NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-10-1180.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief; Nancy Fayed, on the brief).
Before Judges Lihotz and Ostrer.
Defendant Livingston Daley, a Jamaican national, appeals from a January 14, 2011 order of the Law Division, entered following an evidentiary hearing, denying his petition for post-conviction relief (PCR). Defendant alleged his attorney was deficient for misinforming him about the potential deportation consequences of his conviction at the time he entered his November 9, 2009 guilty plea to a drug distribution charge. He asserted his plea was not knowing and voluntary, and sought to withdraw the plea and proceed to trial. The motion judge conducted an evidentiary hearing. He rejected the claim of misinformation, found no deficient conduct by counsel, and denied the petition. On appeal, defendant argues:
THE TRIAL JUDGE ERRED BY NOT ALLOWING DEFENDANT TO WITHDRAW HIS PLEA SINCE HE WAS DEPRIVED OF HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL ATTORNEY FAILED TO ADVISE HIM OF THE IMPACT OF HIS CONVICTION UPON HIS IMMIGRATION STATUS.
A deprivation of the constitutional right to effective assistance of counsel occurs when an attorney provides inadequate representation, and that deficient performance causes the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). In reviewing a defendant's claim to be relieved of the consequences of a guilty plea, the first prong may be met where a defendant shows counsel's representation fell short of the prevailing standards expected of criminal defense attorneys. Padilla v. Kentucky, 559 U.S. 356, , 130 S.Ct. 1473, 1482, 176 L.Ed.2d 284, 294 (2010). The second prong requires a defendant to establish a reasonable probability that he would not have pled guilty, but for counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012).
In State v. Nuñez-Valdéz, 200 N.J. 129, 143 (2009), the Court held "a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from 'inaccurate information from counsel concerning the deportation consequences of his plea.'" State v. Brewster, 429 N.J.Super. 387, 392 (App. Div. 2013) (quoting Nuñez-Valdéz, supra, 200 N.J. at 138). The United States Supreme Court has clarified that counsel's duty is not limited to avoiding "false or misleading information" as our Court identified in Nuñez-Valdéz, supra, 200 N.J. at 138, but includes an affirmative duty to inform a defendant who was entering a guilty plea regarding the relevant law pertaining to mandatory deportation if it is "succinct, clear, and explicit[.]" Padilla, supra, 559 U.S. at, 130 S.Ct. at 1483, 176 L.Ed.2d at 295. The High Court made clear that counsel's "failure to advise a noncitizen client that a guilty plea will lead to mandatory deportation deprives the client of the effective assistance of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J.Super. 329, 331 (App. Div. 2012) (citing Padilla, supra, 559 U.S. at, 130 S.Ct. at 1483, 176 L.Ed.2d at 296).
Here, defendant does not suggest he was not advised of possible immigration consequences, but rather contends counsel failed to provide reasonably competent representation when he assured defendant that the entry of a guilty plea would not lead to deportation, and claims no one explained the offense was an aggravated felony as defined by federal law. However, these contentions must be considered in light of the evidence presented during the evidentiary hearing.
Defendant testified at the evidentiary hearing in the PCR proceeding. He explained before agreeing to enter his plea, he sought the opportunity to consult with previously retained immigration counsel regarding the possible immigration consequences of a plea and conviction. Defendant maintained immigration counsel did not explain he would be deported if he pleaded guilty. Defendant also retained criminal defense counsel, with whom he discussed his immigration status and again was advised of the possibility of being deported. Although he acknowledged defense counsel fully reviewed and explained the ...