On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-07-01165.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Sapp-Peterson.
Defendant pled guilty, on April 21, 2008, to one count of third-degree distribution of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-5a; N.J.S.A. 2C:35-7. He was sentenced, on September 12, 2008, to a three-year prison term, with a one-year period of parole ineligibility; other penalties were also imposed.
Defendant filed a petition for post-conviction relief (PCR) on March 19, 2010, arguing that he was denied the effective assistance of counsel because his attorney failed to advise that a guilty plea "would ultimately result in [his] deportation." Defendant also provided the certification of his trial attorney, who conceded he "did not specifically advise [defendant] that as the result of this plea, he would be deported."
Rather than contest defendant's factual allegations, the State based its opposition on its contention that 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 not be applied retroactively.*fn1 That is, the State asserts that, when defendant pled guilty, the existing level of professional competence precluded counsel from providing misleading information but that it did not prevent counsel from "declin[ing] to discuss deportation consequences at all with his client." The PCR judge rejected that argument and held, during the course of her oral opinion of August 25, 2010, that counsel was obligated to provide affirmative advice about the deportation consequences of defendant's guilty plea, relying on Padilla. An order that vacated the guilty plea and the judgment of conviction and returned the matter to the active trial list was entered on August 30, 2010.
We granted the State's motion for leave to appeal to consider the sole issue presented in its brief:
THE RECENT UNITED STATES AND NEW JERSEY SUPREME COURT CASES CONCERNING DISCLOSURE OF IMMIGRATION CONSEQUENCES ARE NOT RETROACTIVE, AND THE APPLICATION FOR POST-CONVICTION RELIEF WAS IMPROPERLY GRANTED.
We reject the State's argument and affirm substantially for the reasons set forth in our recent decision in State v. Gaitan, __ N.J. Super. __ (App. Div.), cert. granted, __ N.J. __ (2011), which is not materially different from the case at hand. Padilla makes clear that attorneys cannot remain silent and must affirmatively advise noncitizen clients about the deportation consequences of their guilty pleas. As Justice Stevens said for the Court in Padilla:
[a] holding limited to affirmative misadvice would invite two absurd results. First, it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available. Silence under these circumstances would be fundamentally at odds with the critical obligation of counsel to advise the client of "the advantages and disadvantages of a plea agreement." Libretti v. United States, 516 U.S. 29, 50-51, 116 S. Ct. 356, [368,] 133 L. Ed. 2d 271[, 290] (1995). When attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all. Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily available. It 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 [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] analysis." Hill v. Lockhart, 474 U.S. 52, 62, 106 S. Ct. 366[, 372], 88 L. Ed. 2d 203[, 212] (1985) (White, J., concurring in judgment).
[Padilla, supra, 559 U.S. at __, 130 S. Ct. at 1484, 176 L. Ed. 2d at 296-97.]
The State's argument that this holding constitutes a new rule, which it believes should be applied only prospectively, is without merit.*fn2
The flaw in the State's argument is demonstrated by the fact that, in holding that the Sixth Amendment requires that affirmative immigration advice must be provided, Padilla relied upon "the weight of prevailing professional norms," citing authorities pre-existing defendant's guilty plea in this case. Id. at __, 130 S. Ct. at 1482-83, 176 L. Ed. 2d at 294-95. As a result, in Gaitan, we held that the argument -- at least as a matter of federal law -- that "no advice is the equivalent of misadvice is not new," and that a noncitizen defendant -- prior to Padilla -- was entitled to affirmative advice about the deportation consequences of a guilty plea. Gaitan, supra, __ N.J. Super. at __ (slip op. at 9).*fn3 ...