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ETHICS AND PROFESSIONALISM ISSUES THAT ARISE WHEN

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					 ETHICS AND PROFESSIONALISM ISSUES THAT ARISE WHEN
   CRIMINAL DEFENSE AND IMMIGRATION LAW COLLIDE
                Friday, August 28, 2009

     Katy Parker, ACLU of North Carolina Legal Foundation
     Marty Rosenbluth, Southern Coalition for Social Justice
Jake Sussman, Ferguson Stein Chambers Gresham & Sumter, P.A.

1.   Introduction.

        a.   There are many thorny issues can arise when representing a client in criminal

             court who may also have questionable immigration status.

        b. This session will explore those issues, especially in light of the scheduled

             implementation of the Secure Communities program in every county in North

             Carolina by 2013.



2. Specific Ethical Issues.

        a.   Advising a client to plead guilty without informing the client of implications on

             immigration status.

                 i. NJ Supreme Court recent decision in State v. Nunez-Valdez, 2009 WL

                     2208305 (N.J. Jul. 27, 2009):          allowing withdrawal of plea for

                     misinformation regarding immigration consequences.

                 ii. But see People v. Ford, 86 NY2d 397 (N.Y. 1995); In re Resendiz, 25

                     Cal.4th 230 (Cal. 2001).

                iii. What is prosecutor induces a plea by making a promise he/she can’t

                     keep?     (like no deportation): Santabello v. New York, 404 U.S. 257

                     (1971).

                iv. Does the Sixth Amendment require counsel to advise a client of

                     immigration consequences of a plea?

                         1.    This issue is before the Supreme Court right now in a case called

                               Padilla v. Kentucky.    See Commonwealth of Kentucky v.

                               Padilla, 253 S.W.3d 482 (Ky. 2008) (holding that counsel’s

                               failure to advise defendant of potential for deportation as a
                       consequence of guilty plea provided no basis for setting aside

                       defendant’s sentence), cert. granted, Padilla v. Kentucky, 129

                       S.Ct. 1317 (Feb. 23, 2009).

b. Advising a client regarding immigration consequences of being convicted of

     certain crimes.

          i. See training materials: "Immigration Consequences for criminal

             convictions" on IDS website at www.nccourts.gov.

         ii. Do you have to insist that a competent immigration lawyer be involved in

             the decision whether to go to trial or try to work out a plea?

                  1.   What if client refuses or cannot afford an immigration attorney.

                       What are your ethical obligations as your client’s criminal

                       defense attorney?

c.   Advising clients on bond issues.

          i. effects of bond issues on whether deportation process may begin while

             criminal case is pending

d. What if my criminal client wants to leave the country immediately?

e.   Disclosing a client’s immigration status in criminal case.

f.   Potential conflicts of interest.
253 S.W.3d 482

                             Supreme Court of Kentucky.
                         COMMONWEALTH of Kentucky, Appellant,
                                          v.
                              Jose R. PADILLA, Appellee.

                                No. 2006-SC-000321-DG.
                                      Jan. 24, 2008.
                             Rehearing Denied June 19, 2008.

Background: After defendant entered guilty plea to drug-related charges, he filed
motion for post-conviction relief, alleging that his attorney was ineffective in misadvising
him about the potential for deportation as a consequence of his guilty plea. The Hardin
Circuit Court denied motion, and appeal was taken. The Court of Appeals reversed and
remanded, and the Commonwealth appealed.


Holding: The Supreme Court, Lambert, C.J., held that counsel's failure to advise
defendant about the potential for deportation as a consequence of his guilty plea or
counsel's act of advising defendant incorrectly provided no basis for vacating or setting
aside defendant's sentence.
   Reversed.

   Cunningham, J., dissented and filed opinion in which Schroder, J., joined.


