The opinion of the court was delivered by: Barisonek, J.S.C.
After defendant who was resident alien pled guilty to a third-degree crime and was sentenced, defendant applied for post-conviction relief, alleging that he was never advised of possibility of deportation and that counsel was ineffective. The Superior Court, Law Division, Union County, Criminal Action, Barisonek, J.S.C., held that plea counsel's failure to address issue of deportation was ineffective assistance of counsel.
The defendant entered a plea of guilty to a third degree crime and was sentenced pursuant to the plea agreement. The defendant, after completion of his sentence, decided to travel abroad. When he returned to the United States, he was detained as a resident alien for deportation purposes due to the above conviction. The defendant then filed a post-conviction relief application seeking to, withdraw from his plea agreement. The defendant alleged that he was never advised as to the consequent possibility of deportation and that his attorney was ineffective in her representation.
A factual hearing was conducted which disclosed that at the time of arrest, the defendant revealed that he was not a citizen of the United States, that he was born in Portugal and was a resident alien for over thirty years. This information was provided to the Criminal Division Manager's Office, the prosecution and to the defense attorney through the Uniform Defendant Intake Report. Testimony was also offered which showed that the defendant could understand English, but had difficulty reading and writing.
The prior defense attorney testified at the time of entry of the plea that she completed the plea form outside the presence of the defendant without going over each question with the defendant. The attorney assumed the defendant read the plea form because he initialed each page and signed the last page. The sister of the defendant, who was in court at the time the plea forms were completed, testified that the defendant did not read the forms, nor did anyone else read them to the defendant. When the plea form was completed by the attorney, question number 17, which deals with the deportation issue, was marked N/A, not applicable. When the attorney was asked why she circled "not applicable," she indicated that she did not know the defendant was a resident alien and faced deportation. The plea transcript showed that the defendant said he had difficulty reading and writing English, that his attorney read the plea form to him and that he understood it and signed it.
It was found, based on the attorney's testimony and the sister's testimony, that the defendant did not read the form, it was not read to him, and no one discussed deportation with the defendant.
In the seminal case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court announced a two-part test to determine whether a defendant received ineffective assistance of counsel. The Court, formulating the test, stated:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. Id. at 687, 104 S. 0. 2052.
The Court also explained that no specific test could be formulated to uncover whether counsel was deficient. The Court did note, however, that there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id at 688-89, 104 S.Ct. 2052. Further, ' the Court held 105concerning the second prong of the test, that prejudice must be actually proved by showing that there is 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. 2052. The Court defined a reasonable probability as "a probability sufficient to undermine confidence in the outcome." Id.
In United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the United States Supreme Court held that in some ineffective assistance of counsel cases, prejudice to the defendant may be presumed when there exists "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." See also State v. Davis, 116 N.J. 341, 351, 561 A.2d 1082 (1989) (noting an example of a case where the Cronic presumption would apply would be where defendant's counsel failed to cross-examine a key State's witness).
In State v. Fritz, 105 N.J. 42, 519 A.2d 336 (1987), the New Jersey Supreme Court adopted the Strickland and Cronic tests for determining whether a defendant has been denied the effective assistance of counsel. In addition, the Supreme Court of New Jersey in Davis, 116 N.J. at 351, 561 A.2d 1082, held that the standard for measuring effectiveness of counsel is a comparison to other attorneys in the field. The Court clarified this standard by stating:
Adequate assistance of an attorney is measured according to whether the counsel has professional skills comparable to other practitioners in the field. This has been equated with a standard of "reasonable competence." "Reasonable competence" does not require the best of attorneys, but certainly not one so ineffective as to make the idea of a fair trial meaningless. Id.
Furthermore, a counselor's effectiveness is presumed. See State v. Martini, 131 N.J. 176, 322, 619 A 2d 1208 (1993). When an attorney makes a thorough investigation of both law and fact, an attorney's strategic choice is "virtually unchallengeable." See Davis, 116 N.J. at 357, 561 A.2d 1082. When counsel makes a strategic choice based on inadequate investigation, however, the strategic choice is robbed of its presumption of competence and must be judged, on whether "reasonable professional judgments support the limitations on investigation." Id. (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052).
Here it is alleged that defense counsel's performance was deficient because she assumed the defendant read the plea form and assumed the defendant was a United States citizen and that but for counsel's ineffectiveness, the plea would ...