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- 17T4 BY PLEADING GUILTY TO A DEPORTABLE OFFENSE [.] We have considered these arguments in light of the record and applicable legal standards. We affirm for reasons oth er than those expressed by the PCR judge

. See State v. Heisl er , 422 N.J. Super. 399, 416 (App. Div. 2011) (recognizing that an appellate court is "free to affirm the trial court's decision on grounds different from those relied upon by the trial court"). We part ways with the PCR judge's concl usion that defendant s atisfied the first prong of the Strickland/Fritz test. Despite defendant's sworn statement in the plea form to the contrary, the judge relied upon a hearsay statement in the uncertified rap sh eet to support his conclusion that plea counsel was ineffectiv e. In doing so, the judge made assumptions that are unsupported by competent evidence in the record. By assuming plea counsel failed to observe defendant's

non - citizenship status on the rap sh eet , the judge impermissibly "fill[ed] i n missing information on [his] own." N.J. Div. Youth & Family Servs. v. A.L. , 213 N.J. 1, 28 (2013). Given defendant's repeated assertions that he was a citizen of the United States

– and counsel's reasonable relia nce on those assertions

– we conclude th e PCR judge erred by f inding defendant satisfied the first Strickland/Fritz prong.9 A

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Because defendant also failed to provide a sworn certification or affidavit supporting his contention that he would have proceeded to trial had he known he was subject to re moval, we agree with t he PCR judge that defendant failed to satisfy the second Strickland/Fritz prong. See Gaitan , 209 N.J. at 375 (recognizing a defendant must support his claim with more than "bald assertions" tha t "he would not have pled had he known o f the deportation

cons equences" of pleading guilty). In sum, at the time of his plea, defendant represented to his attorney and the judge that he was a United States citizen by his answer on the plea form and by te stifying he had answered truthfully. Pl ea counsel (and the judg e) therefore had no reason to advise defendant of the immigration consequences of a guilty plea upon a non

- citizen. "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own state ments or actions. Couns el's actions are usually based, quite properly, . . . on information supplied by the defendant." State v. DiFrisco , 174 N.J. 195, 228 (2002) (citation omitted). "Counsel cannot be faulted for failing to expend time or resources

an alyzing events about whi ch they were never alerted." Ibid. To the extent not addressed, defendant's remaining arguments lack sufficient meri t to warrant discussion in our written opinion. R. 2:11

- 3(e)(2).10 A

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Affirmed.
* * *

III. The Atlantic County Appeal (A

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- 18) In May 2016 , pursuant to a negotiated plea agreement, defendant pled guilty to third

- degree possession with intent to distribute heroin, N.J.S.A. 2C:35

- 5(a)(1) and N.J.S.A. 2C:35

- 5(b)(3) , in Atlantic City. The State agreed to dismiss the rem aining three counts charg ed in the Atlantic County indictment and recommend a probationary sentence. Prior to entering his guilty plea, defendant completed the standard plea form with counsel, initialed each page, and signed the last page of the form. L ike the Cumberland County m atter, in response to question 17(a) defendant responded he was a United States citizen. During the plea hearing, defendant acknowledged under oath that he understood the questions and his answers were truthful. He confirmed hi s citizenship status:

JUDGE : Okay. Sir, are you a citizen of the

United States? DEFENDANT: Yes, Your Honor. JUDGE: And where w ere you born? DEFENDANT: West Africa. JUDGE: You were born in West Africa?11 A

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- 17T4 DEFENDANT: Yes. JUDGE: And you're a nat uralized citizen? DEFENDANT : Yes. JUDGE: Okay. . . [W]hen did you become a

naturalized citizen? DEFENDANT: In 2002. JUDGE: 2002, okay. Sir, have you ever plead

guilty to anything before? DEFENDANT: Yes, Your Honor. JUDGE: Okay. So you underst and generally

what's going o n here today? DEFENDANT: Yes, Your Honor. JUDGE: Okay. And nonetheless, if you have

any que stions, I want you to ask your attorney . . . to alert the Court. We will then in turn try to clarify any confusion that you might h ave. But if not, if you don 't do that, I'm going to presume . . . you understand everything, so are we clear? DEFENDANT: Yes, Your Honor. The UDI annexed to defendant's PSR stated he was born in Ghana, and twice indicated he was a United States citizen. In particular, the PSR sta tes defendant "[b]ecame US citizen in 2010

