On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-05-0796.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 1, 2010
Before Judges Reisner, Sabatino and Alvarez.
In this opinion, we address defendant Jacques Duroseau's direct appeal from a July 31, 2008 judgment of conviction (JOC). For the reasons set forth below, we remand this matter to the trial court for further proceedings consistent with this opinion.
The JOC resulted from defendant's guilty plea to third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7; and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. As part of the plea process, defendant signed a written plea form advising that "if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty" (emphasis added).
The plea agreement was placed on the record on October 24, 2007. Prior to taking the plea, the judge ascertained that defendant was a Canadian citizen. The judge advised defendant that "I don't know if you'll be deported, denied citizenship, that's up to Immigration and Customs Enforcement, not me." Defendant indicated he understood that. The judge then added: "You can't come back to me in the future and say well, I want my plea back because I'm getting deported or denied a visa. Do you understand that?" Defendant said "Yes."
The judge sentenced defendant to an aggregate prison term of five years with an eighteen month parole bar. Defendant filed an appeal from the JOC on December 1, 2008, however, the appeal was not scheduled for argument on an excessive sentence calendar until May 12, 2010. Before his appeal was heard, defendant served the mandatory portion of his sentence and was released on parole. He then faced deportation proceedings.
While defendant's direct appeal was pending, our Supreme Court decided State v. Nunez-Valdez, 200 N.J. 129 (2009), and the United States Supreme Court decided Padilla v. Kentucky, ___ U.S. ___, 130 S.Ct. 1473, 176 L.Ed. 2d 284, (2010). Because defendant's appellate argument, presented to us on May 12, 2010, concerned his right to withdraw his guilty plea based on those two recent cases, we transferred this case to the plenary calendar and ordered that the parties file briefs addressing "the issues of deportation and plea withdrawal in light of" Padilla and Nunez-Valdez.*fn1 We also ordered that the plenary appeal be accelerated.
On this appeal, defendant argues that he should be permitted to withdraw his plea because he was misinformed about the impact that his guilty plea would have on his immigration status. Alternatively, he argues that we should remand this case to the trial court to allow him to make a factual record establishing that due to the misinformation he was given, and the claimed resulting prejudice, he should be permitted to withdraw his plea.
The State argues that Nunez-Valdez and Padilla have no retroactive effect and therefore do not apply to this case. Alternatively, the State argues that we should reject defendant's appeal on the merits because he was aware of the potential deportation consequences of his plea, or that we should dismiss ...