On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-09-0227.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2009
Before Judges Lihotz and Ashrafi.
Defendant Sarah Creque appeals from an order of the Law Division dated May 2, 2008, dismissing her petition for post-conviction relief (PCR) without an evidentiary hearing. The Law Division determined that defendant could not possibly prove her allegations of ineffective assistance of counsel because she was deported and could not return to testify. Her deportation was allegedly a result of being convicted of the crime from which she sought relief. We reverse and remand for an evidentiary hearing.
In July 2006, defendant, then age twenty, stabbed her brother with a knife or other kitchen utensil in their home in New Brunswick. After her arrest, an attorney from the Public Defender's Office in Middlesex County was assigned to represent her. In September 2006, defendant pleaded guilty, pursuant to a non-custodial plea agreement, to a one-count accusation charging third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(2).
At the hearing for her guilty plea, defendant testified that she was involved in a fight with her brother, that he struck her first, that she "jabbed him in the arm a few times" with a fruit peeler, and that her brother "said it wasn't painful." The judge and the attorneys did not question defendant about her citizenship or immigration status, but she signed and filed a plea form in which question 17 asked, "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your guilty plea?" Circled in response was the answer "N/A," not applicable. The court accepted the guilty plea, and in November 2006, sentenced defendant in accordance with the plea agreement to three years' probation.
Within five months of her sentencing, in March 2007, defendant filed a pro se PCR petition alleging ineffective assistance of counsel. She asserted that she was "undocumented" at the time of her plea, that her attorney had "marked not applicable where the [plea] form asked about immigration consequences (i.e. deportability)," and that she "did not think [her] immigration status would be a problem because that is what he led me to believe." The Public Defender's Office assigned an attorney from a different county to represent her for the PCR petition.
In August 2007, defendant signed a certification in support of her petition in which she stated that she is a citizen of the Dominican Republic and that removal proceedings were brought against her by U.S. Immigration and Customs Enforcement (ICE), a federal agency within the Department of Homeland Security. She certified further that her attorney at the time of the guilty plea had been aware that she had pending an application to adjust her immigration and residency status, and that he advised her that the guilty plea would not affect that status. She also said that all her family, including her children, reside in the United States, and that if she had known she might be deported, she would not have pleaded guilty but gone to trial on the aggravated assault charge. Between the time that defendant signed her certification and the time that her PCR petition was scheduled for a hearing in April 2008, the federal government deported defendant to the Dominican Republic.
Nevertheless, in support of the petition, her attorney submitted defendant's certification and also the report of an investigator who had questioned the prior attorney about the guilty plea and the answer to question 17 on the plea form. According to the investigator, the attorney told him that the answer "N/A" is not "a standard response" to question 17 and, therefore, the attorney believed that defendant must have told him something that led to his marking that answer. The attorney also told the investigator that it is not his practice in all cases to review the criminal case intake form, although that form would likely have informed him of defendant's residency status.
The State filed an answer to the PCR petition alleging among other things that defendant had a lengthy juvenile record involving assaults; that she had reported "immigration problems" to a psychiatrist in August 2006, that is, before entry of her guilty plea; and that she could not enter the country legally to testify in support of her petition. The State argued that the PCR petition did not establish a prima facie case of ineffective assistance of counsel.
At oral argument on the PCR petition, defense counsel suggested several alternatives to contend with defendant's absence. He suggested that her testimony be taken by telephone or video, or that letters rogatory be issued for the taking of her testimony in the Dominican Republic. Alternatively, defense counsel said that defendant's testimony might not be necessary, that the court might decide the issue of ineffective assistance of counsel in her favor without it.
The prosecutor objected on several grounds, and the court was skeptical of the defense proposals. The court said:
[T]he most obvious problem here is the impossibility problem. In other words, it is impossible for Miss Creque to prosecute this application. The burden is on her to establish . . . ineffective assistance of counsel. And she's got to be able to get to court to do that. She has to be subject to cross-examination to do ...