STATE OF NEW JERSEY VS. SAURABH KOTHARI

We discern the salient facts and procedural history from

the record. Defendant was born in India, was admitted to the

United States in 1998, and is not a citizen of the United

States. On October 26, 2010, defendant was charged in various

summonses and a warrant with possession of a controlled

dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1);

manufacturing, distribution and/or dispensing heroin/cocaine

less than one-half ounce, N.J.S.A. 2C:35-5(b)(3); distributing,

dispensing, or possessing with intent to distribute a controlled

dangerous substance within 1000 feet of a school zone, N.J.S.A.

2C:35-7; use or possession with intent to use drug

paraphernalia, N.J.S.A. 2C:36-2; and possession of a weapon

while committing a controlled dangerous substance crime,

N.J.S.A. 2C:39-4.1(a).

On April 27, 2011, defendant waived his right to a grand

jury, agreed to proceed by way of an accusation, and pled guilty

to third-degree possession with intent to distribute an

imitation controlled dangerous substance, N.J.S.A. 2C:35-11(a),

pursuant to a negotiated plea agreement. The State agreed to

recommend that defendant be sentenced to a three-year

probationary term conditioned on defendant serving a 270-day

custodial term, which the State agreed could be served under

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house arrest. Under the plea agreement, the October 26, 2010

summonses and warrant were to be dismissed at defendant's

sentencing.

During the plea proceeding, defendant testified that he

reviewed the discovery materials the State provided. He stated

that he reviewed the plea form with his counsel, understood all

of the questions on the form, answered all of the questions

truthfully, and signed or initialed each page of the form.

Defendant testified that he was satisfied with his attorney's

services.

Defendant provided a factual basis for his guilty plea,

testifying that on October 26, 2010, law enforcement officers

entered his home with a search warrant and found a substance

which they believed to be cocaine, but which was later

determined to be imitation CDS. Defendant testified he

possessed the imitation CDS knowing that it was illegal to do

so, and that he intended to give it to a friend. The court

found there was an adequate factual basis for defendant's plea

and that he entered it knowingly and voluntarily.

On July 11, 2011, defendant was sentenced to a three-year

probationary term, conditioned upon 270 days of home

confinement, and payment of fines and penalties. Defendant was

ordered to forfeit property which had been seized by law

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enforcement during the execution of the search warrant.

Defendant did not file a direct appeal.

In October 2011, the United States Department of Homeland

Security commenced proceedings against defendant, charging that

he was subject to removal1 from the United States under 8

U.S.C.A. § 1227(a)(2)(A)(ii) because he had been "convicted of

two or more crimes involving moral turpitude, not arising out of

a single scheme of criminal misconduct." Defendant was

convicted of simple assault in Pennsylvania in 2005. The second

conviction cited as a basis for defendant's removal was his 2011

Camden County conviction for possession with intent to

distribute imitation CDS.

On April 3, 2013, defendant filed a PCR petition claiming

his plea counsel was ineffective and alleging the factual basis

for his plea did not establish the elements of the crime. He

asserted that his plea counsel failed to advise him of the

immigration consequences of his plea. In a July 1, 2014 order,

the court granted an evidentiary hearing limited to defendant's

claim that counsel was ineffective by failing to advise him of

the possibility of deportation as a result of his guilty plea.

1 "Removal" is the current statutory term for what was previously referred to as "deportation." State v. Gaitan, 209 N.J. 339, 345 n.1 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013)

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Steven Barsamian, an attorney who practices immigration law

and represents defendant in the removal proceedings, was

defendant's first witness at the hearing. Barsamian explained

that the removal charges against defendant are based on his two

convictions for crimes of moral turpitude and that a crime of

moral turpitude "is one that in and of itself is morally wrong."

Prior to his representation of defendant, Barsamian had

never represented anyone charged in a removal proceeding with an

imitation substance offense and was required to perform research

to determine if the offense constituted a crime of moral

turpitude under 8 U.S.C.A. § 1227(a)(2)(A)(ii). He opined that

the offense was a crime of moral turpitude because of what he

considered to be "the evil intent . . . on distributing what

[defendant] thought may have been a drug." Barsamian testified,

however, that there is no list of enumerated offenses that

delineate crimes of moral turpitude under 8 U.S.C.A.

§ 1227(a)(2)(A)(ii) and that it is "a broad umbrella."

