On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-01-00137.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A.A. Rodriguez and LeWinn.
Defendant appeals from the July 13, 2010 order denying his petition for post-conviction relief (PCR). We reverse.
In 2007, defendant was indicted for second-degree theft, N.J.S.A. 2C:20-3; second-degree theft by deception, N.J.S.A. 2C:20-4; second-degree misapplication of entrusted property, N.J.S.A. 2C:21-15; and second-degree financial facilitation of criminal activity, N.J.S.A. 2C:21-25(b)(1) and (2)(a). The victim of these offenses was defendant's then-employer, MD Distributors, Inc.
Defendant is a native of India. At the time of his arrest in October 2007, his immigration status was "nonimmigrant worker," which classification was valid as long as he remained employed by MD Distributors. After his arrest, defendant wrote a series of letters to the attorney he had retained to represent him on these charges, protesting his innocence and expressing concerns about his immigration status.
On March 28, 2008, defendant entered into a negotiated plea agreement whereby he pled guilty to second-degree theft by deception with the understanding that it would be treated as a third-degree offense for sentencing purposes. On his plea form, defendant circled "yes" in response to question 17, indicating that he understood that he "may be deported by virtue of [his] plea of guilty[.]" At his plea hearing, defendant engaged in the following colloquy with the judge:
THE COURT: . . . [D]o you understand that, as someone who is not a citizen of the United States, that it is possible that you may be deported based upon a criminal conviction? You understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: That the [c]court has nothing to do with that. But it's a possibility, when someone is convicted in court, that the immigration authorities may seek to deport [him]. Understood?
THE DEFENDANT: Yes, your Honor.
Defendant acknowledged that he had reviewed the plea form with his attorney who had answered all his questions, and that he was satisfied with his attorney's services. In his factual basis, defendant stated that he was the Chief Financial Officer of MD Distributors; in that capacity he diverted over $75,000 to his personal use without permission.
On June 17, 2008, defendant was sentenced to a three-year term of imprisonment; he was ordered to pay the appropriate statutory fines and assessment, and a restitution hearing was to be scheduled. His pre-sentence report (PSR) contained a statement indicating that defendant "is a lawful permanent resident and does not have a deportable charge." The source of this statement is not noted. Nonetheless, an immigration detainer was lodged against defendant on July 10, 2008.
Defendant filed a pro se PCR petition in or about February 2010, claiming ineffective assistance of counsel. He then retained counsel who filed a supplemental petition on March 18, 2010, which included a motion to vacate his plea. Defendant submitted an affidavit stating that his prior attorney advised him that "immigration authorities would not care or try to deport [him], and [the charges] would have no effects on [his] immigration matters."
A plenary hearing was held on defendant's petition on June 17, 2010. Defendant and his plea counsel testified.
Defendant testified that he has been in the United States continuously since 2001 on a work visa; he was in that status at the time of his arrest. He retained his prior attorney in November 2007, and advised him of his immigration status. He persistently inquired about the effect of his charges on his status and was told that he would "not be deported because [his] crime is not deportable."
Defendant acknowledged that his attorney went "through the plea form" with him at the plea hearing, but denied that counsel discussed question 17 with him regarding immigration status. He acknowledged that the judge had advised him of possible immigration consequences, and he answered "yes" to the judge's questions because his attorney had told him "don't worry about it." After serving twenty-six months on his sentence, he was transferred to an immigration facility. He "came ...