                                      West Headnotes

  KeyCite Citing References for this Headnote

  110 Criminal Law
    110XXXI Counsel
       110XXXI(C) Adequacy of Representation
         110XXXI(C)2 Particular Cases and Issues
           110k1920 k. Plea. Most Cited Cases
           (Formerly 110k641.13(5))

   As collateral consequences were outside the scope of the guarantee of the Sixth
Amendment right to counsel, it followed that counsel's failure to advise defendant about
the potential for deportation as a consequence of his guilty plea or counsel's act of
advising defendant incorrectly provided no basis for vacating or setting aside defendant's
sentence; in neither instance was the matter required to be addressed by counsel, and so
attorney's failure in that regard could not constitute ineffectiveness. U.S.C.A.
Const.Amend. 6; Rules Crim.Proc., Rule 11.42.

*483 Jack Conway, Attorney General of Kentucky, David A. Smith, Assistant Attorney
General, Criminal Appellate Division, Office of the Attorney General, Frankfort, KY,
Counsel for Appellant.

Timothy G. Arnold, Richard E. Neal, Assistant Public Advocates, Department of Public
Advocacy, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Chief Justice LAMBERT.
   This Court granted the Commonwealth's motion for discretionary review. It seeks
reversal of the Court of Appeals opinion remanding to the trial court for an evidentiary
hearing on Appellee's ineffective assistance of counsel claim pursuant to RCr 11.42.

   Appellee Jose Padilla is a native of Honduras who has lived in this country for decades.
He served in the United States military during the Vietnam War. Padilla was indicted by
the Hardin County Grand Jury for trafficking in more than five pounds of marijuana,
possession of marijuana, possession of drug paraphernalia, and operating a tractor/trailer
without a weight and distance tax number. Padilla, represented by counsel, moved to
enter a guilty plea to the three drug-related charges, in exchange for dismissal of the
remaining charge, and a total sentence of ten years on all charges. The plea agreement
provided that Padilla would serve five years of his ten year sentence, and would be
sentenced to probation for the remaining five years. Final judgment was entered October
4, 2002.

    On August 18, 2004, Padilla filed an RCr 11.42 motion for post-conviction relief
alleging that his attorney was ineffective in misadvising him about the potential for
deportation as a consequence of his guilty plea. Padilla alleged that his counsel told him
that he “did not have to worry about immigration status since he had been in the country
so long.” The Hardin Circuit Court denied the RCr 11.42 motion on the basis that a valid
guilty plea does not require that the defendant be informed of every possible
consequence of a guilty plea. It reasoned that since Appellee's bond was changed
because he was suspected of being an illegal alien, he was aware of the possibility of
deportation, and the court noted that counsel did discuss the issue with him. The court
concluded that: “Padilla's counsel does not make a deportation decision and neither does
this Court.”

    On appeal, the Court of Appeals reversed the decision of the Hardin Circuit Court and
remanded the case for an evidentiary hearing. The Court of Appeals had the benefit of
this Court's recent decision in Commonwealth v. Fuartado, FN1 which determined that
collateral consequences are outside the scope of representation required by the Sixth
Amendment and that failure of defense counsel to advise the defendant of possible
deportation consequences is not cognizable as a claim for ineffective assistance of
counsel. However, the majority of the Court of Appeals panel found this case
distinguishable from that unequivocal holding in Fuartado. The Court of Appeals held that
although collateral consequences do not have to be advised, “an affirmative act of ‘gross
misadvice’ relating to collateral matters can *484 justify post-conviction relief.” FN2 The
Court of Appeals concluded that counsel's wrong advice in the trial court regarding
deportation could constitute ineffective assistance of counsel. It remanded Appellee's
case to the trial court for an evidentiary hearing on his motion for RCr 11.42 relief.

FN1. 170 S.W.3d 384 (Ky.2005).


FN2. The court relied on Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir.1988).


