State of New Jersey v. Momodu F. Rogers

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0623-24

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MOMODU F. ROGERS a/k/a

MOMODU FES ROGERS,

and MOMODO ROGERS,

Defendant-Appellant.

Submitted September 23, 2025 – Decided October 17, 2025

Before Judges Chase and Augostini.

On appeal from the Superior Court of New Jersey, Law

Division, Middlesex County, Indictment Nos. 16-02-

0188, 16-04-0549, 18-02-0242, 18-12-1612 and 19-03-

0497.

Jennifer N. Sellitti, Public Defender, attorney for

appellant (Monique Moyse, Designated Counsel, on the

briefs).

Yolanda Ciccone, Middlesex County Prosecutor,

attorney for respondent (Hudson E. Knight, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a Law Division order denying his petition for

post-conviction relief ("PCR") without an evidentiary hearing. We affirm in part

and remand in part.

I.

In 2016, a Middlesex County Grand Jury returned Indictment Numbers

16-02-0188 and 16-04-0549, each charging defendant with two counts: third-

degree burglary, N.J.S.A. 2C:18-2a(1) and third-degree theft by unlawful taking,

N.J.S.A. 2C:20-3a. In June 2016, defendant pled guilty to burglary on Indictment

Number 16-02-0188 and theft on Indictment Number 16-04-0549. Pursuant to

the plea agreement, he was sentenced to concurrent five-year periods of

probation.

While on probation, defendant was indicted on three new Middlesex cases.

In 2017, a grand jury returned Indictment Number 18-02-0242, again charging

defendant with third-degree burglary and theft. In 2018, a grand jury returned

Indictment Number 18-12-1612, charging defendant with third-degree burglary

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and attempted theft. In 2019, a grand jury returned Indictment Number 19-03-

0497, charging defendant with third-degree burglary and attempted theft. 1

Based on the three new indictments, defendant was charged with violating

his probation ("VOP"). In May 2019, defendant, represented by counsel, was

tried on the VOPs. The State presented witness testimony and video evidence.

He was found guilty by the court and sentenced to concurrent three-year terms

of imprisonment.

Thereafter, in July, defendant, represented by the same VOP counsel, pled

guilty to the theft count of Indictment Number 18-02-0242, and the burglary

counts of Indictment Numbers 18-12-1612 and 19-03-0497. On each count,

defendant was sentenced to four-year terms of imprisonment, concurrent to each

other, and consecutive to the sentences on the VOPs. The remaining counts were

dismissed.

We affirmed all the sentences pursuant to an Excessive Sentence Oral

Argument calendar. State v. Rogers, A-1655-19 (App. Div. June 30, 2020) (slip

op. at 1); State v. Rogers, A-1660-19 (App. Div. June 30, 2020) (slip op. at 1).

1

All five of the cases involved defendant breaking into and either stealing or

attempting to steal from his former employer.

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Defendant then filed a timely petition for PCR. He argued his counsel

rendered ineffective assistance of counsel ("IAC") for failing to apply him to

Recovery Court2. He also claimed he was not informed about immigration

consequences before he entered his guilty plea to the three subsequent

indictments.

After considering the parties' written submissions and oral arguments, the

PCR court rendered a written decision and concluded defendant did not satisfy

the two-prong test of Strickland3 to find IAC. Notwithstanding counsel's

assertion that she perceived herself to be ineffective, the PCR court found she

provided defendant effective representation.

The PCR court also found defendant failed to establish that he was

prejudiced by his counsel's alleged deficient representation; specifically, because

defendant had been advised of his potential immigration consequences at the time

of his initial plea. Moreover, the court determined that any immigration

consequences were as a result of the initial plea, not because of the VOP. Finally,

the PCR court concluded that because defendant failed to establish a prima facie

claim of IAC, he was not entitled to an evidentiary hearing.

2

Effective January 1, 2022, Drug Court was renamed Recovery Court.

3

Strickland v. Washington, 466 U.S. 668, 687 (1984).

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Defendant raises the following point for our consideration on appeal:

[DEFENDANT] IS ENTITLED TO RELIEF OR AN

EVIDENTIARY HEARING ON HIS CLAIM THAT

HIS ATTORNEY RENDERED INEFFECTIVE

ASSISTANCE OF COUNSEL DURING PLEA

NEGOTIATIONS AND AT SENTENCING,

LEADING TO HIS DEPORTATION.

