On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Accusation No. 00-05-916-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Baxter and Nugent.
In this appeal, defendant argues that his post-conviction relief (PCR) petition -- based on trial counsel's rendering of incorrect advice regarding the deportation consequences of defendant's guilty plea -- was erroneously denied. Even though the PCR judge found from competing testimony that defendant told his attorney, at the time he entered his guilty plea, that he was a citizen and, thus, the attorney never told defendant that he would not be deported, the PCR judge never mentioned in her findings the highly relevant circumstances at the sentencing stage -- circumstances that could have called into question the accuracy of the attorney's version about the earlier events. As a result, "the interests of justice demand intervention," State v. Davila, 203 N.J. 97, 110 (2010) (quoting State v. Johnson, 42 N.J. 146, 161-62 (1964)), and require a remand for further findings from the PCR judge.
Defendant was charged in an accusation with third-degree possession of cocaine, N.J.S.A. 2C:35-10(a), and, pursuant to a negotiated agreement, entered a guilty plea to this charge on May 10, 2000. During the plea hearing, defendant was not asked about his citizenship, but defendant did acknowledge that his attorney reviewed the plea form with him. Defendant also testified that he understood all the questions on the plea form and that all his answers were voluntarily given. The plea form's seventeenth question asked: "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your guilty plea?" Defendant answered "N/A."
The presentence report (PSR), which was prepared at a later date, revealed defendant's citizenship was "other," and that he was a Brazilian citizen and an "undocumented alien." Defendant's trial attorney never brought this circumstance to the judge's attention when given the opportunity at sentencing to argue whether any changes needed to be made to the PSR.*fn1
Defendant was sentenced on June 23, 2000, pursuant to the plea agreement, to an eighteen-month probationary term.
In 2007, defendant pursued citizenship, revealing his criminal conviction in his application for naturalization. Undoubtedly as a result, defendant was arrested in May 2009 by immigration officials seeking his deportation based on his 2000 conviction.
Defendant filed his PCR petition on August 17, 2009, arguing that his trial attorney erroneously told him that his guilty plea would not have deportation ramifications. The PCR petition was denied but we granted summary disposition and remanded for a hearing. State v. Batista-Izaias, No. A-2386-09 (App. Div. June 7, 2010).
The PCR judge conducted an evidentiary hearing on August 3 and 11, 2010, during which she heard testimony from defendant, as well as his brother, his sister and his trial attorney. Defendant testified that he told his attorney prior to agreeing to the plea offer that he had a green card and was not a United States citizen, and that the attorney said to him that as long as he held a green card, defendant "would have no problem with immigration."
Defendant's trial attorney, on the other hand, testified that defendant told him he was a citizen. Despite the passage of time, the attorney testified that he remembered defendant. The attorney was not able to produce his file, which he stated was destroyed in a flood.
For reasons expressed in an oral opinion on September 8, 2010, the PCR judge made factual findings, concluding not only that the PCR petition was time-barred but also that it had no merit because the judge found more credible the trial attorney's narrative of what ...