   The Commonwealth argues that the Court of Appeals erred in distinguishing this case
from Fuartado, because the legal premise in that case was that deportation is a collateral
consequence of the criminal conviction. The Commonwealth argues that, whether as the
result of misadvice or the failure to advise, deportation is necessarily collateral and not
meaningfully distinguishable from other consequences such as losing the right to vote or
to possess firearms. The Commonwealth argues that the defendant's understanding or
misunderstanding of collateral matters is not implicated with respect to the waiver of
constitutional rights upon entering a guilty plea.
   Appellee responds that the Commonwealth fails to recognize that although most
courts follow the collateral consequences rule, there is generally an exception for
erroneous advice on collateral consequences as opposed to no advice. Additionally,
Appellee disputes the Commonwealth's assertion that he is not facing deportation as a
result of the plea in this case, but because he is an illegal alien. Appellee insists there is
nothing in the record to substantiate that claim by the Commonwealth, but the record
instead shows that he was living in this country as a legal permanent resident even
though he had not obtained American citizenship. Padilla points to his valid Nevada
driver's license, his valid social security number, and his service in the United States
military during the Vietnam War. Padilla argues for a presumption of validity regarding
his immigration status given the evidence he points to in the record.

    Appellee argues that relief is warranted on the basis of ineffective assistance because
his plea was substantially induced by his attorney's mistaken advice regarding his
immigration status. He argues that under Strickland v. Washington,FN3 he cannot be
bound to such a plea, and cites Sparks v. SowdersFN4 as authorizing this result. In Sparks,
the United States Court of Appeals for the Sixth Circuit held that “gross misadvice”
concerning parole eligibility can amount to ineffective assistance of counsel. Sparks relied
on Strader v. Garrison,FN5 which had determined that even though parole eligibility is a
collateral consequence of the guilty plea which an attorney does not have to inform his
client of, once an accused does inquire about it, it may constitute ineffective assistance of
counsel if he is misinformed about it and the erroneous advice induces the plea.

FN3. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


FN4. 852 F.2d 882 (6th Cir.1988).


FN5. 611 F.2d 61, 65 (4th Cir.1979).


   Thus, in some courts a rule has emerged that an attorney who offers grossly
erroneous advice to a defendant which is material in inducing a guilty plea may have
rendered ineffective assistance of counsel.FN6 Appellee correctly asserts that a number
*485 of jurisdictions which have held that failure to advise of a collateral matter is not
ineffective assistance have nevertheless held that there is an exception for cases where
the attorney misadvised the defendant on the consequences of his plea with regard to
immigration.FN7

FN6. See, e.g., Cepulonis v. Ponte, 699 F.2d 573, 577 (1st Cir.1983) (although defendant
need not be informed of the details of his parole eligibility, “misinformation may be more
vulnerable to constitutional challenge than mere lack of information”); Strader v.
Garrison, 611 F.2d 61 at 65; Sparks v. Sowders, 852 F.2d at 885.


FN7. State v. Rojas-Martinez, 125 P.3d 930, 935 (Utah 2005); United States v. Kwan,
407 F.3d 1005 (9th Cir.2005); Gonzalez v. State, 191 Or.App. 587, 83 P.3d 921 (2004);
United States v. Couto, 311 F.3d 179 (2d Cir.2002); Downs-Morgan v. United States, 765
F.2d 1534, 1539-41 (11th Cir.1985).


   We conclude that our unequivocal holding in Fuartado leaves Appellee without a
remedy pursuant to RCr 11.42. As collateral consequences are outside the scope of the
guarantee of the Sixth Amendment right to counsel, it follows that counsel's failure to
advise Appellee of such collateral issue or his act of advising Appellee incorrectly provides
no basis for relief. In neither instance is the matter required to be addressed by counsel,
and so an attorney's failure in that regard cannot constitute ineffectiveness entitling a
criminal defendant to relief under Strickland v. Washington. Accordingly, we reverse the
Court of Appeals and reinstate the final judgment of the Hardin Circuit Court denying RCr
11.42 relief.

All sitting. LAMBERT, C.J., and ABRAMSON, MINTON, NOBLE and SCOTT, JJ., concur.
CUNNINGHAM, J., dissents by separate opinion in which SCHRODER, J., joins.


Dissenting opinion by Justice CUNNINGHAM.
   I respectfully dissent from the excellent writing of our distinguished Chief Justice.

   I believe Commonwealth v. Fuartado is distinguishable in a small, but critical way from
the case before us. In that case, the Court of Appeals concluded that a defense lawyer
has no affirmative duty to inform his or her client of the impact that a guilty plea will
have on civil immigration status. I fully agree.

