STATE OF NEW JERSEY VS. JAHMAI S. JAMES (15-06-0195, ESSEX COUNTY AND STATEWIDE)

S
                                 NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4613-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JAHMAI S. JAMES, a/k/a
JAHMAI SUDANI JAMES,
and JAHMAI JAMES,

     Defendant-Appellant.
____________________________

                   Submitted October 14, 2020 – Decided November 25, 2020

                   Before Judges Fisher and Moynihan.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Essex County, Accusation No. 15-06-
                   0195.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Robert K. Uyehara, Jr., Designated Counsel
                   on the brief).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (Catlin A. Davis, Deputy Attorney
                   General, of counsel and on the brief).
PER CURIAM

      Defendant Jahmai S. James appeals from the denial of his post-

conviction relief (PCR) petition, arguing:

            POINT I

            THE PCR COURT ERRED IN DENYING
            DEFENDANT'S PCR CLAIM OF INEFFECTIVE
            ASSISTANCE OF COUNSEL.

                  A.    THE TRIAL COURT ERRED IN
                        FAILING TO FIND THAT DEFENDANT
                        RECEIVED            INEFFECTIVE
                        ASSISTANCE OF COUNSEL AT THE
                        PLEA      AND       SENTENCING
                        REGARDING     HIS  IMMIGRATION
                        CONSEQUENCES.

                  B.    THE TRIAL COURT ERRED IN
                        DENYING     DEFENDANT AN
                        EVIDENTIARY HEARING.

Reviewing the factual inferences drawn by the trial court and its legal

conclusions de novo because the trial court did not conduct an evidentiary

hearing, State v. Blake, 

444 N.J. Super. 285

, 294 (App. Div. 2016), we are

compelled to reverse and remand this matter for an evidentiary hearing. Not

only did the trial court mistakenly analyze the PCR petition under the test for




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plea withdrawal instead of the Strickland-Fritz standard, 1 the record reveals

defendant established a prima facie case of ineffective assistance of counsel so

as to warrant an evidentiary hearing.

      Defendant supported his PCR petition with a certification averring his

plea counsel knew he was born in Jamaica; counsel never discussed "that there

were immigration consequences to the plea and that [defendant] would surely

be deported" after he pleaded guilty on June 5, 2015 to two counts in

Accusation 15-06-195:      second-degree unlawful possession of a weapon


1
  To establish a PCR claim of ineffective assistance of counsel, a defendant
must satisfy the two-pronged test formulated in Strickland v. Washington, 

466 U.S. 668

, 687 (1984), and adopted by our Supreme Court in State v. Fritz, 

105 N.J. 42

, 58 (1987), first by "showing that counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth
Amendment," then by proving he suffered prejudice due to counsel's deficient
performance, 

Strickland, 466 U.S. at 687

; see also 

Fritz, 105 N.J. at 52

.
Defendant must show by a "reasonable probability" that the deficient
performance affected the outcome of the proceeding. 

Fritz, 105 N.J. at 58

.
       A defendant's motion to withdraw a guilty plea is analyzed under the
four-factor test announced in State v. Slater, 

198 N.J. 145

, 157-58 (2009): "(1)
whether the defendant has asserted a colorable claim of innocence; (2) the
nature and strength of defendant's reasons for withdrawal; (3) the existence of
a plea bargain; and (4) whether withdrawal [will] result in unfair prejudice to
the State or unfair advantage to the accused."
       Not only are the tests different, so is our standard of review. We review
a trial court's decision in a plea-withdrawal appeal for abuse of discretion
because that court makes "qualitative assessments about the nature of a
defendant's reasons for moving to withdraw his plea and the strength of his
case and because the court is sometimes making credibility determinations
about witness testimony." State v. Tate, 

220 N.J. 393

, 404 (2015).
                                                                       A-4613-18T4
                                        3
(handgun), N.J.S.A. 2C:39-5(b) (count seven), and fourth-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(4) (count eight) 2 ; defendant was not given the

opportunity to obtain advice from an immigration attorney; and if he knew he

could be deported, he would not have pleaded guilty and proceeded to trial. 3

      Although bare assertions are "insufficient to support a [prima facie] case

of ineffectiveness," State v. Cummings, 

321 N.J. Super. 154

, 171 (App. Div.

