On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
King, O'Brien and Simpson. The opinion of the court was delivered by King, P.J.A.D.
This case presents a claim that defense counsel was ineffective because he did not properly advise his client on the consequences of a guilty plea. On July 12, 1985 defendant Chung moved before the trial judge to withdraw a guilty plea to possession of marijuana with intent to distribute, on the basis that he had not been properly advised by trial counsel that a probable consequence of his August 30, 1982 guilty plea would be deportation. The motion was opposed by the State and denied by the trial judge.
This is the case history procedurally. On April 20, 1982 Chung was indicted by a Middlesex County Jury on four counts. The indictment charged him in the first count with possession of a controlled dangerous substance, contrary to N.J.S.A. 24:21-20a(4); the second count charged possession of a controlled
dangerous substance (CDS) with intent to distribute, contrary to N.J.S.A. 24:21-19a(1); the third count charged possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5b; the fourth count charged supplying false information to a police officer, contrary to N.J.S.A. 2C:28-4a.
On August 30, 1982 Chung entered a guilty plea before Judge Hamlin. Pursuant to a plea agreement, defendant entered a plea of guilty to count two of the indictment only. The remaining counts were dismissed and the maximum custodial exposure was set at five years. The plea agreement also allowed for appellate review of the trial judge's denial of Chung's suppression motion. R. 3:5-7(d).
On October 12, 1982 Chung was sentenced to eighteen months incarceration at the Middlesex County Adult Correction Center. The denial of defendant's suppression motion was affirmed by the Appellate Division. Chung has completely served his sentence in all respects.
On July 12, 1985 Chung moved to vacate his guilty plea on count two of the indictment on the ground that he had not been advised of possible deportation as a consequence of his plea. Chung sought to reform the plea agreement and asked permission to plead to a different count of the indictment and to be resentenced to time served. Chung's motion was denied on October 16, 1985. A motion to accelerate the disposition of this appeal was granted by this court.
These are the essential facts which led to the indictment, the plea agreement, and the subsequent motion for withdrawal of the guilty plea. Defendant is a non-resident immigrant. He was born in and is a citizen of Jamaica. He came to the United States ten years ago on a now-expired visitor's visa. He has at no time renewed his visitor status nor has he applied for residency status or citizenship.
On July 31, 1981 Chung was stopped in his automobile by a New Jersey State Trooper on the New Jersey Turnpike in Woodbridge Township. A search of the car uncovered 261.5
pounds of marijuana and a semiautomatic weapon. As noted, Chung was sentenced to and has served his 18-month term. Because of this conviction for possession of a CDS with the intent to distribute, Chung is presently the target of a deportation proceeding initiated by the Bureau of Immigration and Naturalization under 8 U.S.C.A. § 1251(a)(11) which states that deportation is a potential collateral consequence for aliens "convicted of a violation of . . . any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana. . . ."
Under New Jersey law, prior to accepting a guilty plea the judge must be satisfied that there is a factual basis for the plea and that the plea is made voluntarily with an understanding of the nature of the charge and the consequences of the plea. R. 3:9-2. After a plea has been accepted, a defendant's "claim to be relieved of its consequence must be weighed against the strong interests of the State in its finality." State v. Taylor, 80 N.J. 353, 362 (1979). Following sentencing, a motion to withdraw a guilty plea is only granted upon a showing of manifest injustice. R. 3:21-1. Moreover, where the plea is entered pursuant to a plea agreement, defendant's burden of establishing a plausible basis for vacation of his plea is heavier. State v. Rodriquez, 179 N.J. Super. 129, 136 (App.Div.1981).
Factors pertinent to the determination of whether a defendant may withdraw a guilty plea include: the materiality of the mistake or omission, the resulting prejudice to defendant, the guilt of defendant, and the manner of entry of the plea. State v. Rodriguez, 179 N.J. Super. at 135-136. "To be material a mistake must relate to the penal consequences of a plea. A mistake as to a collateral consequence, while it may have a significant effect upon a defendant, is not material." State v. Riggins, 191 N.J. Super. 352, 355 (Law Div.1983). The effect of defendant's plea on his immigration status has been considered a collateral consequence. State v. Reid, 148 N.J. Super. 263 (App.Div.), cert. den. 75 N.J. 520 (1977). See also United
States v. Sambro, 454 F.2d 918 (D.C.Cir.1971); United States v. Parrino, 212 F.2d 919 (2nd Cir.1954), cert. den. 348 U.S. 840, 75 S. Ct. 46, 99 L. Ed. 663 (1954); Tafoya v. State, 500 P. 2d 247 (Alaska Sup.Ct.1972). Manifest injustice is the general standard for withdrawal of a plea under R. 3:21-1. We are convinced ...