On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-04-1198.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Gilroy and Chambers.
Defendant John Datus appeals from the February 27, 2008 order denying his petition for post-conviction relief (PCR). We reverse and remand for further proceedings consistent with this opinion.
On April 2, 2003, defendant was charged by an Essex County Grand Jury with fourth-degree possession of a controlled dangerous substance (CDS) (marijuana), N.J.S.A. 2C:35-10a(3) (Count One); second-degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5b(10) (Count Two); and third-degree possession of a CDS with intent to distribute within 1,000 feet of a school, N.J.S.A. 2C:35-7 (Count Three). On May 12, 2003, pursuant to a negotiated plea agreement, defendant pled guilty to Count Three in exchange for the State dismissing Counts One and Two and recommending a sentence of three years of imprisonment with an eighteen-month period of parole ineligibility. On June 27, 2003, the trial court sentenced defendant in accordance with the plea agreement to run concurrent with sentences defendant was then serving on other convictions. The court also imposed all appropriate fines and penalties and suspended defendant's driving privileges for a period of six months.
On May 26, 2004, prior to being released from prison, the United States Department of Justice (USDJ) Immigration and Naturalization Service served defendant with deportation papers and thereafter took him into custody, pending a removal proceeding. On May 5, 2005, the USDJ Immigration Court denied defendant's application to withhold removal and ordered him removed to Haiti.
On July 27, 2005, defendant filed a pro se petition for PCR, alleging ineffective assistance of plea counsel, contending that, although he answered "yes" to Question No. 17 in the plea agreement, "[d]o you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?", he was advised by counsel not to worry about the question because "[y]ou won't be deported because this is your first felony drug conviction." On August 16, 2005, defendant's appeal of the order of deportation was dismissed.
On November 17, 2005, the Court of Appeals for the Fifth Circuit denied defendant's motion seeking a stay of deportation. As a result of defendant's deportation, the Office of the Public Defender filed a motion to withdraw defendant's petition for PCR without prejudice, contending that the issue was moot. On June 28, 2006, the court granted the motion.
While in Haiti, defendant contacted the Office of the Public Defender and requested that it move to reinstate his PCR petition. The Public Defender filed a motion to reinstate the petition on December 7, 2006. On February 27, 2008, the trial court entered an order supported by an oral decision denying defendant's petition without an evidentiary hearing. In denying the evidentiary hearing, the court reasoned:
I'm not sure what we would do in a plenary hearing. We can't get [defendant] here to testify. I guess, we could get [the public defender] here to testify. . . .
So that's why no plenary hearing. Based on what I've got in front of me[,] the defendant's answer to my questions, the defendant's answers to the questions on his plea form, the fact that the defendant did not raise on direct appeal that this wasn't a voluntary waiver, or plea of guilty, I'm going to deny the application for [PCR].
And, also, my belief that, in essence, it's moot because he does have a prior conviction for a theft offense, which is one of the enumerated aggravated ...