On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 02-02-0086.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2009
Before Judges Messano and Alvarez.
In this appeal by defendant Shahriar Kanani, we again consider whether the failure to advise a defendant that deportation is a mandatory consequence of the entry of a guilty plea establishes ineffective assistance of counsel. The motion court denied defendant's request for post-conviction relief (PCR) on April 10, 2008 because defendant had been advised at his March 28, 2002 plea hearing that deportation was a possible consequence of entering a guilty plea. For the reasons that follow, we reverse and remand.
On June 28, 2002, defendant, a lawful permanent resident of the United States, was sentenced to three years probation in accordance with his plea agreement on Somerset County Indictment No. 02-02-0086-I, a single charge of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Defendant was simultaneously sentenced for two motor vehicle offenses: driving while suspended, N.J.S.A. 39:3-40, and careless driving, N.J.S.A. 39:4-97. Other motor vehicle summonses were dismissed pursuant to the plea, and an appropriate term of driver's license suspension was imposed, together with fines, penalties, and assessments.
Although defendant was made aware of the possibility of deportation during the plea colloquy, via the plea form he signed and otherwise, he was not advised that the nature of the offense made deportation automatic pursuant to § 237(a)(2)(C) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1227(a)(2)(C) (as amended). As defendant's plea counsel certified, it is his custom to review the paragraph addressing deportation*fn1 with his clients, but he had no specific recollection of doing so with this defendant. When defendant's plea was entered, counsel did not know that deportation was mandatory for a weapons offense.
Defendant's September 11, 2007 certification filed in support of his PCR petition recounts that he became a lawful, permanent resident in 1997, at age seventeen. On some unspecified date after the coup of the last Shah of Iran, he and his family relocated to this country. Defendant's green card was scheduled to expire on October 30, 2007. In preparation for renewal, defendant consulted with an immigration attorney, although the record does not indicate when this occurred. It was then that he learned that the guilty plea would prohibit renewal of his green card.
The prosecutor's letter brief opposing PCR states, without attribution, that defendant discovered the mandatory deportation provisions in November 2006. In a similarly unembellished fashion, the PCR court made reference to that date in its decision.
Furthermore, defendant's June 28, 2002 judgment of conviction indicates, in a separate section entitled "Reasons for Sentence," that defendant was already on probation in Middlesex County for possession of a handgun and possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4, a crime that occurred five days prior to the arrest in this case. We know from the "Reasons for Sentence" that defendant was sentenced to five years probation in April 2002. We do not know, however, if an application similar in nature to this PCR is being made in that case.
Defendant's points on appeal are:
THE SUPERIOR COURT ERRED ON ...