SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 16T4 STATE OF NEW JERSEY,
Plaintiff

- Respondent,

v. ADRIAN JARRETT,
Defendant

- Appellant.

_________________________

Submitted January 15, 2019

– Decided May 8, 2019 Before Judges Rothstadt and Gilson. On appeal from Superior Court of New Jersey, Law Division, Middlese x Coun ty, Indictment No. 95

- 09

- 0303. Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorne y for respondent (Susan L. Berkow, Special 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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

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In an earlier unpublished opinion, we vacated a trial court's denial of
defendant Adrian Jarrett's petition for post

- conviction relief (PCR) after an evidentiary hearing and remanded for a new hearing. See State v. Jarrett , No.
A

- 4044

- 12 ( App. Div. June 16, 201 5 ) (slip op

. at 16 ). Aft er conducting a second hearing in accordance with our remand, the PCR court 1 again denied defendant's

p eti ti on for PCR and defendant appealed. We now affirm.
As discus sed in our earlier opinion, defendant , " a Jamaican citizen and a legal permanent resident of the United States, pleaded guilty [ in 1993 ] to one count of distribution of a controlled dangerous substance, N.J.S.A. 2C:35

- 5(b)(3). " Id. at 2. In accordance with his plea agreement, the court sentenced
him to probation. 2
In his PCR petition , defendant claim ed that plea counsel failed to properly
advise him about the deportation consequences of his plea

. Id. at 3. After conducting an evidentiary hearing, the first PCR court conc luded that defendant satisfied the first prong under Strickland v. Washington , 466 U.S. 668, 687, 694

1 A different judge presided at the second hearing.

2 Defendant later pled guilty to a new offense and a corresponding violation of probation that led him to be sentenced to four years in prison.3 A

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(1984) , " because counsel twice circled ' N/A ' as to question sev enteen on the plea forms, " 3 when he should have known from " presentence reports

. . . that
defendant was a Jamaican citizen. " Id. at 4

- 5 . However, as we described, the
PCR court concluded that defendant did not prove prejudice under Strickland 's second p rong because defendant " was concerned about the sentence he would be exposed to in the event that he went to trial and was convicted.

. . . He was not concerned with the probability or the possibility of deportation ." I d. at 12

. After his first evidenti ary hearing, defendant was deported to Jamaica

. I d. at 5

. Nevertheless, defendant appealed the denial of PCR. In response to defendant's appeal, w e disagreed with the first PCR court's
determination because we concluded that its " factual finding that d efendant was
not concerned about his immigration status [was] not supported by the
record

. . . ." I d. at 13. Quoting from the United States Su preme Court's opinion
in Padilla v. Kentucky , 559 U.S. 356 (2010) , " we vacate [d] the order denying defendant's petition for [PCR] and remand [ed] the case to the trial court for an evidentiary hearing to determine if defendant can ' convince the court that a

3 Question seventeen asked : "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?"4 A

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decision to reject the plea bargain would have been rational under the
circumst ances. ' " Id . at 16 (quoting Padilla , 559 U.S. at 372). Judge Lorraine Pullen presided over the remand hearing at which
d efendant was the only witness. Defendant, who was approximately thirty

- two

years
- old at the time , testified that up until his deport ation, he had lived in the
Uni t ed States since he was about eleven

- years
- old and resided with his parents and siblings. Defendant stated that he viewed the United States as his and his family's home

. According to defendant , he only travelled to Jamaica once when
he was twelve

- years
- old. Although he had family members who lived there,
defendant had virtually no communications with them. Addressing his 1993 offense, when he was eighteen

- years
- old, defendant
stated that he was innocent of the charge. Further, if his plea counsel had properly advised him about being deported as a result of his plea, he would not have pled guilty and instead would have risked going to trial and being
sentenced to prison.
After considering t he record and defendant's testimony, Judge Pullen
denied defendant's petition. She set forth her findings and explained the reasons for denying the petition a second time i n a fourteen

- page written decision that accompanied her June 30, 2017 order. Citin g to our opinion in State v. Maldon ,5 A

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442 N.J. Super. 475, 486 (App. Div. 2011) and the United States Supreme Court's opinion in Hill v. Lockhart , 474 U.S. 52, 59 (1985), the judge observed
that in order for defendant to prove that he suffe re d any prejudice under
Strickland 's second prong, he had to

establish [] by a preponderance of the evidence that it would have been reasonable not to take the [ p ] lea and instead go to trial , and that he would have done so

. . . . [ which ] turn[ed] on whether t he outcome of the proceeding would have likely been more favorable than the terms of the plea deal. The judge then found that defendant's plea was "voluntary, knowing and intelligent" and turned to the issue of prejudice. In her determination of whether
defendant was prejudiced by counsel's misinformation, the judge compared the
facts of this case to those in State v. McQuaid , 147 N.J. 464 (1997), and
conclude d they were similar. As she explained, in McQuaid , a defendant's PCR petition was rejected beca use he could not establish a " manifest injustice " whe re he pled guilty to a crime for which he was fac ing life in prison with a sixty

- year period of parole ineligibility , but only wa s sentenced under his plea t o forty years with a thirty