Defendant also testified at the hearing. He retained plea

counsel after his arrest on October 26, 2011, and met with plea

counsel a few times in the county jail and one time at counsel's

office prior to entering into the plea agreement. His mother

was present at the meeting at plea counsel's office.

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Defendant told plea counsel that he was from India, was a

"green card holder," and had a prior conviction for simple

assault in Pennsylvania. Defendant said that plea counsel never

discussed with him the potential immigration consequences of his

plea and did not inform him that his convictions for simple

assault and possession of imitation CDS with intent to

distribute would result in deportation proceedings. Defendant

said that if he had been aware of the immigration consequences,

he would not have accepted the plea arrangement. Defendant

testified that counsel told him that he did not have to worry

about being deported.

Defendant also testified that prior to his plea proceeding

he never spoke to an immigration attorney about the immigration

consequences of his plea agreement. On cross-examination he

acknowledged that he knew Sujeet Mohanty, an immigration

attorney and a friend of his mother, but denied speaking to

Mohanty about the immigration consequences of his plea prior to

the plea proceeding. Defendant also stated that he did not

review discovery with plea counsel and did not know that the

substance the police seized from his house was not cocaine until

after he was sentenced.

According to defendant, he reviewed the plea form with his

counsel for only two minutes prior to the plea proceeding.

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Defendant testified, however, that the answers on the plea form

accurately reflected his responses, including the answers to

question 17, which reflected that defendant was not a United

States citizen, and that he understood that he may be deported

by virtue of his plea of guilty, he would be subject to

deportation/removal if his plea of guilty was to a crime

considered an "aggravated felony" under federal law, and he had

the right to seek legal advice on his immigration status prior

to entering a plea of guilty. Defendant stated he did "not

really" understand the questions he answered relating to

immigration, and he trusted his lawyer.

Defendant's plea counsel was called as a witness by the

State and testified he met with defendant and his mother on more

than one occasion in his office and that defendant advised him

that he had a prior conviction in Pennsylvania. Plea counsel

recalled that defendant and his mother expressed concern over

the possibility of deportation and defendant's mother stated

that defendant's green card had expired.

Plea counsel acknowledged that he knew "virtually nothing"

about immigration law, did not know if possession with intent to

distribute imitation CDS was a crime of moral turpitude, and did

not know that, because of defendant's guilty plea, defendant

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might be deemed to have two convictions for crimes of moral

turpitude that could result in his removal.

Plea counsel had been provided with Mohanty's business card

and understood Mohanty was defendant's attorney and was

simultaneously representing him. Plea counsel spoke with

Mohanty multiple times about defendant's charges and the effect

they might have on his immigration status. He could not

remember if he spoke to Mohanty about defendant pleading guilty

to possession with intent to distribute imitation CDS, and never

spoke to Mohanty about defendant's final plea agreement or

inquired about the immigration consequences of the agreement.

Plea counsel did not know if defendant spoke to Mohanty

prior to entering the guilty plea. Plea counsel testified he

never told defendant that he did not have to worry about being

deported. Plea counsel met with defendant prior to the plea

proceeding, reviewed each question on the plea form with

defendant, and recorded the answers provided by defendant on the

form.

Mohanty testified that he is an immigration attorney and is

good friends with defendant's parents. Mohanty was approached

by defendant and his parents after defendant's arrest, but did

not provide advice directly to defendant regarding the criminal

charges because Mohanty learned that defendant was already

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represented by plea counsel. Mohanty represented defendant's

parents in their attempt to obtain the return of property that

was seized by the police during the search of their home that

resulted in defendant's charges.

Mohanty never spoke directly to defendant about the

criminal charges or plea agreement. He was, however, contacted

by plea counsel and spoke with plea counsel two or three times

about defendant's immigration issues, including once during a

meeting at the Camden County Courthouse. Mohanty told plea

counsel that if defendant was convicted of the original charges

against him, he would be deported from the country. He also

advised plea counsel that defendant's "new" charge constituted a

crime of moral turpitude but did not identify the "new" charge

or the manner in which he reached the conclusion.

On September 8, 2014, the court rendered an oral decision

and entered an order denying defendant's PCR petition. The

court found that defendant was not a credible witness because

portions of his testimony and statements in his affidavit were

contradicted by his testimony during the plea proceeding. The

court found that the testimony of plea counsel, Barsamian, and

Mohanty was credible.