– NYC [sic]" and defendant's wife12 A

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"verified the defe ndant's information." During the sentencing hearing, defense counsel indicated she reviewed the PSR with defendant and did not note any issues pertaining to def endant's citizenship. The judge sentenced defendant in accordance with the plea agreement to t wo years of probation, concurrent to the probationary term imposed on the Cumberland County indictment. Like the Cumberland County m atter, defendant did not fil e a direct appeal. Instead, defendant filed a timely pro se PCR petition, asserting he was
"m isinformed of [i]mmigration consequences, and unaware of possible deportation results." Through assigned counsel, defendant argued h is plea counsel was ineffectiv e by failing to inform him of the immigration consequences of accepting a guilty plea. After he was deported, defendant filed a certification in support of his petition. Among other things, he claimed "[n]either [his] counsel , nor anyone else, ever explai ned the distinction between being a lawful permanent resident (green card holder) and a citiz en of the United States" and had he known he would have been deported as a result of his guilty plea he "would have insisted13 A

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on going to trial." 2 Defendant also d enied telling the probation officials he was a citizen. The PCR judge, who did not enter d efendant's guilty plea, issued a cogent written decision, finding defendant failed to establish either prong of the Strickland/Fritz test. Recounting defendant's va rious statements indicating he was a United States citizen, the judge found defendant's ple a counsel and the plea judge "had no reason to question" defendant's citizenship. According to the judge, defendant "told counsel he was a U.S. citizen. It is unre asonable and unrealistic to impose a requirement on counsel or on the court to independentl y verify a defendant's statements in this regard." The PCR judge therefore concluded, "there were no potential immigration consequen ces of [defendant's guilty] plea ." The judge further determined defendant failed to "demonstrate[] sufficiently that he wa s guaranteed to forego a plea and proceed to trial if he knew he was potentially subject to deportation, or that he had a legitimate defense to the charges." On app eal, defendant presents the following arguments for our review: THE COURT ERRED IN DENYING DEFENDANT'S PETITION FOR [PCR] WITHOUT AFFORDING HIM

2 Defendant also claimed he would not have accepted the plea offer in Cumberland County had he know he would have been deported and unable to reenter the United States.14 A

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- 17T4 AN EVIDENTIARY HEARING SINCE PLEA COUNSEL WAS INEFFECTIVE FOR NOT INVESTIGATI NG THE SIMPLE TASK OF CONFIRMING W HETHER DEFENDANT WAS A CITIZEN AND DEFENDANT WAS ABSOLUTELY PREJU DICED BY PLEADING GUILTY REGARDLESS OF THE STRENGTH OF HIS DEFENSE TO THE CHARGES AGAINST HIM OR DEPORTATION STATUS [

. ] A. Plea Counsel was Ineffective for Failing to Conduct an Extremely Si mple Investigation into Defendant's Immigration Status and then S ubsequently Failing to Properly Advise him [

. ]
B. Defendant was Prejudiced and the PCR Court Misapplied the Law in Finding he was not because of a Purported ly Weak Defense to the Charges aga inst him and the Fact he was already Deported [

. ] Notwithstanding defendant's assertions at the plea hearing, he ar gues his plea counsel was ineffective because the record evinces sufficient confusion about his immigratio n status, i.e., he told the judge he became a citizen in 2002, but the PSR states he became a citizen in 2010. Defendant claims "[t]hese largely inco nsistent dates plus the fact defendant was born in Ghana, created enough uncertainty about his citizenship to warrant a reasonable investiga tion by plea counsel." Having considered defendant’s arguments in light of the record and controlling legal princi ples, we affirm, substantially for the reasons given by the15 A

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PCR judge in his well

- reasoned opinion. Defen dant’s arguments are without
suffici ent merit to warrant further discussion in our written opinion. R. 2:11

- 3(e)(2). We only note it is absolutely reasonable for an attorney to assume his or her client is being truthful about citizenship. It would be u nreasonable to impose an obligation on counsel to independently investigate the assertion. It simply was not ineffective assistance for defendant's c ounsel to take defendant at his word whe n he entered his guilty plea. Indeed, at best the discrepancy bet ween the dates defendant became a citi zen underscores when he became a United
State s citizen, not whether he became a citizen. We therefore agree wit h the PCR judge that defendant has failed to meet either prong of the Strickland/Fritz
test. Affirmed.