- year parole disqua lifier

. Judge Pullen compared those facts
to defendant's circumstances and stated the following about t h e strength o f the
evi de nce against defendant and the benefit he received from his plea agreement :6 A

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- 16T4 Much like the defendant in McQuaid , Petitioner here also obtained significant benefits from his plea bargain. Like McQuaid , the State's evidence against Petitioner was substantial, and would have included statements from officers from the [county] Narcotics Task force who observed Petitio ner selling cocaine, the seized cocaine, and Petitioner's voluntary statement to police that he was selling cocaine. Further like McQuaid , Petitioner's potential exposure for a conviction of two counts of possession of cocaine with intent to distribute an d one count of possession of cocaine have resulted in harsher penal exposure than what was provided per the terms of the plea. Thus, despite the attorney's misinformation, the 1993 case resolved in Petitioner's favor as he received a substantial benefit a s a result of his plea bargain. In further support of her determination that under the circumstances it would not have been reasonable for defendant to have rejected his plea offer,

t he judge concluded that there was no evidence that a "manifest injustice" would

occur if defendant's plea was not vacated. She considered the evidence adduced

at t he remand hearing and applied it to the factors delineated in S tate v. Slater , 198 N.J. 145 , 157

- 58 (2009) , finding no basis to vacate de fendant's plea. Judge
Pullen specifically observed that defendant made no "colorable claim of
innocence " at the hearing other than an unsupported " bare assertion" that he was
innocent. She found that his testimony about his innocence was not credible in light of the record . The record established that after his arrest , defendant7 A

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admitted to police that he committed the charged offense and there was no dispute that he provided a factual basis in support of his plea while under oath

. Addressing the stren gth of def endant' s reason for wanting to withdraw his plea, the judge found defendant incredible in his assertions that he would have rejected the plea offer had he known he could be deported , especially in light of the weight of the evidence against hi m t hat exposed hi m to a "high" chance of
incarceration as compared to the probation he received under the plea
agreement. The court also found that the plea agreement was "mutually
beneficial " to defendant and the State and that the State would be greatly

pr e judiced by vacating the plea and going to trial based upon the extreme age of
the case. This appeal followed. On appeal, defendant argues the following:
POINT I
THE LOWER COURT ERRED IN DENYING [DEFENDANT'S] PETITION FOR [PCR]

. In support of his argument , defendant explains that Judge Pullen' s findings
"were so contrary to the evidence in the record that appellate intervention is
necessitated." He claim s that she again concluded that defendant was only "concerned with penal consequences " and not with the possibility of deportation and its impact on him and his family. He also contends that the judge went8 A

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beyond the scope of our remand because she analyzed his petition under Slater in determining whether the enforcement of his plea was a " manifest injustice." Our Supreme Court has established the standard of our review in PCR
cases where the PCR court held an evidentiary hearing:

In reviewing a PCR court's factual findings based on live testimony, an appellate court applies a deferential standard; it "will uphold the PCR court's findings that are supported by sufficient credible evidence in the record." Indeed, "[a]n appellate court's reading of a cold record is a pale substitute for a trial judge's assessment of the credibility of a wit ness he has observed firsthand." However, a "PCR court's interpretation of the law" is afforded no deference, and is "reviewed de novo." "[F]or mixed questions of law and fact, [an appellate court] give[s] deference

. . . to the supported factual findings of the trial court, but review[s] de novo the lower court's application of any legal rules to such factual findings." [ State v. Pierre , 223 N.J. 560, 576

- 77 (2015) ( first, second, fourth, and fifth alterations in original) (citations omitted).] Applying that standard, we conclude that defendant's argument is without merit. We affirm substantially for the reason expressed by Judge Pullen in her comprehensive written decision. We add only the following comments.
In Lee v. United States , 137 S. Ct. 1958 (2017) the Supreme Court stated that in considering a claim of prejudice under Strickland 's second prong,

" [c] ourts should not upset a plea solely because of post hoc assertions from a9 A

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defendant about how he would have pleaded but for his attorney 's deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant's expressed preferences." Lee , 137 S. Ct. at 1967. The Court also explained that

common sense (not to mention our precedent) recognizes that there is mor e to consider than simply the likelihood of success at trial. The decision whether to plead guilty also involves assessing the respective consequences of a conviction after trial and by plea

. . . . When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. [ Id. at 1966 (citation omitted)

. ] The evidence presented by defendant at the remand hearing failed to satisfy his burden by establishing that he was confronted at the time with "similarly dire" consequences

. At the hearing, other than defendant's bald assertions, there was no evidence of any defenses that defendant could have
raised in 1993 to t h e facts that led to his arr est and charge

. Moreover, the potential consequences of taking a chance at trial were "markedly harsher" than entering the plea. Id. at 1969. Without evidence of a viable defense, defendant faced a prison sentence of at least five years with a mandatory period of parole ineligibility as compared to the plea offer's recommendation for non

- custodial probation. The record demonstrated that it would not have been rational for10 A

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defendant to reject the State's very favorable plea offer, proceed to trial, and r un the risk of serving several years in prison

. Affirmed.