    In this case, however, if Appellee's claim is to be believed-a prospect still looming
because no hearing was held-he specifically inquired of his counsel about this very
important matter. Appellee had been in the United States for decades and had even
served this country in Vietnam. Again, it is Appellee's contention that his counsel gave
him terribly wrong advice. The majority states that the matter of deportation is “not a
matter required to be addressed by counsel.” Again, I fully agree. But here, Appellee
raised the issue himself. Counsel could have just as easily, and responsibly, responded
that he did not know the answer. Counsel who gives erroneous advice to a client which
influences a felony conviction is worse than no lawyer at all. Common sense dictates that
such deficient lawyering goes to effectiveness. The allegations made by Appellee may not
be credible. But he was at least entitled to a hearing. I do not believe it is too much of a
burden to place on our defense bar the duty to say, “I do not know.” Accordingly, I would
reverse and remand for a hearing.

SCHRODER, J., joins this dissenting opinion.


Ky.,2008.
Com. v. Padilla
253 S.W.3d 482
86 N.Y.2d 397, 657 N.E.2d 265, 633 N.Y.S.2d 270

View National Reporter System version
Briefs and Other Related Documents

The People of the State of New York, Respondent,
v.
Rudolph Ford, Appellant.
Court of Appeals of New York
Argued September 21, 1995;
Decided October 24, 1995
CITE TITLE AS: People v Ford
SUMMARY
Appeal, by permission of an Associate Judge of the Court of Appeals, from an order of
the Appellate Division of the Supreme Court in the Second Judicial Department, entered
June 27, 1994, which (1) reversed, on the law, an order of the Supreme Court (Lewis
Douglass, J.; opn 157 Misc 2d 668), entered in Kings County, granting a motion by
defendant to vacate the judgment convicting him, upon his plea of guilty, of
manslaughter in the second degree, vacating the plea and setting the case down for trial,
(2) denied defendant's motion, and (3) reinstated the judgment of conviction.

People v Ford, 205 AD2d 798, affirmed.

HEADNOTES
Crimes--Plea of Guilty--Trial Judge Not Required to Warn of Deportation Consequences
(1) Trial Judges are not under a duty to warn defendants of the possible deportation
consequences of a guilty plea. A trial court has the constitutional duty to ensure that a
defendant, before pleading guilty, has a full understanding of what the plea connotes and
its consequences. A defendant must be advised of consequences which are “direct”--those
that have a definite, immediate and largely automatic effect on defendant's punishment--
but need not be advised of “collateral consequences”, which are peculiar to the individual
and generally result from the actions taken by agencies the court does not control.
Deportation is a collateral consequence of conviction because it is a result peculiar to the
individual's personal circumstances and one not within the control of the court system.
Accordingly, the trial court need not, before accepting a plea of guilty, advise a defendant
of the possibility of deportation.

Crimes--Right to Counsel--Effective Representation--State Constitution-- Failure to
Warn Defendant of Deportation Consequences of Guilty Plea
(2) The failure of defense counsel to warn defendant of possible deportation
consequences of his guilty plea to manslaughter in the second degree in full satisfaction
of the indictment charging him with manslaughter in the second degree and criminal
possession of a weapon in the second and third degrees did not constitute ineffective
assistance of counsel under NY Constitution, article I, § 6. So long as the evidence, the
law, and the circumstances of a particular case, viewed in totality and as of the time of
the representation, reveal that the attorney provided meaningful representation, the State
constitutional requirement will have been met. In the context of a guilty *398 plea, a
defendant has been afforded meaningful representation when he or she receives an
advantageous plea and nothing in the record casts doubt on the apparent effectiveness of
counsel. Here, each of the charges against defendant constituted a felony, punishable by a
maximum term of 15, 15 and 7 years respectively, and sentences upon the manslaughter
conviction and the second degree possession count could have run consecutively, thereby
exposing defendant to a possible 30-year term of imprisonment. Defendant received
meaningful representation when counsel was able to limit his conviction to manslaughter
in the second degree in full satisfaction of the indictment and to limit the sentence to two
to six years.

