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State of New Jersey v. Frensel Gaitan

February 7, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRENSEL GAITAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-11-4389.

The opinion of the court was delivered by: Fisher, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted December 1, 2010

Before Judges Cuff, Fisher and Simonelli.

The opinion of the court was delivered by FISHER, J.A.D.

In this appeal, we consider whether the recent decisions in Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and State v. Nunez-Valdez, 200 N.J. 129 (2009), should apply to this noncitizen defendant's argument, raised for the first time in his post-conviction relief (PCR) petition, that his attorney failed to discuss with him the deportation consequences of his guilty plea.

I

On June 27, 2005, defendant pled guilty to third-degree distribution of a controlled dangerous substance within 1000 feet of a school, N.J.S.A. 2C:35-7, and, on October 7, 2005, was sentenced to a five-year probationary term. Defendant did not file a direct appeal. Instead, on May 28, 2008, defendant filed a PCR petition claiming the ineffectiveness of his counsel.

The PCR judge denied defendant's petition, and he appealed, raising the following issues for our consideration:

I. THE COURT ERRED BY NOT ALLOWING ORAL ARGUMENT WHEREIN THE PETITIONER COULD HAVE MORE FULLY EXPLAINED THE PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.

II. IT WAS ERROR NOT TO ALLOW THE DEFENDANT AN EVIDENTIARY HEARING OR GRANT HIS APPLICATION FOR POST-CONVICTION RELIEF.

A. THE PETITIONER SHOULD BE PERMITTED TO WITHDRAW HIS PLEA.

III. PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

A. TRIAL COUNSEL FAILED TO ADVISE THE PETITIONER OF THE COLLATERAL CONSEQUENCES OF HIS PLEA.

IV. THE TRIAL COURT ERRED BY FAILING TO ASCERTAIN WHETHER DEFENDANT UNDERSTOOD THE CONSEQUENCES OF HIS PLEA.

We agree defendant was erroneously denied an evidentiary hearing concerning whether he received the effective assistance of counsel regarding the deportation consequences of ...


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