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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...