On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-08-01040.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Decided December 5, 2008 Remanded by Supreme Court - September 9, 2009
Resubmitted October 22, 2009
Before Judges Cuff and Fisher.
In our prior opinion in this appeal, we concluded that defendant was not deprived of the effective assistance of counsel when his trial attorney advised him of the seriousness of the deportation consequences of his guilty plea and counseled defendant to seek out the advice of an immigration attorney. On September 9, 2009, the Supreme Court granted defendant's petition for certification and summarily remanded for our reconsideration in light of State v. Nuñez-Valdez, 200 N.J. 129 (2009). Having closely re-examined the matter, we find no reason to alter or amend our prior judgment.
The circumstances presented are far different from NuñezValdez. There, the defendant had been counseled by two different attorneys. According to the trial judge's findings, the first attorney advised the defendant that he would have "no immigration problems" and "nothing like" deportation was "ever" going to happen if he pled guilty. Id. at 132, 134. The second attorney, who attended the plea hearing, told the defendant that deportation was a "possibility," advice which the trial judge found to be "inexact and inaccurate because it did not sufficiently convey the fact that deportation was a certainty under federal law." Id. at 135. Considering the importance of the deportation consequences to the defendant -- he was "extremely concerned" about his immigration status because he had lived in the United States for eighteen years and had a wife and children -- the trial judge in Nuñez-Valdez found, and the Supreme Court agreed, that because the defendant was "affirmatively misinformed by his attorneys as to the immigration consequences," his guilty plea was not made knowingly, voluntarily or intelligently. Ibid.
The circumstances here, more fully recounted in our earlier opinion, State v. McIntyre, No. A-1280-07T4 (App. Div. December 5, 2008) (slip op. at 2-7), are markedly different. When defendant was three years old, his family emigrated from England to the United States, the only country he has ever known. The offenses for which defendant pled guilty were committed sixteen years later; he is now twenty-six years old. As established at the PCR hearing, defendant retained private counsel, who discussed with defendant his immigration status. As part of their communications -- contrary to the fleeting and inexact or inaccurate comments of counsel in Nuñez-Valdez -- defendant's trial counsel wrote to defendant five weeks prior to the plea hearing, advising that because you are not a citizen of the United States, you may be deported following your conviction. I recommend that you speak with an immigration attorney for details concerning possible deportation. Upon request, my office will provide you with a list of immigration attorneys to consult with.
Among other things, more fully recounted in our earlier opinion, defense counsel continually impressed upon defendant the seriousness of his deportation problems and reiterated that an immigration attorney should be engaged because, as a criminal attorney, he was not equipped to provide advice on the immigration consequences of a guilty plea.
According to the PCR judge's findings, defendant's mother had been quite active in securing legal advice for her son.*fn1 She spoke to an immigration attorney on his behalf. The PCR judge found that the immigration attorney advised that "the immigration situation didn't seem to be an issue at the time of the plea," and that defendant should reach out for him once defendant heard from the Immigration and Naturalization Service.
Based on these and other findings -- including defendant's affirmative answer to Question 17 of the plea form and the judge's counseling during the plea hearing that there was a "real possibility" of deportation -- we concluded that trial counsel did not depart from the first prong of the Strickland/Fritz test*fn2 in providing the entirely sound advice that defendant should discuss the deportation consequences with an immigration attorney. Slip op. at 14-15. We held that counsel's advice here was "quite reasonable and sensible" since he possessed no expertise in immigration law, which one member of the Court in Nuñez-Valdez referred to as a "briar patch." 200 N.J. at 160 n.11 (dissenting opinion).
Nuñez-Valdez's alteration of how courts should look at guilty pleas entered by defendants facing a potential for deportation does not compel a different result here. In our prior decision, we anticipated, in light of State v. Bellamy, 178 N.J. 127 (2003), that the Court might reject earlier cases, such as State v. Chung, 210 N.J. Super. 427 (App. Div. 1986), which viewed deportation as only a collateral consequence of a guilty plea. Slip op. at 5, 9. We suggested there was merit in defendant's contention that deportation in certain circumstances -- such as his case -- may be quite punitive.*fn3 In Nuñez-Valdez, the Court did not view deportation as a penal consequence but instead found "ill-defined" and irrelevant "the traditional dichotomy that turns on whether consequences of a plea are penal or collateral." 200 N.J. at 138.
In abandoning the "traditional dichotomy," the Court in Nuñez-Valdez redefined the issue by simply requiring a determination of "whether it is ineffective assistance of counsel for counsel to provide misleading, material information that results in an uninformed plea." 200 N.J. at 139-40. In similarly framing the issue, we concluded in our earlier opinion that our prior case law did not give us "cause to disagree with those courts [of other jurisdictions] that have held that 'an affirmative misrepresentation by counsel as to the deportation consequences of a guilty plea is today objectively unreasonable.'" Slip op. at 14 (quoting United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002)). In deferring to the PCR judge's findings, which ...