On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-07-1688.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 4, 2011
Before Judges Messano and Waugh.
Defendant Luz Zambrano appeals from the denial of her petition for post-conviction relief (PCR) without an evidentiary hearing. She raises the following points on appeal:
THE COURT ERRED IN DENYING AN EVIDENTIARY HEARING AND DENYING THE PETITION FOR POST [-]CONVICTION RELIEF.
POINT II: DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE FROM PCR COUNSEL. (NOT RAISED BELOW)
The State has cross-appealed, arguing that the PCR judge "erred in concluding that defendant's petition for [PCR] was not procedurally barred." We have considered these arguments in light of the record and applicable legal standards. We reverse and remand the matter for further proceedings.
On June 5, 2000, defendant pled guilty to Bergen County Accusation No. 00-06-1097 charging her with third-degree theft, N.J.S.A. 2C:20-3(a).*fn1 An order of postponement was entered and defendant was admitted into the Pre-Trial Intervention Program (PTI). A special condition of her enrollment was her obligation to pay restitution in the amount of $1800 to the Oritaini Savings Bank in Hackensack.
On April 24, 2002, defendant's participation in PTI was terminated apparently because of her inability to make the monthly restitution payments. The matter was presented to the grand jury, which returned Bergen County Indictment No. 02-07-01688 on July 29, 2002, charging defendant with one count of third-degree theft. On October 28, defendant pled guilty to the indictment.
Pursuant to the plea agreement, defendant was to be sentenced to non-custodial probation with restitution as a condition. Defendant indicated that she understood the terms of the plea bargain. The judge then reviewed the plea form that defendant acknowledged she had executed with the assistance of trial counsel. The following colloquy took place:
Judge: Are you a citizen of this country? Defendant: Resident to become a citizen. Judge: You have a green card?
Judge: So Question No. 17 counts as checked off "not applicable" has to be answered in the affirmative. She has to initial this.*fn2
You understand that by being a resident and pleading guilty today, that could negate your resident status and you could ...