March 29, 2011
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
ROHAN GOULBOURNE, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-11-1467.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 1, 2011
Before Judges Carchman and Graves.
By leave granted, the State appeals from an order of the Law Division granting defendant Rohan Goulbourne's petition for Post-Conviction Relief (PCR) and permitting defendant to withdraw his plea of guilty. The thrust of defendant's claim on the PCR was that he was not properly advised as to the impact of his plea of guilty on his immigration status. The PCR judge concluded that based on the totality of the dialogue during defendant's plea voir dire, there was sufficient confusion to conclude that defendant was not fully advised that he would be deported if he entered a plea. We affirm.
The facts are simply stated. Defendant, a citizen of Jamaica who resides in the United States as a lawful permanent resident with a "green card," was charged with various drug offenses and after a negotiated plea agreement, he entered a plea of guilty to possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a. Ultimately, he was sentenced to a term of imprisonment of three years with a minimum period of parole ineligibility of fifteen months. He did not file a direct appeal.
At the time of entry of the guilty plea, defendant, the plea judge and counsel engaged in a dialogue regarding his immigration status. First, defendant completed a plea form wherein he was advised that he "may be deported by virtue of [his] plea." (Emphasis added.) Thereafter, the judge noted:
Q. Okay. Now let me ask you this. Are you a citizen of the United States?
A. No, sir.
Q. You're not. Where were you born?
A. I was born in Kingston, Jamaica.
Q. Jamaica. How long have you been in the U.S.?
A. Been in the U.S. 11 years now.
Q. All right. I'm sure you understand that by reason of this conviction, you could be deported to Jamaica --
A. I heard.
Q. -- to your country? You understand that?
A. Yes, sir.
Q. All right. Okay. And I see you've indicated that on your plea form, so you're aware of that. It would be up to Immigration. But you have to understand that they may very well deport you. You understand?
Thereafter, counsel inquired of defendant:
Q. Okay. You understand, as the Judge indicated to you, that as a result of this plea, it's not guaranteed because we don't know -- we don't deal with this any of us, the Judge, the Prosecutor, myself, we don't deal with this personally, so we don't know what gets done in the -- in the Immigration Services and in the Immigration Court. But they have the right to deport you, and they may very well do that back to Jamaica as a result of this. Do you understand this?
Q. That won't take place until after you finish your jail time. Do you understand?
Subsequent to the plea hearing, defendant was sentenced in accordance with the plea agreement to a three-year term of imprisonment and a fifteen-month period of parole ineligibility.
At the time of his parole eligibility, in May 2009, defendant's custody was transferred to the Immigration Customs and Enforcement Agency (ICE) of the United States Department of Homeland Security, where he was served with various notices indicating that his conviction was an "aggravated felony" and a violation of the Immigration and Nationality Act (INA), 8 U.S.C.A. § 1101(a)(43); 8 U.S.C.A. § 1227(a)(2)(A)(3). He was ordered deported and an appeal of that decision was filed with the Board of Immigration Appeals.
Defendant filed his PCR asserting that counsel was ineffective for failure to advise him of the consequences of his plea. The PCR judge ordered a plenary hearing, and at the hearing, defendant expanded on his conversations with his trial counsel. He related the following:
Q. When you had that first attorney for this drug charge, the Public Defender, the name you don't know, did you ever speak about immigration consequences of the charges you were faced with?
Q. Okay. Mr. Kaplan -- at any time prior to entering your plea, did you ever speak to Mr. Kaplan about what immigration consequences would happen if you pled guilty to any one of the charges on your indictment?
A. No. He told me that I might -- I might get deported. Immigration might take the case up or something.
Q. And when you say "might," did -- did he ever tell you you will get deported, or he just told you you may be deported?
A. Might. May, may, may.
Q. And prior to entering your plea of guilty on -- which you did on March 11th, 2008, did you ever seek the advice of an immigration attorney?
A. No. I have not.
Q. Were you ever given the opportunity to seek the advice of an immigration attorney?
A. No, never.
Q. Did Mr. Kaplan ever advise you to seek the advice of an immigration attorney?
Q. Did the prosecutor, Mr. Cleary, did he advise you to seek the advice of an immigration attorney?
Q. Did the Judge, did he seek -- did he request that you seek the advice of an immigration attorney before entering your guilty plea?
A. No, he did not.
Q. Okay. did anybody, out of all those people I just mentioned, either the Judge, the Prosecutor, or your attorney, the Public Defender, did anyone tell you that you will be deported if you plead guilty to possession of marijuana with intent to distribute?
A. Mr. Kaplan and the Judge told me that.
Q. Did they tell you it would almost be a -- a guaranteed certainty that you'd be deported, or just that you may be deported?
A. Maybe. They didn't tell the certainty. Just maybe.
Q. Okay. Had you known that you would be deported with almost certainty by entering this guilty plea of possession of -- of marijuana with intent to distribute, would you have entered that guilty plea on March 11th, 2008?
Following the hearing, Judge Reddin issued a forty-page oral opinion and concluded that the equivocal and incomplete advice as to defendant's deportation supported defendant's entitlement to post-conviction relief and the withdrawal of his plea. First, the certainty of deportation was not explained to defendant, and second, he was not advised of his opportunity to seek independent legal advice regarding deportation.
On appeal, the State urges that defendant was advised appropriately.
We have carefully considered the arguments of both the State and defendant, and we affirm for the reasons set forth in Judge Reddin's thoughtful and thorough oral opinion of April 9, 2010. We add the following brief comments.
The issue of the collateral consequences of a plea by a non-citizen defendant to an "aggravated felony" as defined by law is far from settled. In State v. Nunez-Vald©z, 200 N.J. 129 (2009), the Supreme Court mandated that the plea form inform defendants that they "will be subject to deportation/removal" upon entry of a plea, id. at 144, and that "the form should instruct defendants of their right to seek legal advice regarding their immigration status." Ibid. In response, by Administrative Directive # 08-09 (September 4, 2009), Administrative Director Glen A. Grant, J.A.D., promulgated amendments to the plea form to meet the Court's mandate.
Subsequent to the Court's decision in Nunez-Vald©z, the United States Supreme Court decided Padilla v. Kentucky, 559 U.S. ____, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) and described the complexities of the impact of immigration law and its impact on criminal proceedings. See also Carachuri-Rosendo v. Holder, ____ U.S. ____, 130 S. Ct. 2577, 177 L. Ed. 2d 68 (2010)(further defining aggravated felonies). In its Report of the Supreme Court Committee on Criminal Practice - 2009-11 Term, the Committee, with dissenting views as to the scope of inquiry, recommended yet additional changes to the form to reflect the changes in the law and need for greater specificity as well as specialized advice in addressing the complexities of immigration law.
In his decision now under review, Judge Reddin was prescient in anticipating the difficulties facing a non-citizen defendant about to enter a plea as well as counsel and the prosecutor in clarifying, in a meaningful way, the ultimate impact of such a plea. His carefully crafted decision reflects the frailties of such an effort, and his grant of relief to defendant here was appropriate.
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