On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 95-10-1794.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2012
Before Judges Parrillo, Fasciale and Maven.
This case presents the novel question of whether a defendant may seek to vacate an order expunging his own conviction to pursue a petition for post-conviction relief (PCR) to set aside the guilty plea underlying that conviction. The occasion for such a motion in this case arises from the likelihood of defendant's deportation because, according to federal immigration authorities, State expungement orders do not ameliorate the adverse consequence of criminal convictions. Instead of ruling on the motion to vacate the expungement, the Law Division judge granted defendant access to the records underlying his criminal conviction and allowed the filing of his PCR petition. We granted the State's motion for leave to appeal and stayed enforcement of the order.
Some background is in order. Defendant Celso G. Lopez and his family emigrated to this country from Columbia, South America in 1986, when he was ten years old. He was arrested in Bayonne on June 5, 1995 and indicted on several drug counts. On December 6, 1995, he pled guilty to third-degree possession of a controlled dangerous substance with intent to distribute in a school zone, N.J.S.A. 2C:35-7. Although the plea form instructs that his guilty plea may have immigration consequences, the transcripts of both the plea hearing and sentencing reflect no record discussion of the matter at those times. On July 29, 1996, defendant was sentenced to a three-year probationary term.
A little over ten years later, defendant was granted an expungement of the arrest and conviction by order of January 16, 2007, pursuant to N.J.S.A. 2C:52-2. Thereafter, around July 2009, in an attempt to regularize his status, defendant filed an application to register permanent residence with the U.S. Department of Homeland Security, U.S. Citizenship & Immigration Services (Service). His application was denied on March 22, 2010, because of his drug conviction, which the State court expungement "[did] not ameliorate." The Service also informed defendant that if he failed to depart the United States within thirty days, "proceedings will be initiated to enforce [his] departure."
As a result, on May 26, 2011, defendant filed a PCR petition, alleging ineffective assistance of counsel for failing to advise of the immigration consequences of his guilty plea, and seeking withdrawal of that plea. Because the underlying conviction had been expunged by virtue of the January 16, 2007 order, the Criminal Division manager refused to accept and file the petition, prompting defendant's instant motion to vacate the expungement order and thereby revive the drug conviction. The State objected and following argument, the court declined to vacate the expungement but instead, relying on N.J.S.A. 2C:52-19, granted defendant access to the expunged records and allowed him to proceed with his PCR petition. Explicit in the order is the court's determination that it is unnecessary to vacate the expungement in order for defendant to file his PCR petition.
By leave granted, the State appeals entry of that order as beyond the statutory authority of the court.
Although made moot by subsequent events,*fn1 we first address the decision to allow defendant to inspect expunged records. An expungement "requires the [S]tate to extract and isolate the criminal justice records of a defendant." In re T.P.D., 314 N.J. Super. 643, 649 (Law Div. 1997), aff'd o.b., 314 N.J.
Super. 535 (App. Div. 1998); see also N.J.S.A. 2C:52-1a. "Records are neither modified nor destroyed, but are rather withdrawn from public access and released only when permitted by one of the [expungement statutes', N.J.S.A. 2C:52-1 to -32,] narrow exceptions." T.P.D., supra, 314 N.J. Super. at 646. In other words, by statute, records of a conviction could still be used in certain contexts. G.D. v. Kenny, 411 N.J. Super. 176, 188 (App. Div. 2009), aff'd, 205 N.J. 275 (2011). Those situations include release for, among other things, setting bail, sentencing, classification of inmates and use in connection with diversionary programs. N.J.S.A. 2C:52-17 to -23.
None of these enumerated exceptions apply here. Pertinent, however, is N.J.S.A. 2C:52-19, which provides:
Inspection of the files and records, or release of the information contained therein, which are the subject of an order of expungement, or sealing under prior law, may be permitted by the Superior Court upon motion for good cause shown and compelling need based on specific facts. The motion or any order granted pursuant thereto shall specify the person or persons to whom the records and information are to be shown and the purpose for which they are to be utilized. Leave to inspect shall be granted by the court only in those instances where the subject matter of the records of arrest or conviction is the object of litigation or judicial proceedings. Such records may not be inspected or utilized in any subsequent civil or criminal proceeding for the purposes of impeachment or otherwise but may be used for purposes of sentencing on a subsequent offense after guilt has been established. [N.J.S.A. 2C:52-19 (emphasis added).]
In granting defendant access to and inspection of the records underlying his criminal conviction, the court relied on N.J.S.A. 2C:52-19 and found that these records are the object of a "judicial proceeding" initiated by defendant's PCR petition, within the meaning of that provision. Presumably, the court also found, implicitly, that defendant's exposure to imminent removal and deportation, as well as the claim asserted of a deprivation of the constitutional right to effective ...