On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 07-07-1098.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2012
Before Judges Reisner and Hoffman.
Defendant Francisco Gell-Espinoza appeals from a May 13, 2010 order denying his petition for post-conviction relief (PCR), in which he claimed ineffective assistance of counsel relating to advice about the immigration consequences of his guilty plea. We remand this matter to the trial court for further proceedings.
We first summarize the record presented to us on this appeal. On July 24, 2007, defendant was indicted for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), and second-degree CDS possession with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2). On the same day, he waived his right to a jury trial and entered into a written plea agreement, which was translated into Spanish. He agreed to plead guilty to the second-degree offense, "as amended to a [third-degree] offense," N.J.S.A. 2C:35-5b(3), for which he would receive non-custodial probation. He answered "yes" to question seventeen on the plea form: "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?"
At the plea hearing, on July 24, 2007, the judge asked defendant if he was a United States citizen, and defendant, testifying through a Spanish interpreter, answered that he was a "resident." The following colloquy then ensued:
THE COURT: Well, you understand that if you are applying for citizenship, this could [affect] it, and it could also [affect] your status here in the country, and you could be deported because of this. Do you understand that?
Have you had time to discuss that with your attorney?
Responding to the judge's further questioning, defendant indicated that he read "a little bit" of Spanish but he had gone over the plea form with "the interpreter" and with his attorney. He then gave a factual basis in which he admitted that on April 5, 2007, he was riding in a car with "two other persons, Melvin Padilla Rivera and Aborio Francisco Rodriguez," and that "at that time" he possessed heroin with intent to distribute it.
On September 21, 2007, defendant was sentenced to probation. Before the judge imposed the sentence, defense counsel told the judge that defendant had lived a law-abiding life for a substantial period of time; he had four children; and he had lived with his girlfriend and one of the children in Pennsylvania for the past six years. Defendant stated, "I regret what I have done." When the judge questioned the leniency of the proposed sentence, the prosecutor responded that defendant "is not the heavy in this case. But he was involved in the activity of that particular individual, the one that facilitated the possession of a significant amount of heroin with the intent to distribute. . . . And we had to take that into consideration, as well as other circumstances . . . with the plea that we did."
The judge then stated to defendant, "if you get involved in this again, you'll never get this deal out of me again. Do you understand that?" Defendant responded, "Yes." The judge sentenced defendant to three years probation ...