On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-07-755.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges R. B. Coleman and Sabatino.
Defendant, Vladimir Diaz, appeals the Law Division's order of July 31, 2007, denying his petition for post-conviction relief ("PCR") arising out of his 1997 guilty plea to a charge of simple possession of cocaine. The State opposes defendant's appeal on the merits, and also procedurally argues that the PCR judge should have dismissed the petition as time-barred under Rule 3:22-12(a).
For the reasons explained herein, we affirm the trial court's decision to address defendant's petition on its merits, notwithstanding the State's assertion of a procedural bar under Rule 3:22-12(a). However, we remand for further development of the record with respect to defendant's criminal intake form, a document that the State presented for the first time on this appeal and without its remaining pages.
The following background is pertinent to this appeal. In February 1997, defendant was arrested in Elizabeth after police stopped and searched the motor vehicle in which he was a passenger. Two bags of cocaine were discovered on the floor of the vehicle. Defendant was initially charged, pre-indictment, with possession of cocaine with intent to distribute it, N.J.S.A. 2C:35-5(b)(2); possession of cocaine with intent to distribute it within a school zone, N.J.S.A. 2C:35-7; simple possession of cocaine, N.J.S.A. 2C:35-10(a)(1); and possession of narcotics paraphernalia, N.J.S.A. 2C:36-2. A Union County grand jury subsequently issued an indictment against defendant and several other persons. The sole count of the indictment pertaining to defendant alleged third-degree simple possession of cocaine, N.J.S.A. 2C:35-10(a)(1), and it did not charge him with any other offenses.
Defendant, represented by counsel, appeared before the trial court on December 8, 1997, and entered a guilty plea to the simple possession charge. He did so pursuant to the terms of a plea agreement with the State, in which the State agreed to recommend a probationary sentence. The court accepted the plea. Consistent with the plea agreement, defendant was sentenced on February 6, 1998, and was required to complete a three-year term of probation, a six-month suspension of his driver's license, one hundred hours of community service, a drug evaluation, and to pay the customary fines and penalties.
Defendant did not appeal his sentence, and he successfully completed its terms. He apparently has not been charged with any subsequent criminal offenses.
By way of background, defendant emigrated with his parents to the United States from Cuba in 1980 when he was seven years old. He has resided in the United States since that time. At the time of the entry of his guilty plea, defendant was twenty-three years old. Defendant has an eleventh-grade education. He speaks and reads English with fluency and has not required an interpreter when he has appeared in court. Although defendant is not a citizen of the United States, he holds a government- issued work permit and has been gainfully employed as a fence installer. He is married and has children who also reside in the United States.
There was no discussion on the record of defendant's lack of United States citizenship or the potential deportation consequences of a conviction during his plea hearing in December 1997 or his sentencing in February 1998. As part of the plea agreement, defendant and his trial attorney signed a standard plea form. With respect to defendant's immigration status, Question 17 of the form read:
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? [YES] [NO] [N/A]
The response to that question was circled "n/a," signifying "not applicable." During the plea colloquy, neither the trial judge, the prosecutor, nor defense counsel posed any questions to defendant about that response.
In 2006, defendant, who had been trying to obtain a United States passport for licensure purposes, was advised by immigration authorities that he was subject to deportation because of his drug conviction. According to defendant, this was the first time that he learned that his 1997 guilty plea could lead to deportation. He retained an immigration lawyer to represent his ...