On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 2005-06-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Messano.
The State of New Jersey appeals from the order of November 7, 2005 granting post-conviction relief (PCR) to defendant Jose Nunez-Valdez, arguing that the PCR judge's determination in the matter was not supported by the facts as disclosed at the PCR hearing. Following our review of the record in light of the arguments of counsel and applicable legal precedent, we agree and reverse.
In warrants issued on June 30, 1997, defendant was charged with second-degree attempted sexual assault in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2c and fourth-degree criminal sexual contact in violation of N.J.S.A. 2C:14-3b following allegations, among others, that defendant had touched the vagina and breasts of his seventeen-year-old neighbor, by force and without her consent. Defendant retained counsel, Aaron Smith, and on June 10, 1998, he pled guilty to an accusation charging the fourth-degree crime of criminal sexual contact, receiving as his sentence five years of non-custodial probation, conditioned upon psychiatric evaluation and treatment, if warranted. The reporting and supervisory provisions of Megan's Law, N.J.S.A. 2C:7-1 to -21, were found to be applicable.
Defendant was represented at the plea hearing by Smith's associate, Troy Archie. In connection with his plea, defendant executed a plea form that stated, in question seventeen: "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?" The response, "Yes," was circled on the form, and the page containing the question and response was signed by defendant.
When pleading guilty, defendant acknowledged through an interpreter that he understood the questions on the plea form, and that he answered them truthfully. Additionally, defendant acknowledged that he had touched the breasts and vagina of the minor victim, that he did so for his own sexual arousal, that his contact was purposeful, and that he "did force her."
Defendant was sentenced in accordance with the plea agreement on July 31, 1998. At sentencing, defendant corrected the pre-sentence investigation report, which had indicated he was a citizen of the United States, stating through Spanish-speaking counsel, Juan Gonzalez, another associate of Smith's, that he was a legal resident alien and a citizen of the Dominican Republic. In accordance with the plea agreement, defendant did not appeal from his conviction.
Approximately two years later, on September 27, 2000, the United States Immigration Court ordered that defendant be deported to the Dominican Republic. Defendant appealed, and on August 8, 2002, the Board of Immigration Appeals affirmed his order of deportation.
Shortly thereafter, on October 11, 2002, defendant sought post-conviction relief, claiming in his verified petition that, although he had retained Aaron Smith as counsel, for "reasons unknown to Petitioner," he was represented at the plea hearing by Troy Archie, with whom he communicated only with the aid of an interpreter. According to defendant:
Mr. Archie did not accurately or fully discuss with Petitioner in any way the possible consequences of a conviction for criminal sexual contact under the Immigration and Naturalization Act or other immigration-related laws. Rather, Mr. Archie communicated that there would be no problems with immigration and the only consequence of this conviction would be probation in the Superior Court. Mr. Archie had also assured [defendant's] brother in a separate conversation that a fourth-degree offense would not cause an immigration problem.
In fact, the petition stated, 1996 statutory amendments to federal immigration law provided that conviction for a sexual offense constituted mandatory grounds for deportation. The petition continued by stating that if defendant had been provided accurate information regarding his immigration status, he would not have pled guilty. Additionally, defendant claimed that there was an inadequate factual basis in his plea for the "physical force" element of his conviction pursuant to N.J.S.A. 2C:14-3b.
Defendant provided de bene esse testimony at a PCR hearing conducted on June 14, 2004, immediately prior to his deportation. At the hearing, defendant testified that he had been born in the Dominican Republic, where he remained until November 1980, when at age eighteen, he moved to the United States. At the time of the plea hearing, he was a legal resident alien. Defendant stated that he had received an eighth grade education in the Dominican Republic, and despite a twenty-four-year residence in the United States, his understanding of English remained very limited. Defendant was married and the father of three children, all residing in the United States. However, his marriage had occurred in the Dominican Republic and only one child had been born in this country.
According to defendant, following his arrest on the sexual assault charges, he was advised by his attorney, Smith, to plead guilty to fourth-degree criminal sexual contact, for which he would receive a sentence of five years of probation. Otherwise, he faced ten years in prison. Defendant testified that he had discussed his "immigration status" with Smith, and was advised by him that "nothing was going to happen to me."
Defendant testified further that at the plea hearing, he was represented by Smith's "helper or brother," Archie, who likewise told defendant that his immigration status would not "play a part" if defendant were to plead guilty to the fourth-degree crime. After repeated questioning, defense counsel elicited from defendant the statement that he would not have pled guilty if he had known he would be deported.
When asked about the plea form, defendant testified that Archie filled it out and, although there was a translator speaking, he was never told "that something was going to happen" with immigration or otherwise informed of the contents of the form. Defendant testified on cross-examination that the translator, although present, "did not read a thing to me. She was also saying that I should plead guilty." When asked whether defendant had asked the translator to read the plea form to him, defendant responded "yes," but that she refused, stating "it was best if we leave everything like that. It was easier."
When read question seventeen at the PCR hearing, defendant responded: "If I had known that, I would not have pled guilty." Additionally, defendant testified that he did not recall the judge asking him to verify his signature and initials on the plea form. In explaining why he answered "yes" when asked by the judge if he understood the questions on the plea form, defendant responded: "All I did was say yes because the attorney told me I should answer yes to all the questions." The following colloquy then occurred:
Q: Okay. So when the judge then asked were the answers that you gave there the truth and you answered yes, again, you answered yes ...