SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized.)
State v. Jose Nunez-Valdez (A-46-08)
Argued March 9, 2009 -- Decided July 27, 2009
WALLACE, J., writing for a majority of the Court.
The issue in this appeal is whether the trial court properly found that defendant's counsel materially misinformed him concerning the deportation consequences of his plea, and that defendant would not have pled guilty if he had received correct information.
In 1998, defendant pled guilty to fourth-degree criminal sexual contact with a seventeen-year-old girl. The trial court imposed a five-year probationary sentence, consistent with the plea agreement. Subsequently, because of his conviction, defendant was deported to his native Dominican Republic. In 2002, defendant filed a petition for post-conviction relief (PCR), alleging that his counsel misinformed him that his guilty plea would not affect his immigration status, and that he would not have pled guilty if he had been informed that his conviction would require deportation.
With an interpreter's aid, defendant testified at the PCR hearings. He stated that he came to the United States when he was 18 years old, does not speak or write English, is not a citizen, and, at the time of the offense, was a legal permanent resident and lived with his wife and children in Camden. With the help of his brother, Luis, defendant hired Aaron Smith, Esq., to represent him. Defendant stated that Smith told him to plead guilty in exchange for a sentence of probation, and if he did not, he would receive a ten-year prison sentence. He stated that he asked about immigration consequences and Smith answered that "nothing like that" would happen. At the plea hearing, Troy Archie, Esq., appeared instead of Smith. Through an interpreter, Archie stated that defendant would go to jail if he did not plead guilty. Defendant stated that Archie told him that his immigration status "had no part in this case." Defendant admitted that he never specifically asked about deportation, but he claimed that he would never have pled guilty if he had known it would result in deportation. He claimed that Archie did not review the plea form with him, that he was unaware that question seventeen stated that he may be deported as a result of his guilty plea, and that he would not have pled guilty if he had been aware of it. Luis testified that he acted as his brother's interpreter at the meeting with Smith, that he asked Smith if there would be immigration or deportation problems, and that Smith said that there would be none.
Archie testified that at the time of the plea, he had been practicing law for two years, mostly criminal. He stated that with an interpreter's assistance, he read each line of the plea agreement to defendant, explained it to him, and asked him if he had any questions. Based upon defendant's answers, Archie circled the applicable responses on the form. He was "pretty sure" he talked about deportation, but he could not recall whether defendant was concerned about it. He believed the question came up in reviewing question seventeen, which asked "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?" Archie recalled stating that deportation was a "possibility," but he never told defendant that he would be deported if he pled guilty.
The trial court accepted some portions of the witnesses' testimony and rejected other portions of their testimony. It rejected much of defendant's testimony, but it considered his lack of education and sophistication to find credible his assertion that he raised the issue of his immigration status with his attorneys. Although the court had concerns about Luis's reliability, it accepted his testimony that Smith told defendant no immigration problems would result. The court found that based on Smith's advice, it was reasonable for defendant to believe he would not be deported if he pled guilty. The court found that it did not make sense that defendant, who had been in the United States for eighteen years with his family, would not be concerned about deportation. The court found that he was extremely concerned that his immigration status not be affected by his guilty plea, that immigration concerns were material to his decision to plead guilty, and that he expressed his concerns to Smith and Archie. The court found that Smith told defendant he would not be deported and that Archie's statement that deportation was a "possibility" was inaccurate because deportation was a certainty under federal law. The court concluded that defendant was misinformed as to the immigration consequences of a guilty plea and that his plea was not made knowingly, voluntarily or intelligently.
The Appellate Division reversed in an unpublished opinion, concluding that the trial court's findings were clearly mistaken. The panel found a lack of factual foundation for the court's conclusion that defendant's primary concern was deportation. The panel cited the selected acceptance of certain testimony from defendant and Luis while finding other statements by the two to be incredible. It took issue with the rejection of Archie's testimony that he told defendant deportation could occur. The panel also disagreed with the trial court's implicit determination that Archie was unfamiliar with controlling immigration law and misinformed defendant.
The Court granted defendant's petition for certification. 196 N.J. 599 (2008).
HELD: There was sufficient credible evidence for the trial court to conclude that defendant was misinformed by counsel and that he would not have pled guilty if he had received accurate information that his plea would result in deportation.
1. To set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that counsel's assistance was not within the range of competence demanded of attorneys in criminal cases, and that there is a reasonable probability that, but for counsel's errors, defendant would not have pled guilty. The Court decides this case under the state constitution. Its analysis does not depend on whether deportation is a collateral consequence or a penal consequence. Rather, the issue is whether it is ineffective assistance for counsel to provide misleading, material information that results in an uninformed plea, and whether that occurred here. (pp. 12-14)
2. Under federal immigration laws in effect at the time of defendant's plea, the classification of a legal permanent resident as an "aggravated felon" is a complete bar to relief from deportation. An "aggravated felony" includes "sexual abuse of a minor." Thus, the crime to which defendant pled guilty, fourth-degree criminal sexual contact with a seventeen-year-old girl, required mandatory deportation. (pp. 14-16)
3. Although there were some factual disputes concerning the advice the attorneys gave defendant, and despite the trial court's criticism of defendant's credibility on certain factual assertions, the trial court believed defendant's testimony that immigration consequences were very important to him and that his attorneys told him that a guilty plea would not affect his immigration status. A reviewing court must affirm a trial court's findings if they could reasonably have been reached on sufficient credible evidence in the record. The trial court did not abuse its discretion in crediting defendant's account that he received misleading or false information about immigration consequences. It was not obliged to credit all of defendant's testimony. It gave reasons for disbelieving Archie's testimony that he told defendant deportation was a possibility. Also, it was not disputed that neither attorney informed defendant that federal law mandated deportation for the crime to which defendant would plead guilty. The panel erred by disregarding the trial court's factual findings, which were supported by sufficient credible evidence. (pp. 16-18)
4. The trial court also accepted defendant's testimony that he would not have pled guilty if he had known he would be deported, and found that he did not give a knowing, voluntary or intelligent plea. Based on the trial court's findings, which are amply supported by the record, defendant established that he would not have pled guilty but for the inaccurate information from counsel concerning the consequences of his plea. Thus, the Court reinstates the trial court's order that directed the withdrawal of defendant's plea and reinstatement of the matter for trial. (pp. 19-20)
5. The Court provides a suggested amendment to the plea form to help ensure that a non-citizen defendant receives information sufficient to make an informed decision regarding whether to plead guilty, and directs the Criminal Practice Committee and the Administrative Director to revise the form. (pp. 20-22)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for proceedings consistent with the Court's opinion.
JUSTICE RIVERA-SOTO, DISSENTING, finds no credible evidence supporting defendant's claims that his counsel's performance was deficient and that their performance caused him prejudice; and is of the view that the Court should await the United States Supreme Court's decision in Padilla v. Kentucky, on the issue whether falsely advising a non-citizen client that a plea of guilty will not result in deportation constitutes ineffective assistance under the Sixth Amendment.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, and HOENS join in JUSTICE WALLACE's opinion. JUSTICE RIVERA-SOTO filed a separate, dissenting opinion.