On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-03-389.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 13, 2011
Before Judges Carchman and Baxter.
Defendant Rita Connolly appeals from an August 30, 2010 order denying her petition for post-conviction relief (PCR). In that petition, she argued that her attorney rendered ineffective assistance by failing to advise her of the deportation consequences that would result from her plea of guilty and subsequent conviction. Defendant faces immediate deportation. On July 26, 2011, the Supreme Court issued an order in State v. Gaitan, 206 N.J. 330 (2011), that temporarily stayed all PCR proceedings in which a deportation issue was raised. The Court, however, authorized the lifting of the stay whenever necessary to prevent irreparable harm. We are satisfied that this is such a case.
On the merits, we conclude the record supports defendant's contention that she reasonably did not contemplate that she would have had the opportunity to provide testimony on the day of the PCR hearing, as she believed the proceeding to be only a scheduling conference. After consulting with her attorney, she therefore chose not to attend the hearing. In her absence, the judge made findings of fact on the critical issues without the benefit of defendant's testimony. We therefore reverse the order denying PCR and remand for further proceedings.
On March 2, 2006, a Bergen County grand jury returned an indictment charging defendant with ten counts of third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6h, and one count of second-degree theft by unlawful taking, N.J.S.A.
2C:20-3a (count eleven). On March 29, 2007, after extensive plea negotiations, defendant entered a negotiated plea of guilty to count eleven. In return for defendant's plea of guilty and her agreement to pay restitution, the State agreed to recommend that she be sentenced in the third-degree range to a term of four years imprisonment, subject to the dismissal of the remaining counts of the indictment.
During the plea colloquy, the judge asked defendant where she was born, to which she replied "Milan, Italy," adding that she was a "[p]ermanent resident and married to an American citizen," with a child who was likewise an American citizen. She stated that she had been in the United States for "over 30 years." At that point in the plea proceedings, the following discussion occurred:
[THE JUDGE]: The -- reason why we ask these questions that, for certain offenses -- I do not conduct deportation proceedings, but I will tell you that Homeland Security Immigration get involved in these matters [sic]. They make the ultimate decision as to whether someone is deported or not.
You had the opportunity to speak to [trial counsel]. You had the opportunity to speak to an Immigration lawyer. I cannot tell you what will happen. What I will tell you, as a result of entering a guilty plea in this court, you could be subject to deportation proceedings. When they will happen, if they will happen, is another matter. Okay?
The record reflects no answer by defendant, with the transcript showing:
A: -- The judge then asked defense counsel to question defendant about the length of time he had spent discussing the matter with her, "so that it's not a plea that is done at the last minute." In response to counsel's questions, defendant agreed that she had discussed her case with him "on numerous occasions over the past year" and had done so "as recently as this past Monday[.]" She was not asked, and did not state, whether any of their discussions had included the deportation consequences of her plea of guilty. She did, however, indicate that she had had enough time to "think about and discuss" the entry of a plea of guilty.
Although question 17 on the plea form has since been revised by the Supreme Court, at the time of defendant's plea, the question read as follows:
17. 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?
"N/A" is circled, but is also crossed out; the answer "YES" is circled as well.
The judge asked defense counsel to elicit from defendant a factual basis for her guilty plea. In response to questions posed by her lawyer, defendant acknowledged that between November 1, 2004 and May 26, 2005, she operated a travel agency, and had accepted money from customers for the purchase of airline tickets; however she never provided them with the tickets. The total amount of the theft exceeded $275,000. The judge ruled that defendant had entered her guilty ...