On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 02-04-1414.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, A. A. Rodríguez and C. S. Fisher.
Pursuant to a negotiated plea, defendant pled guilty to first degree distribution of CDS in exchange for dismissal of the remaining counts of an indictment and a recommended sentence of ten years in the custody of the Commissioner of the Department of Corrections with two years to be served before parole eligibility. Because of his cooperation with law enforcement, the charge was amended to a second degree offense at sentencing with the consent of the prosecutor, and no objection to ISP. Defendant now argues that (1) the trial court had to advise defendant of the "possible immigration consequences" of his plea, and of possible deportation, and therefore that we must remand to permit defendant to move to withdraw his plea; (2) he did not receive the effective assistance of counsel "because defense counsel did not explain the immigration consequences to defendant" nor completed the immigration question on the Spanish plea form; and (3) the appeal should be considered as filed within time.
The sentence was imposed, and judgment entered, on June 6, 2003. The notice of motion for leave to appeal as within time was filed on December 8, 2004. On January 3, 2005, we entered an order reserving on the motion and directing that the issue of appealability be briefed by the parties "as part of their merits brief."
In Points I and II of the brief before us, defendant argues:
THIS COURT SHOULD APPLY THE PRINCIPLES OF STATE V. BELLAMY, 178 N.J. 127 (2003), AND HOLD THAT BECAUSE THE POSSIBILITY OF DEPORTATION AND PERMANENT DENIAL OF RE-ENTRY INTO THE UNITED STATES ARE SO SEVERE, FUNDAMENTAL FAIRNESS RQUIRES THE TRIAL COURT TO INFORM A DEFENDANT THAT THERE MAY BE IMMIGRATION CONSEQUENCES AS A RESULT OF PLEADING GUILTY. HERE, THE COURT DID NOT INFORM DEFENDANT OF ANY POSSSIBLE IMMIGRATION CONSEQUENCES, NOR WAS THE QUESTION ON THE SPANISH PLEA FORM ABOUT IMMIGRATION CONSEQUENCES ANSWERED. AS SUCH, THE APPROPRIATE REMEDY IS TO REMAND THE MATTER TO PERMIT DEFENDANT TO MOVE TO WITHDRAW HIS PLEA. U.S. Const. Amends. XIV; N.J. Const. Art. I, ¶ 1, 10. (Not Raised Below)
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT THE PLEA HEARING BECAUSE DEFENSE COUNSEL DID NOT EXPLAIN THE IMMIGRATION CONSEQUENCES TO DEFENDANT, NOR HAD DEFENDANT COMPLETE THE IMMIGRATION QUESTION ON THE SPANISH PLEA FORM. U.S. Const. Amends. VI, XIV; N.J. Const. Art I, ¶ 1, 10. (Not Raised Below)
In the English version of the plea form, defendant answered "yes" to question 17, which asked "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?" Defendant also executed a Spanish form on which question 17 was not answered. The plea colloquy reveals only the following relevant questioning:
Q: The terms of that plea agreement, have you reviewed them with your lawyer ...