On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-12-3941.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2010 - Decided Before Judges Carchman and Graves.
Defendant Jason Jones was originally charged with first-degree murder, N.J.S.A. 2C:11-3a(1)(2), and other related offenses. He entered into a negotiated plea agreement, which resulted in his plea to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. Defendant was sentenced in accordance with the plea agreement to an aggregate prison term of eighteen-years with an eighty-five percent parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). At the time of his plea, defendant admitted to stabbing his girlfriend in the neck. She died as a result of these injuries. Defendant did not appeal.
Approximately sixteen months later, in September 2008, defendant filed a petition for post-conviction relief (PCR). In his PCR, defendant asserted that he was denied effective assistance of counsel. Specifically, he argued that counsel was ineffective because she failed to present evidence of his mental illness, which would have precluded him from entering a plea. In addition, defendant claims that he was not advised that a plea could potentially result in deportation.
In denying relief, the PCR judge determined that defendant's mental illness should have been raised on direct appeal, R. 3:22-4(a). The judge noted: "Petitioner makes no mention in his certification nor does counsel in his supplemental brief that Petitioner raised these concerns to his trial counsel and/or to the Court during its colloquy with the Petitioner during the plea stage." The judge further concluded that neither the "fundamental injustice" exception, R. 3:22-4(b), nor the "constitutional rights" exception, R. 3:22-4(c), were implicated here. In addition, he found that no evidentiary hearing was required, R. 3:22-10, as there was no showing of a prima facie case to warrant such a hearing.
Finally, the judge rejected defendant's argument regarding counsel's alleged failure to advise defendant as to the deportation consequences of a plea. The judge noted that in an earlier plea on different charges, defendant was advised of the possibility of deportation and acknowledged that information on his plea form.
Defendant appeals; we reverse and remand for a hearing limited to the issue of ineffective assistance of counsel as it relates to his alleged mental illness.
We reject the prosecutor's arguments that defendant's claim was barred by Rule 3:22-3 and Rule 3:22-4.
Except as otherwise required by the Constitution of New Jersey, a petition pursuant to this rule is the exclusive means of challenging a judgment rendered upon conviction of a crime. It is not, however, a substitute for appeal from conviction or for motion incident to the proceedings in the trial court, and may not be filed while such appellate review or motion is pending.
The Comment to Rule 3:22-3 explains,
This rule was amended effective September 2009 as part of the overall revisions of the post-conviction rules then adopted. The import of the change is to make clear that the bar against filing a post-conviction relief petition applies only if direct review is pending rather than, as heretofore, if such review is available.
In this case, direct review is not pending. This Rule requires the bar of a PCR petition only if direct review is pending, not if it is available. Accordingly, this ...