On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-05-748.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically Argued: April 12, 2012
Before Judges Cuff and Lihotz.
Defendant appeals from the March 14, 2012 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant is a permanent legal resident who faces deportation due to a 2006 conviction. The charge is considered an aggravated felony pursuant to 8 U.S.C.A. § 1227(a)(2)(A)(iii), (B)(i). We accelerated this appeal due to his imminent removal. We reverse and remand for an evidentiary hearing.
On September 30, 2005, defendant pled guilty to possession of a controlled dangerous substance (marijuana) with intent to distribute in a school zone, N.J.S.A. 2C:35-7. On January 13, 2006, defendant received a three-year probationary term, with 180 days imprisonment as a condition, which he has completed. He did not file a notice of appeal. On October 26, 2011, a warrant for defendant's arrest and a notice to appear before an immigration court issued due to his 2006 conviction. Defendant filed a petition for PCR on October 27, 2011, which was stayed pending resolution by the Supreme Court of New Jersey of the appeal in State v. Gaitan.
On February 24, 2012, a judge lifted the stay due to the pending deportation proceedings and scheduled an evidentiary hearing on defendant's PCR petition for March 14, 2012. Meanwhile, on February 28, 2012, the Court issued its opinion in State v. Gaitan, ___ N.J. ___ (2012). The State moved to reconsider the order granting an evidentiary hearing; on March 14, 2012, the judge granted the motion and dismissed the PCR petition.
In support of the application to lift the Gaitan stay and to schedule an evidentiary hearing, defense counsel submitted a brief in which she asserted that defendant received ineffective assistance of counsel at the time he entered his guilty plea. Counsel stated that defendant would testify that "[defendant's] counsel had affirmatively advised the defendant that he would not be deported." The brief was not accompanied by a certification or affidavit by defendant. At oral argument, we learned that defendant had executed a certification that asserted that he had been affirmatively misled by plea counsel about the immigration consequences of his plea. Defendant also provided specific examples of the advice rendered by plea counsel. PCR counsel provided this certification to the prosecutor in advance of the evidentiary hearing but did not submit it to the PCR judge because defendant had been produced to testify at the evidentiary hearing in conformity with his certification.*fn1
This case falls squarely into the holding of State of New Jersey v. Nunez-Valdez, 200 N.J. 129 (2009). The Court held providing false advice or affirmatively misleading advice about the immigration consequences of a guilty plea when that issue is of material interest to defendant at the time of his plea is ineffective assistance of counsel. Id. at 140-42. The NunezValdez rule also applies on collateral review of defendant's plea because the rule announced in this case did not establish a new rule of law. Gaitan, supra, slip op. at 46. Here, defendant was prepared to testify that plea counsel provided false advice about his immigration consequences, and he would not have entered the plea knowing that deportation was a certainty. Under these circumstances, defendant should have received an evidentiary hearing.*fn2
Defendant also argues that the plea form and the colloquy between defendant and the judge at the plea hearing about the immigration consequences of the plea should also be considered affirmatively misleading. We disagree. In Gaitan, the Court expressly held that modifications to the plea form cannot be considered misadvice at the time of the plea. Justice LaVecchia wrote: [t]hat we determined in Nunez-Valdez to further refine the plea form does not render as misadvice the information that was provided to Gaitan through the then-existing plea form, nor did the revised plea form vest further rights in Gaitan or others who seek to have their pleas reviewed collaterally. Rather, the changes to our plea form reflect the challenge involved in predicting with certainty the immigration consequences of a guilty plea. [Id. at 47-48].
Therefore, the evidentiary hearing shall be confined to the alleged misadvice or affirmatively misleading advice provided by plea counsel during plea discussions with defendant and whether the immigration consequences of his plea were of material interest to him at that time. See id. at 52-53 (if the immigration consequences of the plea were not material to the decision to plead guilty, defendant cannot establish prejudice). Due to the asserted immediate prospect of removal, the evidentiary hearing shall be scheduled and conducted on an expedited basis.
Reversed and remanded for further proceedings consistent with this opinion. We do ...