On appeal from Superior Court of New Jersey, Law Division, Bergen County.
Before Judges Conley and Lefelt.
The opinion of the court was delivered by: Lefelt, J.s.c. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
George Garcia has been indefinitely incarcerated in the Mercer County Correctional Center because Cuba does not accept deported aliens from America. Garcia appeals from the denial of his Post Conviction Relief (PCR) application to set aside his guilty plea, which had been the cause of his deportation. Garcia claims that his PCR application should have been granted because he was denied effective assistance of counsel when his lawyer inaccurately advised him that he would not be deported if he pled guilty. Alternatively, he argues that he should have been granted a hearing to explore whether his defense attorney improperly advised him about the deportation consequences of pleading guilty. We vacate the order denying post conviction relief and remand for a hearing on whether Garcia was denied effective assistance of counsel.
Garcia came to this country when he was 6 years old. He graduated from high school in New Jersey, has a social security number and an employment record in this State. He speaks English fluently without any accent. He had anglicized his name from Jorge to George, but he was a permanent resident alien and not a citizen.
On July 5, 1994, Garcia pled guilty to third degree possession of cocaine on or near school property, in violation of N.J.S.A. 2C:35-7; second degree possession of cocaine, in violation of N.J.S.A. 2C:35-5a(1)b(2); fourth degree attempt to commit theft by unlawful taking, in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-3; third degree possession of cocaine, in violation of N.J.S.A. 2C:35-10a(1); and third degree burglary, in violation of N.J.S.A. 2C:18-2.
He was sentenced on September 16, 1994, pursuant to a plea bargain, to an aggregated eleven years in prison (one year less than the plea bargain) with three years of parole ineligibility. On August 27, 1995, while Garcia was in prison, he filed a pro se motion for reconsideration of his sentence, seeking entry into an in-patient drug treatment program. This motion was denied on December 4, 1995.
Garcia was paroled from New Jersey State Prison in the summer of 1997. Before he was released, however, the Immigration and Naturalization Service (INS) served him with removal papers and took him into custody.
On December 9, 1997, Garcia filed a verified petition for Post Conviction Relief. Thereafter, the PCR Judge on February 23, 1998 denied Garcia's application. On the same date, INS ordered Garcia removed from this country and returned to the nation of his origin. Because Cuba does not accept deported aliens from this country, however, Garcia remains incarcerated indefinitely at the Mercer County Correctional Center.
The plea form which Garcia initialed contained the following question number 17: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?" This question was answered "N/A." Garcia asserts that his defense attorney advised him that despite his status in this country, he would not be subject to deportation and that's why "N/A" was circled on the plea form.
Garcia's defense attorney certified that he had "very little specific recollection of Discussions" with Garcia about the plea form. He indicated that it was his practice to ask defendants whether they are citizens. If any defendant answers that he or she is not a citizen, he customarily circles "yes" on the plea form. He further certified that "[a]lthough it is difficult to recall, I am confident based on what I do recall, Mr. Garcia never expressed that he was an illegal Cuban refugee." Because "N/A" was circled on the form, the defense attorney believed that Garcia told him "that he was a citizen."
In State v. Reid, 148 N.J.Super. 263 (App. Div. 1977), certif. den. 75 N.J. 520 (1977), this court refused to vacate a guilty plea solely because a defendant lacked understanding of the deportation consequences of his plea. Post plea deportation consequences were believed to be collateral and unrelated to the penal consequences of any plea. Id. 148 N.J.Super. at 266. In State v. Chung, 210 N.J.Super. 427 (App. Div. 1986) we observed that "it is not the present responsibility of a New Jersey Judge to advise a defendant of federal deportation consequences at the time of the taking of the guilty plea." Id. 210 N.J.Super. at 433.
In State v. Heitzman, 107 N.J. 603 (1987) the Supreme Court affirmed substantially on the basis of the majority opinion in the Appellate Division and quoted our holding that "defendant need be informed only of the penal consequences of his plea and not the collateral consequences, such as loss of public or private employment, effect on immigration status, voting rights, possible auto license suspension, possible dishonorable discharge from the ...