II.

"Post-conviction relief is New Jersey's analogue to the federal writ of

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

Preciose, 129 N.J. 451, 459 (1992)). "[PCR] provide[s] a built-in 'safeguard that

ensures that a defendant was not unjustly convicted.'" State v. Nash, 212 N.J.

518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). The

Sixth Amendment to the United States Constitution and Article I, Paragraph 10

of the New Jersey Constitution guarantee a defendant in a criminal proceeding

"'the right to the effective assistance of counsel.'" Nash, 212 N.J. at 541 (quoting

Strickland, 466 U.S. at 686). Our review is deferential to a PCR court's factual

findings which are supported by sufficient credible evidence. State v. Gideon,

244 N.J. 538, 551 (2021) (citing Nash, 212 N.J. at 540). Review of a PCR court's

interpretation of law is de novo. Nash, 212 N.J. at 540-41.

IAC claims must satisfy the two-prong test set forth in Strickland, 466

U.S. at 687, and adopted by the New Jersey Supreme Court in State v. Fritz, 105

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N.J. 42, 57-58 (1987). "First, the defendant must show that counsel's

performance was deficient." State v. Gideon, 244 N.J. 538, 550 (2021) (quoting

Strickland, 466 U.S. at 687). The defendant must prove counsel's handling of

the matter "fell below an objective standard of reasonableness" and "counsel

made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at

687-88. To satisfy the second prong, "'[t]he defendant must show that there is

a reasonable probability that, but for counsel's unprofessional errors, the result

of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome. '" State v.

Gideon, 244 N.J. at 550-51 (alteration in original) (quoting Strickland, 466 U.S.

at 694). "Prejudice is not to be presumed." Id. at 551 (citing Fritz, 105 N.J. at

52). "The defendant must 'affirmatively prove prejudice.'" Ibid. (quoting

Strickland, 466 U.S. at 693).

To establish a prima facie claim of IAC during the pretrial process, a

defendant must show that counsel's inadequacies led him to forgo a trial-

alternative that resulted in more severe consequences. Lafler v. Cooper, 566

U.S. 156, 168 (2012). In deciding if a defendant has established a prima facie

claim, courts must "view the facts in the light most favorable to a defendant ."

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State v. Preciose, 129 N.J. at 463. The Preciose Court further stated that a

defendant usually needs a hearing to establish a record to support his claim of

ineffective assistance of counsel. Ibid.

When a guilty plea is involved, a defendant must show "'that there is 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)). "In other words, 'a petitioner must

convince the court that a decision to reject the plea bargain would have been

rational under the circumstances.'" State v. Aburoumi, 464 N.J. Super. 326, 339

(App. Div. 2020) (quoting State v. O'Donnell, 435 N.J. Super. 351, 371 (App.

Div. 2014)). "The petitioner must ultimately establish the right to PCR by a

preponderance of the evidence." O'Donnell, 435 N.J. Super. at 370.

This is because there is a strong presumption counsel "rendered adequate

assistance and made all significant decisions in the exercise of reasonable

professional judgment." Strickland, 466 U.S. at 690. Therefore, counsel's errors

"even if professionally unreasonable" will not require setting aside a judgment

if they had no effect on the judgment. Id. at 691. A defendant must demonstrate

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"how specific errors of counsel undermined the reliability of the finding of

guilt." United States v. Cronic, 466 U.S. 648, 659 n.26 (1984).

A defendant is entitled to an evidentiary hearing if they present a prima

facie case supporting PCR, the court determines there are material issues of fact

that cannot be resolved based on the existing record, and the court finds an

evidentiary hearing is required to resolve the claims presented. R. 3:22-10(b);

see also State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)); see also

State v. Marshall, 148 N.J. 89, 158 (1997). When a PCR court does not hold an

evidentiary hearing, our review is de novo. State v. Harris, 181 N.J. 391, 421

(2004). If a prima facie case is made, a hearing must be held; the court should

not presume the outcome of the hearing. State v. Russo, 333 N.J. Super. 119,

140 (App. Div. 2000). On appeal, the court analyzes a PCR judge's decision to

deny a hearing on an abuse of discretion standard. State v. Brewster, 429 N.J.

Super. 387, 401 (App. Div. 2013).

III.