Crimes--Right to Counsel--Effective Representation--Federal Constitution-- Failure to
Warn Defendant of Deportation Consequences of Guilty Plea
(3) The failure of defense counsel to warn defendant of possible deportation
consequences of his guilty plea did not constitute ineffective assistance of counsel under
US Constitution 6th Amendment. Under the Federal Constitution a finding of ineffective
assistance of counsel requires a showing that counsel's performance was deficient and
that the deficiency in performance prejudiced defendant. Although the failure to advise a
defendant of the possibility of deportation does not constitute ineffective assistance of
counsel, affirmative misstatements by defense counsel, may, under certain circumstances.
Defendant has not alleged here, however, that counsel incorrectly advised him about the
risk of deportation or that counsel's advice, if any, induced him to plead guilty.

TOTAL CLIENT SERVICE LIBRARY REFERENCES
Am Jur 2d, Criminal Law, §§ 473, 474, 752, 985.
Carmody-Wait 2d, Criminal Procedure §§ 172:1348, 172:1582, 172:1589, 172:1614.
NY Const, art I, § 6.
US Const 6th Amend.
NY Jur 2d, Criminal Law, §§ 52, 55, 2295.
ANNOTATION REFERENCES
Court's duty to advise or admonish accused as to consequences of plea of guilty, or to
determine that he is advised thereof. 97 ALR2d 549.
Adequacy of defense counsel's representation of criminal client regarding guilty pleas. 10
ALR4th 8.
Ineffective assistance of counsel: misrepresentation, or failure to advise, of immigration
consequences of guilty plea--state cases. 65 ALR4th 719.*399
POINTS OF COUNSEL