1999), the record presents sufficient facts, viewed in the light most favorable

to defendant, to establish such a case, see State v. Preciose, 

129 N.J. 451

, 462-

63 (1992); see also R. 3:22-10(b).

      Defendant's Jamaican citizenship was evident throughout proceedings

before the trial court. It was a factor in setting defendant's bail and was noted

on the presentence report.

      Defendant answered question seventeen of the plea form, stating: he was

not a United States citizen; understood he had the right to seek legal advice

about a guilty plea's impact on his immigration status; and had discussed

2
  The judgment of conviction erroneously lists the charge and statute for count
eight as "UNLAW PURPOSE – FIREARMS" and "2C:39-4[a]" in both the
original and final charges. We direct the trial court, on remand, to enter a
corrected judgment.
3
  Defendant also claimed his plea counsel did not review discovery with him.
That argument was not briefed on appeal. We consider it abandoned. See
Sklodowsky v. Lushis, 

417 N.J. Super. 648

, 657 (App. Div. 2011).
                                                                        A-4613-18T4
                                       4
potential immigration consequences with counsel.      But he did not answer

questions asking if he would like an opportunity to discuss the consequences

with counsel and, importantly, "[h]aving been advised of the possible

immigration consequences and of [his] right to seek individualized legal

advice on [his] immigration consequences," if he still wanted to plead guilty.

The trial court did not explore the reason why these questions were not

answered. Moreover, the trial court did not make any inquiry of defendant

about immigration issues during the plea colloquy.

      These lacunas compel a remand to the trial court for an evidentiary

hearing to determine if defendant's allegations are true, and if he established

the ineffective assistance of his trial counsel—under both prongs of the

Strickland-Fritz   standard—recognizing,     "[t]he   weight   of   prevailing

professional norms supports the view that counsel must advise [a] client

regarding the risk of deportation." Padilla v. Kentucky, 

559 U.S. 356

, 367

(2010). "To provide effective assistance of counsel, post-Padilla, a defense

attorney is required to address, in some manner, the risk of immigration

consequences of a noncitizen defendant's guilty plea." 

Blake, 444 N.J. Super. at 295

.   A noncitizen defendant considering whether to plead guilty to an

offense must "receive[] correct information concerning all of the relevant


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                                     5
material consequences that flow from such a plea." State v. Agathis, 424 N.J.

Super. 16, 22 (App. Div. 2012). The failure to so advise renders counsel's

performance deficient. State v. Gaitan, 

209 N.J. 339

, 380 (2012); see also

Blake, 444 N.J. Super. at 296

.

      We discern no link, however, between plea counsel's suspension from

the practice of law, In re Roberts, 

231 N.J. 187

(2017), and defendant's

allegations. The suspension came some four months after defendant pleaded

guilty and was based on grounds unrelated to those advanced by defendant's

PCR petition.

      The trial court, without an evidentiary hearing, made credibility findings

in analyzing the Slater factors: "[T]he [c]ourt does not credit [defendant's]

current claim that he was not . . . advised of the immigration consequences of

his guilty plea." Findings on disputed issues should generally be made after a

court hears testimony, not on certifications. See 

Preciose, 129 N.J. at 462-63

;

State v. Gaitan, 

419 N.J. Super. 365

, 370 n.3 (App. Div. 2011), rev'd on other

grounds, 

209 N.J. 339

(2012); State v. Pyatt, 

316 N.J. Super. 46

, 51 (App. Div.

1998).   "Assessment of credibility is the kind of determination 'best made

through an evidentiary proceeding with all its explorative benefits, including




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                                      6
the truth-revealing power which the opportunity to cross-examine bestows.'"

State v. Porter, 

216 N.J. 343

, 347 (2013) (quoting 

Pyatt, 316 N.J. Super. at 51

).

      Defendant's assertion was not belied by his prior record testimony; the

trial court did not elicit any such testimony at the plea hearing. We, therefore,

direct this matter be heard on remand before a different judge. See R.L. v.

Voytac, 

199 N.J. 285

, 306 (2009) ("Because the trial court previously made

credibility findings, we deem it appropriate that the matter be assigned to a

different trial court."); see also R. 1:12-1(d).

      Despite the trial court's plea-retraction analysis, defendant did not seek

to withdraw his plea and did not endeavor to establish or critically explore the

Slater factors. We decline to consider the undeveloped issue. See State v.

Robinson, 

200 N.J. 1

, 19-20 (2008).

      Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.




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