On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-02-0173.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 4, 2012 -
Before Judges Nugent and Ostrer.
Defendant appeals from an order denying post-conviction relief (PCR). Defendant alleges that he was misinformed about the immigration consequences of his 2003 plea to third-degree distribution of a controlled dangerous substance. N.J.S.A. 2C:35-5a(1). We reverse and remand for an evidentiary hearing.
We discern the following facts from the record, considering defendant's contentions "indulgently and . . . in the light most favorable to him." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant was born in Angola in August 1984. He entered the United States with his parents and siblings roughly five years later on a diplomatic visa. His father was a governmental official. Both parents were active participants in a political party in Angola and human rights organizations. The family remained in the United States after defendant's father's diplomatic work ended. His father was suddenly deported later in 1989. Defendant lived with his mother and siblings. Defendant attended Central High School in Newark, where he completed the eleventh grade.
Defendant was arrested in Elizabeth on November 19, 2002, after he was observed participating in the sale of heroin. Defendant admitted that his role was to retrieve the heroin from a "stash" location, and deliver it to a co-defendant who negotiated and conducted the transaction with the customer, who was also arrested. Defendant had no prior juvenile record. His arrest was his first. Defendant served four days in jail before his release on bail.
On February 6, 2003, defendant apparently waived indictment*fn1
and appeared before the court to enter a plea to a single-count accusation charging him with distribution of a controlled dangerous substance, heroin. N.J.S.A. 2C:35-5a(1). Defendant's plea form erroneously indicated as "not applicable" Question 17, which read, "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?"
Defendant certified that his attorney did not review the plea form with him before defendant signed it. In particular, counsel did not address Question 17. Defendant informed the probation officer who prepared his pre-sentence report in March 2003 that he was "in the process of becoming a U.S. Citizen." However, the record does not otherwise indicate defendant's immigration status at the time of the plea.
The trial judge apparently expressed surprise when defendant disclosed that he was not a citizen. The court first confirmed that defendant was literate, was thinking clearly, and was aware of the terms of the plea agreement, which was to plead guilty to third-degree distribution, in return for probation conditioned on 180 days incarceration. The court engaged in the following exchange:
THE COURT: Are you a United States citizen?
THE COURT: Are you - pardon me?
The court then inquired whether defendant had discussed the immigration consequences of his plea.
THE COURT: Have you discussed with Mr. Spagnoli the fact that this may affect your immigration status?