RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO . A

- 1792

- 20

STATE OF NEW JERSEY,

Plaintiff

- Respondent,

v.

SHANIEL N. HENRY,

a/k/a SHANIEA HENRY and SHANIL N. HENRY,

Defendant

- Appellant.

_______________________

Submitted May 10, 2022

– Decided August 17, 2022

Before Judges Currier and Smith.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 18

- 03

- 0 303.

Joseph E. Krakora, Public Defender, attorney for appellant (Abby P. Schwartz, Designated Counsel

, on the brief).

Camelia M. Valdes, Passaic County P rosecutor, attorney for respondent (Leandra L. Cilindrello, 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE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

. " 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

- 3.2 A

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Defendant Shaniel N. Henry, a non

- citizen, pled guilty to one count of

fourth

- degree possession of a controlled dangerous substance, N.J.S.A. 2C:35

-

10(a)(3). He was sentenced to one year of probation conditioned upon 364 days

in the county jail. Defendant filed an application for post

- conviction relief

(PCR). The trial judge who took defendant's plea heard the PCR motion and

denied it without an evidentiary hearing. O n appeal, defendant argues that his

trial counsel violated his Sixth Amendment right to counsel by failing to

adequately inform him of potential adverse immigration consequences as a

result of his guilty plea. We affir m.

Defendant's car and home were searched by police officers. D efendant,

his wife, and brother all signed consent forms to permit the searches to take

place. The police recovered one plastic bag containing twenty

- three bags of

marijuana, $200 in mixed U .S. currency, one prescription bott l e, and documents

addressed to defendant. Defendant was arrested and charged with: (1) fourth

degree possession of a controlled dangerous substance, N.J.S.A. 2C:35

- 10 (a) (3);

(2) fourth

- degree distribution of a controlled dangerous substance, N.J.S.A.

2C:35

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

- 5 (b) (12); (3) third

- degree distribution of a

controlled dangerous substance within 1,000 feet of school property, N.J.S.A.

2C:35

- 5 (a) ; (4) third

- degree possession of a controlled dangerous sub stance3 A

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- 20

with intent to distribute, N.J.S.A. 2C:35

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

- 5 (b) (11);

and (5) third

- degree possession of a controlled dangerous substance with intent

to distribute within 1,000 feet of school property, N.J.S.A. 2C:35

- 7.1.

Defendant entered into a plea bargain before Judge Sohail Mohammed,

pleading guilty to fourth

- degree possession of marijuana. The judge sentenced

defendant to probation, conditioned upon 364 days in the c ounty j ail, and the

State agreed to dismiss all other counts of the indictment.

Defendant moved for PCR

, raising multiple ineffective assistance of

counsel claims

, including: failure to properly advise defendant about the

potential consequences to his immigration status of a guilty plea; failure to

properly advise defendant regarding his potential defenses to the multiple drug

charges; and failure to mount a challenge to the w arrantless search of defendant's

vehicle and home. Defendant also argued that his plea was not knowing and

voluntary. Judge Mohammed, in a comprehensive and cogent twenty

- eight

- page

opinion, rejected defendant's PCR claims without a hearing.

Defendant ra ises the following issue on appeal:

IN MISINFORMING DEFENDANT OF THE IMMIGRATION CONSEQUENCES OF HIS GUILTY PLEA, COUNSEL WAS INEFFECTIVE AND

DENIED DEFENDANT HIS RIGHT TO COUNSEL

AND DUE PROCESS.4 A

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We use a de novo standard of review whe n a PCR court does not conduct an

evidentiary hearing

. State v. Blake

, 444 N.J. Super. 285, 294 (App. Div. 2016)

( citing State v Harris

, 181 N.J. 391, 421 (2004)). When petitioning for PCR, a

defendant must establish he is entitled to "PCR by a preponderance of the evidenc e."

State v. O'Donnell

, 435 N.J. Super. 351, 370 (App. Div. 2014) (quoting State v.

Preciose

, 129 N.J. 451, 459 (1992)).

We analyze ineffective assistance of counsel claims using the two

- prong test

established by the Supreme Court in Strickland 1

. See Preciose

, 129 N.J. at 463; see

also State v. Fritz

, 105 N.J. 42, 58 (1987). The first prong of the Strickland test

requires a defendant to establish counsel's performance was deficient. Preciose

, 129

N.J

. at 463. "The second, and far more difficult, prong of the Strickland

. . . test is

whether there exists 'a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different.'" Id. at 463

- 64

(quoting Strickland

, 466 U.S. at 694).