Beldock Levine & Hoffman, New York City (Melvin L. Wulf, Peter A. Perlman and
Karen Dippold of counsel), David Scheinfeld, Noah Simeon Scheinfeld and Robert Cini
for appellant.I. The court should reject the collateral consequence doctrine as it applies to
deportation and guilty pleas. (People v Harris, 77 NY2d 434; Boykin v Alabama, 395 US
238; People v Harris, 61 NY2d 9; LaRossa Axenfeld & Mitchell v Abrams, 62 NY2d
583; Mathews v Eldridge, 424 US 319; United States v Parrino, 212 F2d 919, 348 US
840; United States v Russell, 686 F2d 35; Michel v United States, 507 F2d 461; United
States v Yearwood; 863 F2d 6; United States v Olvera, 954 F2d 788.)II. Counsel's failure
to inform defendant, an alien, that his plea of guilty to reckless manslaughter would
subject him to deportation, was ineffective assistance of counsel. (McMann v Richardson,
397 US 759; People v Baldi, 54 NY2d 137; People v Harris, 77 NY2d 434; Hill v
Lockhart, 474 US 52; People v Hobson, 39 NY2d 479.)III. Defendant's guilty plea was
not knowing and voluntary because he was not informed and did not know that his guilty
plea to reckless manslaughter would subject him to deportation. (People v Harris, 61
NY2d 9; People v Seaberg, 74 NY2d 1; People v Moore, 71 NY2d 1002; Boykin v
Alabama, 395 US 238; McCarthy v United States, 394 US 459; North Carolina v Alford,
400 US 25; Brady v United States, 397 US 742; Mabry v Johnson, 467 US 504;
Henderson v Morgan, 426 US 637; Carnley v Cochran, 369 US 506.)IV. The preferred, if
not exclusive, remedy for a claim of ineffective assistance of counsel is a postconviction
proceeding brought pursuant to CPL 440.10. (People v Bachert, 69 NY2d 593; People ex
rel. Douglas v Vincent, 50 NY2d 901; People v Brown, 45 NY2d 852; People ex rel.
Sedlak v Foster, 299 NY 291; People v Cooks, 67 NY 2d 100.)Charles J. Hynes, District
Attorney of Kings County, Brooklyn (Seth M. Lieberman, Roseann B. MacKechnie and
Richard T. Faughnan of counsel), for respondent.I. Defendant's guilty plea was voluntary,
knowing, and intelligent, even if, at the time of the plea, defendant was unaware of the
possibility of deportation, because deportation is a collateral consequence of a criminal
conviction. (North Carolina v Alford, 400 US 25; Brady v United States, 397 US 742;
People v Fiumefreddo, 82 NY2d 536; People v Moore, 71 NY2d 1002; People v Harris,
61 NY2d 9; People v Modica, 64 NY2d 828; People v Blim, 46 NY2d 934; People v
Johnson, 205 AD2d 707, 84 NY2d 868; *400 People v Robbins, 118 AD2d 820; People v
Brown, 80 NY2d 361.)II. The plea record and the presentence report permitted review of
defendant's claim that the trial court had erred in failing to inform him of the deportation
consequences of a conviction of second degree manslaughter. Thus, CPL 440.10 (2) (c)
mandated denial of that claim. In any event, that claim is without merit because
constitutional due process does not require that a court inform a defendant of collateral
consequence of a guilty plea. (People v Cooks, 67 NY2d 100; People v Morales, 58
NY2d 1008; United States v Osiemi, 980 F2d 344; United States v Montoya, 891 F2d
1273; United States v Romero-Vilca, 850 F2d 177; United States v Campbell, 778 F2d
764; United States v Russell, 686 F2d 35; Cordero v United States, 533 F2d 723;
Fruchtman v Kenton, 531 F2d 946, 429 US 895; United States v Santelises, 476 F2d
787.)III. Assuming that defendant's counsel failed to advise defendant of the deportation
consequences of a guilty plea to second degree manslaughter, that failure would not
constitute ineffective assistance of counsel under either the Federal or State Constitution.
(Hill v Lockhart, 474 US 52; Strickland v Washington, 466 US 668; People v Hobot, 84
NY2d 1021; People v Flores, 84 NY2d 184; People v Baldi, 54 NY2d 137; People v
Gagliardo, 209 AD2d 872, 84 NY2d 1011; People v Avila, 177 AD2d 426; People v Dor,
132 Misc 2d 568; United States v Banda, 1 F3d 354; Varela v Kaiser, 976 F2d 1357.)IV.
Defendant did not provide sufficient documentary proof to warrant summary vacatur of
his judgment of conviction. (People v Winkler, 74 NY2d 704; People v Lawson, 191
AD2d 514.)Jonathan E. Gradess, Albany, and Stacy Wolf for New York State Defenders
Association, amicus curiae.I. The constitutional right to effective assistance of counsel
requires that defense attorneys advise alien clients that deportation may result from entry
of a guilty plea. (Gideon v Wainwright, 372 US 335; Wong Wing v United States, 163
US 228; Hill v Lockhart, 474 US 52; Johnson v Zerbst, 304 US 458; Strickland v
Washington, 466 US 668; People v Baldi, 54 NY2d 137; Jones v Barnes, 463 US 745;
People v Satterfield, 66 NY2d 796; People v Adams, 53 NY2d 241; People v Riley, 70
NY2d 523.) II. The decision of the Court below violates the guarantees of competent
counsel and due process of law derived under the New York State Constitution (People v
Avila, 177 AD2d 426; People v Boodhoo, 191 AD2d 448; United States v Parrino, 212
F2d 919; United States v Sambro, 454 F2d 918; *401 United States v Santelises, 476 F2d
787; Michel v United States, 507 F2d 461; United States v Campbell, 778 F2d 764;
United States v Yearwood, 863 F2d 6; People v Johnson, 66 NY2d 398; People v
Bigelow, 66 NY2d 417.)Lucas Guttentag, New York City, Judy Rabinovitz and Arthur
Eisenberg for American Civil Liberties Union and others, amici curiae.I. Appellant was
deprived of the effective assistance of counsel in violation of the Sixth Amendment to the
Federal Constitution. (Strickland v Washington, 466 US 668; Michel v United States, 507
F2d 461; United States v Russell, 686 F2d 35; United States v Parrino, 212 F2d 919, 348
US 840; United States v Del Rosario, 902 F2d 55, 498 US 942; Flores-Arellano v
Immigration & Naturalization Serv., 5 F3d 360; Downs-Morgan v United States, 765 F2d
1534; Cuyler v Sullivan, 446 US 335.)II. The New York Constitution provides an
independent and adequate basis for holding that defense counsel's failure to advise a
client about the deportation consequences of a plea constitutes ineffective assistance of
counsel. (People v Baldi, 54 NY2d 137; People v Benn, 68 NY2d 941; People v Rivera,
71 NY2d 705; People v Roy, 122 AD2d 482.)Stern & Elkind (Kenneth H. Stern of the
Colorado Bar, admitted pro hac vice, of counsel), Claudia Slovinsky, New York City, and
Lory Rosenberg, of the District of Columbia Bar, admitted pro hac vice, for American
Immigration Lawyers Association and others, amici curiae.The failure of defense counsel
to adequately investigate the law and advise his client regarding the immigration
consequences of his plea constitutes the ineffective assistance of counsel. (Fong Haw Tan
v Phalen, 333 US 6; Jordan v De George, 341 US 223; United States ex rel. Klonis v
Davis, 13 F2d 630; Downs-Morgan v United States, 765 F2d 1534; Government of
Virgin Is. v Pamphile, 604 F Supp 753; Michel v United States, 507 F2d 461; Strickland
v Washington, 466 US 668; Hill v Lockhart, 474 US 52; Coles v Peyton, 389 F2d 224.)
OPINION OF THE COURT

