RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-5244-17T4

 A-0475-18T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

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. 14-04-

0268 and Atlantic County, Indictment No. 16-01-0070.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Janet Anne Allegro, Designated Counsel, of 

counsel and on the briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Lauren Bonfiglio, Deputy Attorney 

General, of counsel and on the briefs).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

December 11, 2019
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A-5244-17T4

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 citizen. 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 status 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 our review with a discussion of the relevant legal 

principles, which are common 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 (App. Div. 2014). We also review 

de novo the court's conclusions of law. State v. Harris, 181 N.J. 391, 420 (2004).
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When petitioning for PCR, the defendant must establish, by a 

preponderance of the credible evidence, entitlement to the requested relief. 

State 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 to 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 facie claim of ineffective assistance of counsel, the 

defendant must demonstrate 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 counsel's performance; and (2) prejudice 

to his defense. Id. at 687; see also 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 defendant] must do more 

than make bald assertions that he was denied the effective assistance of counsel. 

He must allege facts sufficient to demonstrate counsel's alleged substandard 

performance." Cummings, 321 N.J. Super. at 170.
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Under the first prong, the defendant must demonstrate that "counsel made 

errors so serious that counsel 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 counsel's errors were so serious as 

to deprive the defendant of a fair trial, a trial 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 different." Id. at 694. In 

the context of a guilty plea, our Supreme Court 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, "when counsel provides false or affirmatively misleading 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 claim has been 

established." Id. at 351.
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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 these standards.

II. The Cumberland County Appeal (A-5244-17)

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 seconddegree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), after his 

girlfriend reported 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 child acknowledged her father had sexually assaulted her 

on numerous occasions during the prior three years.

In January 2015, defendant pled guilty to amended charges of fourthdegree 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?" During 
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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 understood th[e] 

document . . . ."

The Uniform Defendant 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 

the PSR with defendant and they had "no additions 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 counsel was 

ineffective by providing "[m]isinformation 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 petition.

During oral argument, PCR counsel provided to the judge a copy of 

defendant's "rap" sheet, which indicated defendant was not a United States 
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citizen.1 PCR counsel argued plea counsel should have investigated defendant's 

immigration status based on his country of birth and the conflicting information 

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 concluded 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 failed 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 for 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 DEFENDANT WAS NOT A 

CITIZEN, AS INDICATED IN HIS RAP SHEET, 

AND DEFENDANT WAS THEREBY PREJUDICED 

1 Because defendant had been deported, PCR counsel waived his appearance at 

the hearing. The PCR judge was not the same judge who entered defendant's 

guilty plea.
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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 other than those expressed by the PCR 

judge. See State v. Heisler, 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 conclusion that defendant satisfied 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 sheet to support his conclusion that plea counsel was ineffective. 

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 sheet, the judge impermissibly "fill[ed] in 

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 reliance on those 

assertions – we conclude the PCR judge erred by finding defendant satisfied the 

first Strickland/Fritz prong.
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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 removal, we agree with the 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" that "he would not have pled had he known of the deportation 

consequences" 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 testifying he had answered truthfully. Plea counsel (and the judge) 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 statements or 

actions. Counsel'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 

analyzing events about which they were never alerted." Ibid.

To the extent not addressed, defendant's remaining arguments lack 

sufficient merit to warrant discussion in our written opinion. R. 2:11-3(e)(2).
10 A-5244-17T4

Affirmed.

* * *

III. The Atlantic County Appeal (A-00475-18)

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 remaining three counts charged 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. Like 

the Cumberland County matter, 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 his citizenship status:

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

United States?

DEFENDANT: Yes, Your Honor.

JUDGE: And where were you born?

DEFENDANT: West Africa.

JUDGE: You were born in West Africa?
11 A-5244-17T4

DEFENDANT: Yes.

JUDGE: And you're a naturalized 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 understand generally 

what's going on here today?

DEFENDANT: Yes, Your Honor.

JUDGE: Okay. And nonetheless, if you have 

any questions, I want you to ask your 

attorney . . . to alert the Court. We 

will then in turn try to clarify any 

confusion that you might have. 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 states 

defendant "[b]ecame US citizen in 2010 – NYC [sic]" and defendant's wife 
12 A-5244-17T4

"verified the defendant's information." During the sentencing hearing, defense 

counsel indicated she reviewed the PSR with defendant and did not note any 

issues pertaining to defendant's citizenship. The judge sentenced defendant in 

accordance with the plea agreement to two years of probation, concurrent to the 

probationary term imposed on the Cumberland County indictment. Like the 

Cumberland County matter, defendant did not file a direct appeal.

Instead, defendant filed a timely pro se PCR petition, asserting he was 

"misinformed of [i]mmigration consequences, and unaware of possible 

deportation results." Through assigned counsel, defendant argued his plea 

counsel was ineffective 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 explained the distinction between being a lawful permanent resident 

(green card holder) and a citizen of the United States" and had he known he 

would have been deported as a result of his guilty plea he "would have insisted 
13 A-5244-17T4

on going to trial."2 Defendant also denied telling the probation officials he was 

a citizen.

The PCR judge, who did not enter defendant's guilty plea, issued a cogent 

written decision, finding defendant failed to establish either prong of the 

Strickland/Fritz test. Recounting defendant's various statements indicating he 

was a United States citizen, the judge found defendant's plea 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 unreasonable and 

unrealistic to impose a requirement on counsel or on the court to independently 

verify a defendant's statements in this regard." The PCR judge therefore 

concluded, "there were no potential immigration consequences of [defendant's 

guilty] plea." The judge further determined defendant failed to "demonstrate[] 

sufficiently that he was 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 appeal, 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-5244-17T4

AN EVIDENTIARY HEARING SINCE PLEA 

COUNSEL WAS INEFFECTIVE FOR NOT 

INVESTIGATING THE SIMPLE TASK OF 

CONFIRMING WHETHER DEFENDANT WAS A 

CITIZEN AND DEFENDANT WAS ABSOLUTELY 

PREJUDICED 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 Simple Investigation into Defendant's 

Immigration Status and then Subsequently Failing to 

Properly Advise him[.]

B. Defendant was Prejudiced and the PCR Court 

Misapplied the Law in Finding he was not because of a 

Purportedly Weak Defense to the Charges against him 

and the Fact he was already Deported[.]

Notwithstanding defendant's assertions at the plea hearing, he argues his 

plea counsel was ineffective because the record evinces sufficient confusion 

about his immigration 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 inconsistent dates plus the fact defendant was born in Ghana, created 

enough uncertainty about his citizenship to warrant a reasonable investigation 

by plea counsel."

Having considered defendant’s arguments in light of the record and 

controlling legal principles, we affirm, substantially for the reasons given by the 
15 A-5244-17T4

PCR judge in his well-reasoned opinion. Defendant’s arguments are without 

sufficient 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 unreasonable to impose 

an obligation on counsel to independently investigate the assertion. It simply 

was not ineffective assistance for defendant's counsel to take defendant at his 

word when he entered his guilty plea. Indeed, at best the discrepancy between 

the dates defendant became a citizen underscores when he became a United 

States citizen, not whether he became a citizen. We therefore agree with the 

PCR judge that defendant has failed to meet either prong of the Strickland/Fritz

test.

Affirmed.