There exists a strong presumption that counsel rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment. Strickland

, 466 U.S. at 689. Further, because prejudice is not presumed,

defendant must de monstrate how specific errors by counsel undermined the

1 Strickland v. Washington , 466 U.S. 668 (1984).5 A

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reliability of the proceeding. State v. Drisco

, 355 N.J. Super

. 283, 289

- 90 (App.

Div. 2002) (citing United States v. Cronic

, 466 U.S. 648, 659 n.26 (1984)).

Defendant contends that he was "misinformed" about the possible

consequences to his immigration status by trial counsel, and that this ineffective

assistance of counsel violated his Si x th Amendment r ight to counsel and due

process. We are not persuaded and find no merit in defendant's argument.

Judge Mohammed presided over the plea hearing. T rial counsel examined

defendant 's understanding of how a guilty plea might affect his immigration status,

and defendant confirmed that he consulted with separate immigration counsel before

accept i ng the plea deal. T he following exchange between defendant and his counsel

took place:

[ COUNSEL ] : Mr. Henry, just as to the immigration

matter, I advised you that you do have your own immigration attorney, Mr. O'Neill, correct?

[ DEFENDANT ] : Yes, Your Honor. 2

[ COUNSEL ] : I believe he's out of Morris C ounty, right?

[ DEFENDANT ] : Yes.

2 The record shows that defendant had just completed a colloquy with Judge Mohammed, and the question above was the first question from his counsel after answering a series of questions from the judge. All indications are that

defendant intended to addres s his attorney in answering the first question.6 A

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- 20 [ COUNSEL ] : And I did speak with him prior to accepting this plea offer and I advised you of that.

[ DEFENDANT ] : Yes.

[ COUNSEL ] : And actually [,] this plea o ffer was part of a negotiation that we had with Mr. O'Neill and the

prosecutor [,] and you are comfortable moving forward understanding that, of course, you are in an immigration proceeding, any offense can contribute to your deportation [,] but this was neg otiated with protecting your interest and mine. You understand that,

correct?

[ DEFENDANT ] : Yes.

[ COUNSEL ] : And so you do definitely want to plead guilty understanding that, of course, anything can happen in immigration court. You could be deported

b ut this charge

-- the advice was [that] this charge, it would be unlikely this charge would be the thing that would deport you. Do you understand that?

[ DEFENDANT ] : Yes.

[ COUNSEL ] : And I explained that to you, right?

[ DEFENDANT ] : Yes.

Defendant also engaged in a plea colloquy with the judge

, demonstrating

his independent understanding of the potential immigration consequences for

the court

.

[ COURT ] : Okay. You understand what' s going on

today, correct?7 A

- 1792

- 20 [ DEFENDANT ] : Yes, Your Honor.

[ COURT ] : And it's my understanding

- and did you have sufficient time to think about this, sir?

[ DEFENDANT ] : Yes, Your Honor.

[ COURT ] : And this is something that you want to do,

correct?

[ DEFENDANT ] : Yes, Your Honor.

[ Court ] : And did you have reasonable time to speak with counsel with regard to this matter [,] and also it's my understanding [,] with regard to the immigration issues, correct?

[ DEFENDANT ] : Yes, Your Honor.

[ COURT ] : And with regard to both Ms. Young and the advice that you have received as to the immigration from the immigration counsel, are you satisfied with the

services of both counsel?

[ DEFENDANT ] : Yes, Your Honor.

[ COURT ] : And you understand the consequences from an immigration proceeding, correct?

[ DEFENDANT ] : Yes, Your Honor.

[ COURT ] : Now, did anybody force you, coerce you, or make any promises to you other than what has been

said in court?

[ DEFENDANT ] : No, Your Honor.8 A

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The record shows quite clearly that defendant failed to meet his burden on

either prong one or two of Strickland

. He made no showing to overcome the

"strong presumption " of adequate assistance by trial counsel

, as she reviewed

steps they took together to ensure defendant understood the risks to his

immigration status. Strickland

, 466 U.S. at 689

. Even if he could have met the

first prong of Strickland , there was no showing of any nexus between alleged

errors by counsel and harm to the reliability of the proceeding. Defendant's

colloquy with his counsel and the judge demonstrated he und erstood the risks

and wished to proceed with the guilty plea. Judge Mohammed was correct in

denying the PCR without a hearing as defendant did not make the necessary

showing. W e find no error.

Affirmed.