March 24, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LENFORD WRAY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Accusation No. 07-01-0033-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 9, 2010
Before Judges Graves and Messano.
Defendant Lenford Wray appeals from the denial of his petition for post-conviction relief (PCR). He raises the following points for our consideration:
POINT I NO OTHER CONCLUSION CAN BE REACHED BUT THAT [THE] COURT BELOW ERRED IN CONCLUDING DEFENDANT HAD NOT BEEN DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO INFORM DEFENDANT OF THE MANDATORY DEPORTATION CONSEQUENCES AFTER ENTERING A GUILTY PLEA ON AN AGGRAVATED FELONY CHARGE
B. THE APPELLATE [SIC] COURT APPLIED THE INCORRECT STANDARD IN ASSESSING WHETHER DEFENDANT WAS PROPERLY INFORMED BY TRIAL COUNSEL ON THE EFFECT OF A GUILTY PLEA ON HIS CITIZENSHIP
POINT II THE COURT BELOW ERRED IN FAILING TO ORDER AN EVIDENTIARY HEARING TO ADDRESS ALL OF DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.
We have considered these arguments in light of the record and applicable legal standards. We reverse and remand for further proceedings.
On February 8, 2007, defendant pled guilty to Passaic County Accusation #07-01-0033-A charging him with fourth-degree possession of marijuana with intent to distribute, N.J.S.A. 2C:35-5(b)(12). With the assistance of counsel, defendant completed the standard plea form then in use. 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 plea of guilty?" The form reflects that the answer "N/A" was initially circled, scratched out and the answer "YES" was circled instead. Defendant initialed all pages of the form and signed the last page.
Pursuant to the plea bargain, the State agreed to recommend a maximum sentence of eighteen months to be served concurrently with a three-year sentence that defendant had already received on his guilty plea to another CDS charge contained in Passaic County Indictment #05-04-535.*fn1 The earlier plea was entered in September 2006 before the same judge, and defendant was represented by the same attorney.
After being placed under oath, defendant acknowledged his understanding of the plea bargain and that the answers supplied on the plea form were true. The judge asked, "Are you a citizen of the United States?" Defendant responded, "Yes." Defendant indicated that he was satisfied with his attorney's representation and that he was voluntarily pleading guilty. He supplied a factual basis for the charge. On March 7, 2007, the judge imposed sentence in accordance with the plea bargain.
On February 29, 2008, defendant filed a pro se PCR petition. He subsequently forwarded a notarized statement to appointed PCR counsel in which he claimed that he "was wrongly advise[d] by" trial counsel. Specifically, defendant claimed that he was a citizen of Jamaica and "only ha[d] permanent resident" status in the United States. Defendant claimed trial counsel "did not advise [him] on the effect of . . . pleading to the charges," and "if [he] w[ere] aware of such consequences [he] would not have plead guilty." Defendant claimed that as a result of his guilty plea, he "became a resident with [an] aggravated conviction which is an automatic deportation."*fn2
On August 14, 2008, a hearing was held on defendant's PCR petition before the same judge that had accepted his guilty pleas. The judge afforded defendant the opportunity to call witnesses but PCR counsel specifically declined. Referencing question #17 on the plea form, the following exchange took place between PCR counsel and the judge:
Counsel: I think, Judge, that's enough to determine if there's any misinformation. Furthermore, if we look to the transcript of the [p]lea, . . . all that's asked is are you a United States citizen. Now my client answered that question yes. But . . . there was no further discussion regarding the fact whether or not he would be deported. . .
Judge: Well he was under oath and he was asked are you a citizen of the United States and he said yes. Are you suggesting that I should have said well do you understand that if you lied to me under oath and you really are not a citizen, then you might be deported?
I mean shouldn't I take his answer at face value and assume he's telling me the truth because he's under oath and arguably could be charge with perjury?
PCR counsel suggested that defendant might have been nervous and "not thinking quite clearly."
The judge expressed concern as to whether defendant truly wanted to proceed since he had already served the sentence imposed on his guilty plea to the accusation. The judge noted that if the petition were granted, and the guilty pleas withdrawn, defendant might face further incarceration if convicted at trial.*fn3 The judge placed defendant under oath and questioned him as follows:
Judge: [A]re you telling me . . . that on the day when you put through this plea . . . you did not know that as a result of your being a citizen of Jamaica . . . that the possibility existed that you could be deported as a result of that plea?
Defendant: I did know, Your Honor.
I didn't know it was a mandatory deportation.
Judge: Well . . . did you think that as a result of pleading guilty the possibility existed that you could be deported? Defendant: Yes, Your Honor.
Judge: Okay. You weren't told it was mandatory by anybody. You didn't believe it was mandatory, but you knew the possibility existed?
Defendant: Yes, Your Honor.
You went over that with me.
This was a reference to what had transpired at defendant's earlier guilty plea to the indictment.
At the PCR hearing, the judge noted that he had listened to the tape recorded proceedings from September 2006, i.e., when defendant pled guilty to the indictment. At the time, defendant told the judge that he was not a citizen of the United States. That prompted the judge to properly explain that deportation was a possibility as a result of defendant's guilty plea. Defendant apparently indicated that he understood.
