SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2766-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHEVAUGHN D. FAGAN,

a/k/a/ CHEVAUGHN FAGAN,

Defendant-Appellant.

__________________________

Submitted January 18, 2022 – Decided February 1, 2022

Before Judges Rose and Enright.

On appeal from the Superior Court of New Jersey, Law 

Division, Mercer County, Indictment Nos. 13-07-0920, 

16-07-0639 and 16-11-0872.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Al Glimis, Designated Counsel, on the 

briefs).

Angelo J. Onofri, Mercer County Prosecutor, attorney 

for respondent (Randolph E. Mershon, III, Assistant 

Prosecutor, of counsel and on the brief).

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NOT FOR PUBLICATION WITHOUT THE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.
2 A-2766-19

Defendant Chevaughn D. Fagan, a non-citizen of the United States, 

appeals from a January 28, 2020 order denying his petition for post-conviction 

relief (PCR) without an evidentiary hearing. We affirm.

Between July and November 2016, defendant was charged with various 

assault and weapons offenses in multiple counts of two separate Mercer County 

indictments. On December 9, 2016, pursuant to a negotiated plea agreement, 

defendant pled guilty to second-degree possession of a weapon for an unlawful 

purpose on Indictment No. 16-11-0872, and second-degree unlawful possession 

of a weapon on Indictment No. 16-07-0639. Defendant also pled guilty to 

violating a July 23, 2015 probationary sentence on a fourth-degree weapons 

offense charged in Indictment No. 13-07-0920. The State recommended an 

aggregate prison term of five years with a parole disqualifier of forty-two 

months, and agreed to dismiss the remaining counts of Indictment Nos. 16-11-

0872 and 16-07-0639. 

Represented by assigned counsel at the plea proceeding, defendant 

testified he read the plea form, counsel reviewed the plea form with him, he 

initialed each of the five pages, and he signed the last page and the supplemental 

plea form. Defendant further stated he was satisfied with his attorney's services, 

and was not forced or pressured to sign the plea forms. 
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Relevant here, defendant acknowledged he is not a United States citizen, 

and that his guilty plea "to one or all of these offenses could lead to changing 

[his] immigration status; it could lead to deportation." When the court inquired

whether defendant had an opportunity to consult with an immigration attorney, 

the following exchanged ensued:

DEFENDANT: I talked to Ms. . . .

THE COURT: Ms. [Plea Counsel]? Okay.

PLEA COUNSEL: Your Honor, Mr. Fagan has had the 

opportunity but didn't have the funds to do so. We 

talked about what my office suggests would happen. I 

think they're very much so . . . our immigration counsel 

(indiscernible) . . . believe [sic] that would lead to 

deportation and we did go over that.

THE COURT: [Addressing defendant] You've been 

advised about that — that it's likely that you would be 

deported based on these guilty pleas?

DEFENDANT: Yes.

Additionally, defendant answered, "Yes" to Question 17(f) of the plea form: 

"Having been advised of the possible immigration consequences and of your 

right to seek individualized legal advice on your immigration consequences, do 

you still wish to plead guilty?"

Prior to sentencing, defendant retained private counsel, who moved to 

withdraw defendant's guilty pleas on several grounds, including plea counsel's
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failure to "properly advise [defendant] of the consequences of his plea regarding 

the deportation issue," and that he was not afforded the opportunity to consult 

with an immigration attorney. Motion counsel also contended defendant

satisfied the Slater1 factors, warranting vacatur of his guilty pleas on that 

additional basis. 

Citing our Supreme Court's decision in State v. Gaitan, 209 N.J. 339

(2012), motion counsel argued plea counsel "must highlight for non-citizens" 

that a guilty plea "will place [them] at risk of removal and that they may seek to 

obtain counseling on potential immigration consequences in order that their 

guilty plea [is] accepted as knowing and voluntary." Referencing the plea 

transcript, counsel claimed the advice rendered by plea counsel and the court 

was "[n]ot a specific, affirmative: '[Your guilty pleas] will result in your 

removal.'" Instead, plea counsel said her office "believe[d] it would lead" while 

the court stated defendant's guilty pleas "could lead to changing [defendant's] 

immigration status." Motion counsel contended that advice was incorrect, 

stating: "I think it actually will result in his removal." 

Immediately following argument, the trial court rendered a thorough oral 

decision, denying defendant's motion. Noting portions of the transcript were 

1 State v. Slater, 198 N.J. 145 (2009). 
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indiscernible, the court reviewed the transcript of the plea hearing and listened 

to the CourtSmart recording. The court found, "there was n[ot] a great deal of 

hesitation between the questions and responses, unless it was appropriate." 