The court found that defendant and his mother met with plea

counsel on at least one occasion in counsel's office, discussed

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defendant's immigration status, and defendant was aware there

were immigration consequences from his plea. The court also

found that either defendant or his mother provided Mohanty's

contact information to plea counsel because defendant's mother

had retained Mohanty, an immigration attorney, to address the

forfeiture issues. The court further found that defendant had

access to Mohanty and could have spoken to him regarding

immigration issues at any time.

The court found no credible evidence that plea counsel

provided incorrect advice to defendant regarding the immigration

consequences of his plea. The court also found that defendant

had access to an immigration attorney, Mohanty, and was aware

there were potential immigration consequences from his plea, but

found it incredible that defendant would not have spoken to

Mohanty or have his mother speak to Mohanty about the

consequences.

The court noted that plea counsel did not have immigration

expertise and concluded that plea counsel would have so advised

defendant. The court found that defendant's responses to

question 17 on the plea form confirmed that he had been advised

by plea counsel he may be deported by virtue of his plea and

understood he had a right to confer with immigration counsel.

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Based upon its findings of fact, the court concluded that

plea counsel did not misadvise defendant regarding the

immigration consequences of his plea and fulfilled his

constitutional obligation to provide effective assistance of

counsel by informing defendant that he may be deported as a

result of his plea and of his right to confer with immigration

counsel. The court also rejected defendant's contention that

there was an inadequate factual basis for his guilty plea.2 This

appeal followed.

On appeal, defendant argues:

POINT I:

[The court] erred in not finding ineffective assistance because [plea counsel] neither identified deportation consequences for his client nor referred him to an immigration attorney in compliance with State v. Gaitan.

POINT II:

[The court] erred in [not] finding ineffective assistance under Padilla v. Kentucky because [plea counsel] failed to thoroughly investigate Mr. Kothari's immigration status.

2 Defendant does not challenge on appeal the PCR court's rejection of his contention that there was an inadequate factual basis for his plea of guilty to possession with intent to distribute imitation CDS, N.J.S.A. 2C:35-11(a). We therefore do not consider the issue.

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II.

We review the legal conclusions of a PCR court and mixed

questions of fact and law under the de novo standard of review.

State Harris, 181 N.J. 391, 420 (2004), cert. denied, 545 U.S.

1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where an

evidentiary hearing has been held, we accord deference "[i]n

reviewing a PCR court's factual findings based on live

testimony" and should not disturb "the PCR court's findings that

are supported by sufficient credible evidence in the record."

State v. Pierre, 223 N.J. 560, 576 (2015) (quoting State v.

Nash, 212 N.J. 518, 540 (2013)).

The Sixth Amendment to the United States Constitution and

Article I, Paragraph 10 of the New Jersey Constitution guarantee

that a defendant in a criminal proceeding has the right to the

assistance of counsel in his defense. The right to counsel

includes "the right to the effective assistance of counsel."

Nash, supra, 212 N.J. at 541 (quoting Strickland v. Washington,

466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692

(1984)).

In Strickland, the Court established a two-part test, later

adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58

(1987), to determine whether a defendant has been deprived of

the effective assistance of counsel. Strickland, supra, 466 U.S.

A-1009-14T3 13

at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the

first prong of the Strickland standard, a petitioner must show

that counsel's performance was deficient. It must be

demonstrated that counsel's handling of the matter "fell below

an objective standard of reasonableness" and that "counsel made

errors so serious that counsel was not functioning as the

'counsel' guaranteed the defendant by the Sixth Amendment."

Ibid.

Under the second prong of the Strickland standard, a

defendant "must show that the deficient performance prejudiced

the defense." Ibid. There must be a "reasonable probability

that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694, 104 S. Ct. at

2068, 80 L. Ed. 2d at 698. In the context of a PCR petition

challenging a guilty plea based on the ineffective assistance of

counsel, the second prong is established when the defendant

demonstrates a "reasonable probability that, but for counsel's

errors, [the defendant] would not have pled guilty and would

have insisted on going to trial." State v. Nuñez-Valdéz, 200

N.J. 129, 139 (2009) (alteration in original) (quoting State v.

DiFrisco, 137 N.J. 434, 457 (1994)).

