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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0237-07T40237-07T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. VLADIMIR DIAZ, Defendant-Appellant. ___________________________________

Argued December 1, 2008 - Decided Before Judges R. B. Coleman and Sabatino. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 97-07-755. Richard S. Lehrich argued the cause for appellant. Sara B. Liebman, Assistant Prosecutor, argued the cause for respondent (Lisa M. Dudzinski, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant, Vladimir Diaz, appeals the Law Division's order of July 31, 2007, denying his petition for post-conviction relief ("PCR") arising out of his 1997 guilty plea to a charge of simple possession of cocaine. The State opposes defendant's appeal on the merits, and also procedurally argues that the PCR judge should have dismissed the petition as time-barred under Rule 3:22-12(a).

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For the reasons explained herein, we affirm the trial court's decision to address defendant's petition on its merits, notwithstanding the State's assertion of a procedural bar under Rule 3:22-12(a). However, we remand for further development of the record with respect to defendant's criminal intake form, a document that the State presented for the first time on this appeal and without its remaining pages. The following background is pertinent to this appeal. In February 1997, defendant was arrested in Elizabeth after police stopped and searched the motor vehicle in which he was a passenger. Two bags of cocaine were discovered on the floor of the vehicle. Defendant was initially charged, pre-indictment, with possession of cocaine with intent to distribute it, N.J.S.A. 2C:36-2. A Union County grand jury subsequently issued an indictment against defendant and several other persons. The sole count of the indictment pertaining to defendant alleged third-degree simple possession of cocaine, 178 N.J. 486, 491-92 (2004); See State v. Mitchell, 126 N.J. 565, 576 (1992). The judge did not reject as incredible defendant's sworn assertion that he was unaware until 2006 that his plea to a simple drug possession count, to which he successfully served probation, exposed him to deportation consequences. The documents that appear in the record are consistent with that assertion. Although we recognize the prejudice to the State in possibly reviving this case after over a decade, the potential harm from deporting defendant back to Cuba, where he has not lived for twenty-eight years, is significant enough in this case to warrant review of the merits of the PCR petition. As to the merits of defendant's petition, we bear in mind the well-settled legal principles relating to claims of ineffective assistance of counsel. Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In responding to defendant's claim as to the first prong of the Strickland/Fritz test, the alleged deficiency of trial counsel's performance, the State includes a document in its appellate appendix that was not considered by the PCR judge. The document, paginated as "Pa1," is the first page of a standard plea intake form. On that page, defendant's

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birthplace is typed in as "Cuba," and an adjoining box that asks for his citizenship is mechanically filled in with the response "U.S." The State argues that these responses show that defendant was lying about his citizenship before his plea was taken and that his trial attorney would have relied upon these false responses in representing him. Defendant, who has not moved to strike the exhibit from the appellate record, suggests that the intake form contains a clerical error. He also asserts that there were several other documents in the record, which trial counsel should have seen before the plea hearing, identifying him as a citizen of Cuba. We cannot discern the significance of this exhibit, which does not even contain the remaining pages of the form, without further testimony from defendant and possibly his trial attorney. We do not know how the form was prepared or why it erroneously states that defendant is a citizen of this country. For example, we cannot tell if the response reflects a misunderstanding by the intake officer or, on the other hand, a deceptive response by defendant during his intake interview. Because this exhibit could affect the ultimate disposition of the merits of this appeal, especially as to the first prong of the ineffectiveness criteria, we remand for reconsideration by the trial court. On remand, the PCR judge shall make findings about the genesis of the intake response, whether it affects his prior findings concerning the interactions between defendant and his trial counsel and their respective awareness of deportation consequences, as well as any other pertinent implications. Counsel shall also furnish the PCR judge with their appellate briefs presenting their legal arguments as they were refined on this appeal, which the judge may consult in reconsidering this matter. The remand shall be completed within sixty days of this opinion. Affirmed in part and remanded in part. Jurisdiction is retained, unless the matter is mutually resolved on remand.

We were advised at oral argument that those efforts remain ongoing and that defendant has yet to be either deported or granted some form of deportation relief. (continued) (continued) 13 A-0237-07T4 December 26, 2008

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