Regarding the immigration issue, the court distinguished the facts of the 

present matter from those in State v. Nuñez-Valdéz, 200 N.J. 129 (2009), which 

was cited in motion counsel's brief. The court recognized the plea attorney in 

Nuñez-Valdéz misinformed the defendant his guilty plea would not affect his 

immigration consequences, although the crime mandated deportation. 

Conversely, here, defendant was told his guilty pleas would "likely" lead to his 

deportation. Further, the court stated unlike the Nuñez-Valdéz matter, "even at 

this point [motion counsel] cannot say with absolutely certainty that [defendant] 

would be deported." Finally, the court noted the matter had been adjourned prior 

to the plea hearing to afford defendant an opportunity to speak with an 

immigration attorney. 

Following the denial of the motion to retract his guilty pleas, defendant 

was continued on bail but failed to appear at sentencing. The next year, he was 

arrested in Milwaukee, extradited to New Jersey, and sentenced in accordance 

with the plea agreement. 
6 A-2766-19

Defendant filed a direct appeal of his sentence and the trial court's denial 

of his motion to withdraw his guilty pleas, which this court heard on an 

excessive sentencing calendar. See R. 2:9-11. During argument, appellate 

counsel maintained defendant's guilty pleas were not knowing and voluntary 

because he was not afforded "the opportunity to consult an immigration attorney 

about the probable deportation if he accepted the plea." Counsel also argued 

defendant failed to realize he was pleading guilty to more than one weapons 

offense. We denied defendant's appeal in a January 9, 2019 order. No further 

appeals were taken.

In February 2019, defendant filed a timely pro se PCR petition, seeking 

to withdraw his guilty pleas. Pertinent to this appeal, defendant contended his

plea "was not knowing and voluntary because his attorney did not explain to him 

that he was pleading guilty to a weapon offense that would result in his 

deportation."

With the assistance of appointed PCR counsel, defendant filed an 

amended petition, incorporating defendant's pro se arguments. PCR counsel 

framed defendant's ineffective assistance of counsel claims as follows: (1) 

"failure to properly explain the implications of the plea"; and (2) "failure to go 

over the discovery with [defendant] and discuss options such as trial." To 
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support his amended petition, defendant certified although plea counsel "told 

the [c]ourt that [defendant] had an opportunity to speak with an attorney 

regarding [his] immigration status," he "only heard" from plea counsel that he 

"could possibly be deported." 

Following oral argument, the PCR judge, who did not preside over the 

trial court proceedings, issued a cogent written decision, denying defendant's 

petition. The judge accurately recounted the procedural history, the trial court's 

decision on defendant's motion to withdraw his guilty pleas, and applicable legal 

principles. Because defendant's ineffective assistance of counsel claims

"concerning the effect of his plea on his immigration status were previously 

adjudicated on the merits," the PCR judge found they were barred procedurally 

under Rule 3:22-5. The judge reached the merits on defendant's remaining 

claims, concluding they were "bald assertions" and defendant nonetheless failed 

to demonstrate plea counsel's performance prejudiced the outcome of his case.

This appeal followed. 

On appeal, defendant reprises only those claims that the PCR judge found 

were procedurally barred. He raises the following points for our consideration. 

POINT I

THE PCR COURT ERRED IN FINDING THAT 

DEFENDANT'S CONTENTION THAT HE WAS 
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DENIED THE EFFECTIVE ASSISTANCE OF 

COUNSEL WHEN TRIAL COUNSEL FAILED TO 

INFORM HIM OF THE IMMIGRATION 

CONSEQUENCES OF HIS GUILTY PLEAS WAS 

PROCEDURALLY BARRED. THE COURT FAILED 

TO RULE ON DEFENDANT'S PROPERLY RAISED 

POST-CONVICTION RELIEF ISSUE.

POINT II

THE PCR COURT ERRED WHEN IT DENIED 

DEFENDANT AN EVIDENTIARY HEARING TO 

DETERMINE THE MERIT OF HIS CONTENTION 

THAT HE WAS DENIED THE EFFECTIVE 

ASSISTANCE OF COUNSEL, AND THEREBY THE 

RIGHTS OF DUE PROCESS AND A FAIR TRIAL,

WHEN TRIAL COUNSEL MISINFORMED HIM, ON 

THE RECORD IN OPEN COURT, OF THE 

IMMIGRATION CONSEQUENCES OF HIS GUILTY 

PLEA[S]. (U.S. CONST. AMENDS. V, VI, XIV; N.J. 