A petitioner must establish both prongs of the Strickland

standard in order to obtain a reversal of the challenged

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conviction. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at

2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 52; Nash,

supra, 212 N.J. at 542. "With respect to both prongs of the

Strickland test, a defendant asserting ineffective assistance of

counsel on PCR bears the burden of proving his or her right to

relief by a preponderance of the evidence." Gaitan, supra, 209

N.J. at 350 (2012) (citing State v. Echols, 199 N.J. 344, 357

(2009); State v. Goodwin, 173 N.J. 583, 593 (2002)). A failure

to satisfy either prong of the Strickland standard requires the

denial of a petition for PCR. Strickland, supra, 466 U.S. at

700, 104 S. Ct. at 2071, 80 L. Ed. 2d at 702.

In the context of plea agreements of non-citizen

defendants, the performance of plea counsel is deficient under

the first prong of the Strickland standard where counsel

"provides false or misleading information concerning the

deportation consequences of a plea of guilt." Nuñez-Valdéz,

supra, 200 N.J. at 138. In addition, in Padilla v. Kentucky,

559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (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."3 State v. Blake, 444

3 The holding in Padilla applied prospectively, and is applicable to defendant's plea here. Gaitan, supra, 209 N.J. at 380.

A-1009-14T3 15

N.J. Super. 285, 295 (App. Div. 2016) (citing Padilla, supra,

559 U.S. at 367, 130 S. Ct. at 1482, 176 L. Ed. 2d at 294). The

Padilla Court created a "two-tiered analytical structure for

assessing the duty of effective assistance," which "depend[s] on

the certainty of immigration consequences flowing from the

plea." Gaitan, supra, 209 N.J. at 356, 380.

"[I]mmigration law is often complex, and the consequences

of a conviction are often far from clear." Blake, supra, 444

N.J. Super. at 295 (citing Padilla, supra, 559 U.S. at 369, 130

S. Ct. at 1483, 176 L. Ed. 2d at 295-96). In circumstances

where "the terms of the relevant immigration statute are

succinct, clear, and explicit in defining the removal

consequence[s]," then an attorney is obliged to be "equally

clear." Padilla, supra, 559 U.S. at 368-69, 130 S. Ct. at 1483,

176 L. Ed. 2d at 295-96. Counsel's failure "to point out to a

noncitizen client that he or she is pleading to a mandatorily

removable offense," constitutes "deficient performance of

counsel." Blake, supra, 444 N.J. Super. 285 at 296 (quoting

Gaitan, supra, 209 N.J. at 380).

Where "the deportation consequences of a particular plea

are unclear or uncertain . . . a criminal defense attorney need

do no more than advise a noncitizen client that pending criminal

charges may carry a risk of adverse immigration consequences."

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Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed.

2d at 296. Where "removal is not 'mandated' in the sense that a

state offense is not identified on published lists of offenses

equating to aggravated felonies or like mandatorily removable

offenses, counsel must highlight for noncitizen clients that

entering a guilty plea will place them at risk of removal" and

advise clients to seek immigration advice. Gaitan, supra, 209

N.J. at 381; see also Blake, supra, 444 N.J. Super. at 301

("[W]here the law is 'highly complex and not capable of being

reduced to any clear, succinct, or certain answer,' an attorney

may fulfill his duty by conveying to his client that the

immigration consequences of his plea are uncertain." (quoting

State v. Telford, 420 N.J. Super. 465, 469 (App. Div. 2011),

certif. denied, 209 N.J. 595 (2012))).

We are convinced that defendant failed to sustain his

burden of proving by a preponderance of the evidence that his

plea counsel's performance was deficient under the first prong

of the Strickland standard. The credible evidence in the record

supports the court's finding that plea counsel did not provide

misleading advice to defendant regarding the immigration

A-1009-14T3 17

consequences of his plea.4 Nuñez-Valdéz, supra, 200 N.J. at 139

40.

Moreover, the credible evidence supports the court's

conclusion that PCR counsel provided constitutionally effective

assistance by advising defendant that he may be deported and

that he had the opportunity to confer with immigration counsel.

Defendant testified that he conferred with PCR counsel prior to

the entry of his plea and provided affirmative responses to the

questions on the plea form confirming that he had been advised

that he may be deported and had the opportunity to confer with

immigration counsel.

Defendant's deportation proceedings are based on the charge

that he was "convicted of two or more crimes involving moral

turpitude." 8 U.S.C.A. § 1227(a)(2)(A)(ii). The crime of

possession with intent to distribute imitation CDS, N.J.S.A.

2C:35-11(a), is not identified in the statute as a "crime of

moral turpitude" and is not on any published list defining it as

a crime of moral turpitude under 8 U.S.C.A. § 1227(a)(2)(A)(ii).