On appeal, defendant argues that his constitutional rights were violated

because his attorney failed to properly advise him of his immigration

consequences during the VOP process and subsequent plea negotiations. He also

asserts that counsel was ineffective for not applying him to Recovery Court at

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his VOP. Defendant asserts this constitutes a prima facie showing of IAC under

Strickland, and thus, requests that the case be remanded for an evidentiary

hearing to develop these claims further.

A.

First, defendant contends IAC for not discussing immigration

consequences with him during the sixth month pre-VOP hearing process.

Specifically, defendant argues he was a legal permanent resident and did not

know if he was sentenced to over one-year imprisonment he became deportable.

See 8 U.S.C. § 1101(a)(43)(G) (sentence of over one year imprisonment is an

aggravated felony, making a defendant mandatorily deportable). We are not

persuaded.

The record reflects that regardless of whether counsel discussed

immigration consequences with defendant before his VOP trial, he already had

notice that his actions had immigration consequences. On his initial plea form,

defendant documented that: he was not a citizen; the plea may result in his

removal from the United States; he could seek individual immigration advice; he

had discussed the potential immigration consequences with his attorney; he

understood the consequences of violating his probation; and he still wanted to

plead guilty. Moreover, defendant acknowledged during his plea colloquy he

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was satisfied with his counsel's representation and that his attorney had

satisfactorily answered all his questions. For those reasons, defendant cannot

successfully assert that he did not know of his immigration consequences at the

time of his VOP.

Moreover, defendant, in his certification, never asserted that VOP trial

counsel, or his initial VOP counsel, failed to discuss immigration consequences

with him. He only stated that he did not know that a sentence exceeding one-

year made him a deportable aggravated felon. This is in contrast to a certification

provided by defendant from a senior attorney from trial counsel's office charged

with giving immigration advice to the other attorneys. That counsel stated that

she "had a pre-indictment advisal request on [defendant] from the attorney who

preceded [VOP trial counsel] in which I advised her on both the new charges and

any potential VOP." (emphasis added). Tellingly, defendant's prior counsel did

not provide an affidavit stating that they did not discuss defendant's immigration

consequences with him. Consequently, defendant has not established a prima

facie case that immigration consequences were not discussed with him.

Even if defendant had established that the immigration consequences were

not discussed with him, it is hard to imagine how counsel's alleged deficient

performance preceding the VOP trial prejudiced defendant under the second

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Strickland prong. At the VOP, there was no guilty plea. Rather, at trial, the State

proved defendant had violated probation by presenting the three new indictments

and witness testimony. 4 Based on the overwhelming credible evidence presented,

there was nothing counsel could have done at the VOP trial to change the court's

guilty finding. Further, as the VOP court summarized, it was the punishment,

not the VOP conviction, that caused the immigration issues. Accordingly, the

PCR court correctly rejected defendant's argument that, but for counsel's

unprofessional errors, the result of the proceeding would have been different .

B.

Defendant also asserts that he did not seek immigration advice prior to his

pleading guilty to the last three indictments. This is a bare assertion belied by

the record. On defendant's plea forms, he indicated that: he was not a citizen

but was a LPR (legal permanent resident); the plea may result in his removal

from the United States; he could seek individual immigration advice; he had

discussed the potential immigration consequences with his attorney; and he still

wanted to plead guilty.

4

Although defendant now challenges the evidence produced at the VOP, the

proper course would have been for him to appeal the guilty finding by direct

appeal. State v. McQuaid, 147 N.J. 464, 483 (1996) (explaining that Rule 3:22-

4 imposes a procedural bar to prevent claims from being raised on PCR that

reasonably could have been raised on direct appeal.)

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At sentencing, the trial court and counsel discussed the following:

THE COURT: He's likely to be deported as a result of

this.

COUNSEL: He is. [Prior counsel] did an immigration

consult for him. And, unfortunately, there was never

an agreement that was on the table that would not have

had immigration consequences. So at this point, he is

deportable. I guess [prior counsel] did try and work

something out for that, but it just never was possible.

….

COUNSEL: It does make him deportable, but there's

not a proceeding in place right now.

The record clearly reflects that defendant and counsel were aware of his

immigration consequences.

C.

Finally, defendant argues that counsel was ineffective for failing to

consider and apply him to Recovery Court. He states that had an application

been submitted: all of his cases would have been consolidated; he would have

been accepted; received appropriate treatment; and successfully completed

probation. Therefore, he asserts that he would not have been sentenced to prison

for more than one year and become deportable.