CONST. . . . ART. I, [¶¶] 1, 9, 10).

More particularly, defendant argues his direct appeal did not address the 

same claims as his PCR petition. He asserts neither the motion judge nor this 

court adjudicated whether he was denied the effective assistance of counsel. For 

the first time on appeal, defendant specifically contends his plea counsel failed 

to advise that his possession of a weapon for an unlawful purpose conviction is 

considered an aggravated felony under federal immigration law. 

If an issue has previously been raised and decided, the "prior adjudication 

upon the merits . . . is conclusive whether made in the proceedings resulting in 
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the conviction . . . or in any appeal taken from such proceedings." R. 3:22-5.

PCR is not "an opportunity to relitigate matters already decided on the merits."

State v. Afanador, 151 N.J. 41, 50 (1997). An issue decided on direct appeal 

may not be considered in a PCR proceeding. See State v. Preciose, 129 N.J. 

451, 476 (1992). In determining whether this procedural bar applies, the 

challenged claim should be compared with the prior claim to determine if the 

two "are either identical or 'substantially equivalent.'" State v. Marshall, 173 

N.J. 343, 351 (2002). "If the claims are substantially the same, the petition is 

procedurally barred; if not, the claim of error should be adjudicated when there 

is no other reason to bar it." Ibid.

On this record, we are satisfied the PCR judge properly determined 

defendant's arguments were procedurally barred. In addition, even if defendant's 

PCR arguments were not procedurally barred, defendant failed to make a prima 

facie showing in support of his ineffective assistance of counsel claim.

Although in seeking PCR, defendant reframed his argument in terms of 

ineffective assistance of counsel, he rehashes the same contentions, maintaining 

plea counsel failed to advise him about the effect of his guilty pleas on his 

immigration status. That contention was rejected by the motion judge, who 

distinguished the incorrect advice rendered by the defense attorney in Nuñez-
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Valdéz from the advice rendered to defendant in this case, i.e., that his guilty 

pleas would likely lead to his deportation. And as stated, we affirmed the motion 

judge's decision on appeal. By casting the sentencing issue in terms of 

ineffective assistance of counsel, defendant attempts to sidestep the bar that 

would ordinarily preclude review. We therefore conclude the issues asserted in 

defendant's petition for PCR are "substantially equivalent" to substantive claims 

of error that were raised and denied by the motion judge, and thereafter rejected 

by this court. 

Even if defendant's claims were not procedurally barred, he failed to 

establish a prima facie case of ineffective assistance of counsel under the 

Strickland/Fritz2 framework. To establish an ineffective assistance of counsel 

claim, a defendant must demonstrate: (1) "counsel's performance was 

deficient"; and (2) "the deficient performance prejudiced the defense." 

Strickland, 466 U.S. at 687; see also Fritz, 105 N.J. at 58 (adopting the 

Strickland two-part test in New Jersey).

In the context of plea agreements of non-citizen defendants, the 

performance of plea counsel is deficient under the first prong of the Strickland

2 Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 

42, 58 (1987).
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standard where counsel "provides false or misleading information concerning 

the deportation consequences of a plea of guilty." Nuñez-Valdéz, 200 N.J. at 

138. In addition, in Padilla v. Kentucky, 559 U.S. 356, 367 (2010), the United 

States Supreme Court held that plea counsel "is required to address, in some 

manner, the risk of immigration consequences of a non-citizen defendant's guilty 

plea." State v. Blake, 444 N.J. Super. 285, 295 (App. Div. 2016). 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. Gaitan, 209 N.J. at 380. 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.

As the PCR judge noted when recounting the facts of the matter, the trial 

court determined defendant "'discussed the impact and consequences' of his 

guilty pleas with an attorney," and "was properly informed that the plea would 

'likely' lead to deportation." As we have recognized, plea counsel is not required 

to state the words "mandatory deportation" to convey the real consequences of 

the defendant's plea. Blake, 444 N.J. Super. at 299-300 ("reject[ing the] 
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defendant's suggestion that a defense attorney must use 'magic words' –

'mandatory deportation' or 'presumptively mandatory deportation' – to fulfill his 

obligation to provide effective assistance to a non-citizen client"). It sufficed 

that plea counsel stated defendant's convictions "would lead to deportation" and 

the trial court stated it was "likely" defendant would be deported. Accordingly, 

defendant is unable to demonstrate plea counsel's performance was so deficient 

as to constitute ineffective assistance of counsel. 

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

sufficient merit to warrant further discussion in a written opinion. R. 2:11-

3(e)(2).

Affirmed.