At the PCR hearing, the judge concluded that based upon the colloquy that occurred at defendant's original plea allocution in September 2006, and the proceedings in February 2007 at the time of his second plea allocution, defendant "was aware and . . . knowingly pled guilty." The judge denied defendant's petition.
Since defendant filed this appeal, our Supreme Court has decided State v. Nunez-Valdez, 200 N.J. 129 (2009), and the United State Supreme Court has decided Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010). In NunezValdez, supra, 200 N.J. at 143 (internal quotation marks omitted), the Court concluded that a PCR petitioner could establish ineffective assistance of counsel if trial counsel "misinformed him as to the immigration consequence of pleading guilty, and . . . the defendant reasonably relied on the misinformation provided by his attorneys in deciding to plead guilty." The Court also modified question #17 on the plea form as follows: "'if your plea of guilty is to a crime considered an aggravated felony under federal law you will be subject to deportation/removal' and . . . the form should instruct defendants of their right to seek legal advice regarding their immigration status." Id. at 144.
In Padilla, supra, 559 U.S. at ___, 130 S. Ct. at 1484, 176
L. Ed. 2d at 296-97, the Court held that the petitioner need not
establish "affirmative misadvice" by the attorney, because "[i]t
is quintessentially the duty of counsel to provide her client with
available advice about an issue like deportation and the failure to do
so 'clearly satisfies the first prong of the Strickland*fn4
analysis.'" "When the [immigration] law is not succinct and
straightforward . . ., a criminal defense attorney need do no more
than advise a noncitizen client that pending criminal charges may
carry a risk of adverse immigration consequences. But when the
deportation consequence is truly clear, as it was in this case, the
duty to give correct advice is equally clear." Id. at ___, 130 S. Ct.
at 1483, 176 L. Ed. 2d at 296. Because the issue was never directly
addressed at the PCR hearing in this case, we assume arguendo that
defendant's "deportation consequence [wa]s truly clear."
The PCR judge, of course, did not have the benefit of the holdings in Nunez-Valdez and Padilla when he decided this case. We have recently determined that the holding in Nunez-Valdez should be given "[p]ipeline retroactivity . . . [to] those cases pending appeal of an order denying post-conviction relief." State v. Gaitan, ___ N.J. Super. ___, ___ n.9 (App. Div. 2011) (slip op. at 13). Defendant's appeal was pending when Nunez- Valdez was decided. That alone is reason to remand the matter. See Gaitan, supra, ___ N.J. Super. at ___ n.8 (slip op. at 13) (noting remands in our "unpublished opinion[s]" and the Supreme Court's decision in State v. McIntyre, 200 N.J. 365 (2009), requiring remand to consider the impact of the decision in Nunez-Valdez).
We are further convinced that the matter must be remanded because of the peculiar facts presented.
As noted, when questioned by the judge during his guilty plea to the accusation, defendant indicated that he was a United States citizen. At the PCR hearing, the judge characterized that answer as a "mistake innocently" made by defendant. We recently reviewed a somewhat similar circumstance in an unpublished opinion, State v. Gutierrez, No. A-6308-08T2 (App. Div. February 18, 2011) (slip op. at 2-4).*fn5 There, the defendant asserted on direct appeal that he should be permitted to withdraw his guilty plea because he was never advised of the immigration consequences. In Gutierrez, the defendant indicated on the plea form that he was a citizen and "there [w]as . . . no showing that [he] informed his attorney or the court that he was not a United States citizen." Id. at 5. We recognized that the holdings in Nunez-Valdez and Padilla might be inapplicable to those facts. Ibid. Based upon the state of the record, we affirmed the defendant's conviction, but left open the possibility of a future PCR petition or the filing of formal motion by the defendant to withdraw his plea. Ibid.
Furthermore, in this case, defendant had appeared before the same judge with the same attorney several months earlier and indicated that he was not a citizen. That prompted the judge to discuss the "possibility" of deportation based upon defendant's guilty plea. In denying this PCR petition, the judge concluded that defendant's knowledge of the possibility, as opposed to the probability, of deportation based upon the earlier plea proceedings was sufficient to deny the application. In light of the holdings in Nunez-Valdez and Padilla, on remand, the judge must consider what effect, if any, the information he conveyed to defendant in September 2006 may have upon the ineffective assistance of counsel claim.
Additionally, although the judge offered defendant the opportunity to testify in support of his petition, he chose not to. Nevertheless, apparently exercising an abundance of caution to assure himself that defendant wished to proceed with the PCR application, the judge placed defendant under oath; the judge posed a series of questions that did not address what advice, if any, trial counsel may have rendered on the issue. The prosecutor was never given an opportunity to cross-examine defendant, and, at a later point, the judge stated that he was "disregarding what [defendant] said today."
We reach no conclusion about the ultimate merits of defendant's PCR petition. The judge, however, should consider defendant's ineffective assistance of counsel claim in light of both proceedings -- the guilty plea entered in September 2006 and the guilty plea entered in February 2007 -- as well as the holdings since announced in Nunez-Valdez and Padilla. We leave the conduct of the remand hearing to the judge's sound discretion.
Reversed and remanded.