For Recovery Court, "[l]egal eligibility is a threshold question that must be

decided in all cases." State v. Harris, 466 N.J. Super. 502, 551 (2021). "Every

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candidate falls under one of two distinct and mutually exclusive tracks." Ibid.

"To determine legal eligibility, the trial court must first determine whether the

defendant is a Track One or Track Two candidate." Ibid. "A defendant is a Track

One candidate if, and only if, [they are] presently subject to the presumption of

imprisonment in N.J.S.A. 2C:44-1(d) or to a mandatory period of parole

ineligibility." Ibid.

"Track Two is reserved for drug dependent defendants who are not subject

to the statutory presumption of imprisonment or a mandatory term of parole

ineligibility." Id. at 525. "Those defendants may be admitted to Drug Court . . .

pursuant to the statutory authority of the court to impose a probationary sentence

under N.J.S.A. 2C:45-1." Ibid.

If defendant had applied to Recovery Court, he would have been a Track

Two candidate as the indictments at issue for him were not subject to a

presumption of imprisonment or a mandatory term of parole ineligibility.

Eligibility for Track Two is governed by the Recovery Court Manual which

provides ultimate discretion to the judge, who should give serious consideration

to the prosecutor's recommendation. Admin. Off. of the Cts., N.J. Statewide

Recovery Court Manual (Jan. 2022) 3-4. Factors to consider for Track Two

eligibility include: a review of the original complaint, state rap sheets, probation

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records, presentence investigation reports, and other sources of criminal history

information. Further, a recovery court prosecutor can recommend a legal

rejection if the applicant is a potential danger to the community. Id. at 16.

In support of his petition, defendant submitted a substance abuse

evaluation from a former Treatment Assessment Services for the Courts

("TASC") Evaluator which stated that he was, and continues to be, eligible for

Recovery Court. Defendant also submitted an expert report stating that at the

time of the offenses, he suffered from an alcohol use disorder. This contrasts

defendant's comments at the time of his original sentence to probation, where he

proclaimed that he did not drink, smoke, or use drugs.

The defendant and State disagree if defendant is currently clinically

eligible for Recovery Court. The State posits that defendant's expert report

opines that "[defendant] does not require substance abuse treatment at this

juncture, because he has already completed treatment and has been abstinent

from alcohol since 5/19/19." But, defendant believes, based on his TASC

expert, that he can still benefit from treatment if he is admitted into Recovery

Court.

If defendant proves he was clinically eligible for Recovery Court, the

question remains if he was legally eligible. To be legally eligible, the court

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would have to find that he was not a danger to the community. Per the Manual,

"[d]anger to the community means that the supervisory resources of recovery

court are not adequate to safely treat the defendant in the community at the

appropriate level of care." N.J. Statewide Recovery Court Manual, at 3-4. To

assess an applicant's potential danger, the Manual requires the court to analyze

factors. First, the court must consider Recovery Court's supervision capabilities.

Ibid. Second, the court must assess the type and degree of risk an applicant

poses if he or she had the benefit of appropriate addiction treatment. Ibid. Then,

the court must decide whether Recovery Court's supervision capabilities are

sufficient to mitigate the identified risk(s). Ibid.

Defendant contends that he was not a danger to the community and that

he would have been admitted into Recovery Court. However, the State asserts

that based on defendant's initial two indictments, his violation of probation, and

his commission of new offenses–involving the same facts and victim–strongly

indicate that he posed a danger to his community and thus, would not be

recommended for or admitted into Recovery Court.

Because these are material issues of fact that cannot be resolved based on

the existing record, a limited evidentiary hearing is required to resolve whether

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it was ineffective for his VOP counsel to refrain from applying him to Recovery

Court.

In determining whether defendant received IAC, on remand the PCR court

should decide: (1) if defendant had a substance abuse dependency that would

qualify him for Recovery Court; (2) could that dependency have been known by

his VOP counsel; (3) was there a connection between a dependency and

defendant's offenses; (4) did defendant pose a danger to the community that

could not adequately be treated by Recovery Court; and (5) if defendant would

have been accepted into Recovery Court, would he still be eligible.

To the extent we have not addressed any other arguments raised by

defendant, we are satisfied they are without sufficient merit to warrant further

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed in part, remanded in part. We do not retain jurisdiction.

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