Simons, J.
(1-3) This appeal raises the question whether Trial Judges or defense counsel are under a
duty to warn defendants of the possible deportation consequences before entering a guilty
plea. We conclude that there is no such duty, and we therefore affirm.*402

I
On September 28, 1990, 19-year-old defendant Rudolph Ford was showing a gun to his
girlfriend, Alicia Byron. Believing he had removed the bullets, defendant put the gun to
her head and pulled the trigger. The gun discharged, and Byron was killed instantly.
Defendant was indicted for manslaughter in the second degree (Penal Law § 125.15 [1]),
criminal possession of a weapon in the second degree (Penal Law § 265.03), and criminal
possession of a weapon in the third degree (Penal Law § 265.02 [4]). With the advice of
counsel, defendant pleaded guilty to manslaughter in the second degree in full
satisfaction of the indictment and was sentenced to two to six years in prison. After
serving the minimum sentence, he was paroled.
Defendant is a documented legal alien from Jamaica and, following his release, the
Immigration and Nationalization Service instituted proceedings for his deportation based
upon his conviction of a crime involving moral turpitude (see, 8 USC § 1251 [a] [2] [A]
[i]).

Consequently, defendant moved in the Supreme Court for an order changing the
manslaughter judgment to a judgment convicting him of criminally negligent homicide.
The court granted the motion to the extent of vacating his plea and directing a new trial. It
held that “where the facts surrounding the episode to which defendant pleads would not
suggest to a reasonable person that the plea involves an admission of grossly immoral
activity then, in those rare cases, the defendant should be told that even though what he
describes to the court does not involve moral turpitude, he may nevertheless be deported,
if he pleads guilty.” (157 Misc 2d, at 671.) The Appellate Division, construing
defendant's motion as one to vacate the plea pursuant to CPL 440.10, reversed Supreme
Court's order and reinstated the judgment of conviction. It held that under the doctrine of
collateral consequences the court was not obligated to warn defendant of possible
deportation before accepting his plea and that the failure of counsel to advise his client of
that possibility before permitting him to plead did not constitute ineffective assistance of
counsel (see, People v Ford, 205 AD2d 798).

