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Superior Court of New Jersey, Appellate Division
December 17, 2018, Submitted; March 19, 2019, Decided
DOCKET NO. A-0391-17T3
Defendant Kevin O. Nugent appeals from a Law Division order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Facing deportation due to his guilty plea to a drug offense, defendant alleged his trial counsel provided ineffective assistance by failing to advise him that his plea could result in his deportation. He thus contended that he should be allowed to withdraw his guilty plea due to such lack of advice.
We disagree with the trial judge's determination that defendant's PCR should be barred under Rule 3:22-4. Because the alleged ineffective assistance claim involved facts outside the trial record, his claim could not have been considered on direct appeal. Nonetheless, we affirm because we agree with the judge, who despite finding the petition [*2] procedurally deficient, addressed the merits of defendant's PCR claim and decided the PCR claim should also be dismissed because defendant never advised counsel that he was not a United States citizen. In addition, we affirm the judge's finding that defendant failed to satisfy the Slater1 factors to warrant a withdrawal of his guilty plea.
The factual background to the underlying offense is brief. Post Office officials had discovered between two to six pounds of marijuana in a package that was addressed and mailed to co-defendant Larohonda Johnson at her former employer's office. The police were notified and waited for Johnson to pick up the package. Defendant, Johnson, and another person were arrested after defendant drove them to pick up the package.
Defendant was charged in a three-count indictment with third-degree possession of controlled dangerous substances (CDS) — phencyclidine, N.J.S.A. 2C:35-10(a)(1); fourth-degree possession of CDS — marijuana, N.J.S.A. 2C:35-10(a)(3); and third-degree possession with intent to distribute CDS — marijuana, N.J.S.A. 2C:35-5(b)(11). Rather than go to trial, he pled guilty to the intent to distribute offense.
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2019 N.J. Super. Unpub. LEXIS 613 *; 2019 WL 1276438
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN O. NUGENT, Defendant-Appellant.
Notice: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.
PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.
Subsequent History: Certification denied by State v. Nugent, 2019 N.J. LEXIS 1245 (N.J., Sept. 23, 2019)
Prior History: [*1] On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 14-08-1395.
guilty plea, deportation, ineffective, us citizen, marijuana, withdraw, package, advise