4 PCR counsel denied advising defendant that he would not be deported. Although defendant testified to the contrary, we defer to the PCR court's determination that PCR counsel's testimony was credible and defendant's testimony was not. See State v. L.A., 433 N.J. Super. 1, 17 (App. Div. 2013) ("When reviewing a PCR court's determination, we generally defer to the court's factual findings, including credibility determinations, if they are supported by 'adequate, substantial and credible evidence.'" (quoting Harris, supra, 181 N.J. at 415)).

A-1009-14T3 18

Indeed, defendant's immigration counsel Barsamian testified that

he has practiced immigration law since 1976, but was required to

perform research to determine if an offense under N.J.S.A.

2C:35-11(a) might properly be deemed a crime of moral turpitude.5

In Telford, supra, 420 N.J. Super. at 467, a noncitizen

defendant pled guilty to third-degree endangering the welfare of

a child and faced deportation. We affirmed the denial of the

defendant's ineffective assistance of counsel claim alleging

that his attorney was ineffective for "only advis[ing] that he

'might' rather than 'would' be deported" as a result of his

guilty plea. Ibid. We were satisfied that the deportation

consequences for the crime to which the defendant pled guilty

were "too complex to require more specific advice," and that the

defendant's counsel "was not ineffective in allowing him to

plead guilty without a more definitive statement about the

deportation consequences of his plea." Id. at 467, 479.

Here, defendant did not plead guilty to a crime where

deportation was mandated. He pled guilty to an offense that was

"not identified on published lists of offenses equating to

aggravated felonies or like mandatorily removable offenses,"

5 Mohanty testified that in his view, defendant's "new" charge constituted a crime of moral turpitude, but did not identify the charge, explain the basis for his opinion, or identify any clear or explicit statutory authority for his opinion.

A-1009-14T3 19

Gaitan, supra, 209 N.J. at 381, and the deportation consequences

were not "truly clear." Padilla, supra, 559 U.S. at 369, 130 S.

Ct. at 1483, 176 L. Ed. 2d at 296. As a result, we are

satisfied the PCR court correctly concluded that PCR counsel's

duty to defendant was "limited" and counsel satisfied that duty

by advising defendant "that pending criminal charges may carry a

risk of adverse immigration consequences." Gaitan, supra, 209

N.J. at 380 (quoting Padilla, supra, 599 U.S. at 357, 130 S. Ct.

at 1477, 176 L. Ed. 2d at 289); cf. Padilla, supra, 559 U.S. at

369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296 (finding that the

immigration statute was "succinct, clear, and explicit in

defining the removal consequences" of the defendant's conviction

for a controlled dangerous substance offense because 8 U.S.C.A.

§ 1227(a)(2)(B)(i) expressly "commands removal for all

controlled substances convictions except for the most trivial of

marijuana possession offenses"). Defendant therefore did not

prove by a preponderance of the evidence that plea counsel's

performance was deficient under the first prong of the

Strickland standard.

We are also satisfied that defendant did not sustain his

burden of establishing the second prong of the Strickland

standard because he failed to present "sufficient evidence to

show 'a reasonable probability that, but for counsel's errors,

A-1009-14T3 20

[he or she] would not have pleaded guilty and would have

insisted on going to trial.'" State v. O'Donnell, 435 N.J.

Super. 351, 376 (App. Div. 2014) (quoting Hill v. Lockhart, 474

U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210

(1985)). Defendant was required to demonstrate that "had he

been properly advised, it would have been rational for him to

decline the plea offer and insist on going to trial and, in

fact, that he probably would have done so." State v. Maldon, 422

N.J. Super. 475, 486 (App. Div. 2011) (citing Padilla, supra,

559 U.S. at 372, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297).

Defendant did not offer any evidence beyond his bare

conclusory assertion that he would not have pled guilty had he

known of the immigration consequences. Standing alone, this

does not demonstrate a reasonable probability that but for

counsel's alleged deficiency defendant would not have accepted

the plea bargain. See State v. Cummings, 321 N.J. Super. 154,

170 (App. Div.) (holding "a petitioner must do more than make

bald assertions that he was denied the effective assistance of

counsel"), certif. denied, 162 N.J. 199 (1999).

Defendant's failure to prove both prongs of the Strickland

standard by a preponderance of the evidence required the denial

of his PCR petition. Defendant's remaining arguments are without sufficient

merit to warrant discussion in a written opinion. Affirmed.