II
A trial court has the constitutional duty to ensure that a defendant, before pleading guilty,
has a full understanding ofwhat*403 the plea connotes and its consequences (People v
Harris, 61 NY2d 9, 19; Boykin v Alabama, 395 US 238, 244). The court is not required
to engage in any particular litany when allocuting the defendant, but due process requires
that the record must be clear that “the plea represents a voluntary and intelligent choice
among the alternative courses of action open to the defendant” (North Carolina v Alford,
400 US 25, 31, citing Boykin v Alabama, 395 US 238, supra; see also, People v Moissett,
76 NY2d 909, 910-911). Manifestly, a criminal court is in no position to advise on all the
ramifications of a guilty plea personal to a defendant. Accordingly, the courts have drawn
a distinction between consequences of which the defendant must be advised, those which
are “direct”, and those of which the defendant need not be advised, “collateral
consequences” (Fruchtman v Kenton, 531 F2d 946, 948, cert denied 429 US 895; and
see, Michel v United States, 507 F2d 461, 466). A direct consequence is one which has a
definite, immediate and largely automatic effect on defendant's punishment (Cuthrell v
Director, Patuxent Inst., 475 F2d 1364, cert denied 414 US 1005). Illustrations of
collateral consequences are loss of the right to vote or travel abroad (Meaton v United
States, 328 F2d 379), loss of civil service employment (United States v Crowley, 529 F2d
1066, cert denied 425 US 995), loss of a driver's license (Moore v Hinton, 513 F2d 781),
loss of the right to possess firearms (Penal Law § 400.00 [1] [b]) or an undesirable
discharge from the Armed Services (Redwine v Zuckert, 317 F2d 336). The failure to
warn of such collateral consequences will not warrant vacating a plea because they are
peculiar to the individual and generally result from the actions taken by agencies the
court does not control (see, United States v Sambro, 454 F2d 918, 922; Sanchez v United
States, 572 F2d 210, 211).
(1) Deportation is a collateral consequence of conviction because it is a result peculiar to
the individual's personal circumstances and one not within the control of the court
system. Therefore, our Appellate Division and the Federal courts have consistently held
that the trial court need not, before accepting a plea of guilty, advise a defendant of the
possibility of deportation (see, People v Boodhoo, 191 AD2d 448; People v Williams,
189 AD2d 910, lv denied 81 NY2d 978; Fruchtman v Kenton, supra; Cuthrell v Director,
Patuxent Inst., supra; United States v Parrino, 212 F2d 919, 921, cert denied 348 US
840). We adopt that rule and conclude that in *404 this case the court properly allocuted
defendant before taking his plea of guilty to manslaughter in the second degree.FN*

FN* The New York Sentencing Reform Act of 1995 (L 1995, ch 3) now requires trial
courts to advise defendants of the possibility of deportation. However, the failure to do so
does not affect the voluntariness of a guilty plea (NY Sentencing Reform Act of 1995 §§
30, 74 [b]).
III
Nor did the failure of counsel to warn defendant of the possibility of deportation
constitute ineffective assistance of counsel.

The right to effective assistance of counsel is guaranteed by the Federal and State
Constitutions (US Const 6th Amend; NY Const, art I, § 6). The standard for measuring
the performance of counsel under the New York Constitution has been stated as follows:

“So long as the evidence, the law, and the circumstances of a particular case, viewed in
totality and as of the time of the representation, reveal that the attorney provided
meaningful representation, the constitutional requirement will have been met” (People v
Baldi, 54 NY2d 137, 147 [emphasis added]).

The phrase “meaningful representation” does not mean “perfect representation” (People v
Modica, 64 NY2d 828, 829). In the context of a guilty plea, a defendant has been
afforded meaningful representation when he or she receives an advantageous plea and
nothing in the record casts doubt on the apparent effectiveness of counsel (People v
Boodhoo, 191 AD2d 448, 449, supra; People v Mayes, 133 AD2d 905, 906).

(2) In the present case, defendant was indicted for manslaughter in the second degree,
criminal possession of a weapon in the second degree and criminal possession of a
weapon in the third degree. Each of these charges constitutes a felony, punishable by a
maximum term of 15, 15 and 7 years respectively. Moreover, sentences upon the
manslaughter conviction and the second degree possession count could have run
consecutively, thereby exposing the defendant to a possible 30-year term of
imprisonment (Penal Law § 70.25; and see, People v Robbins, 118 AD2d 820).
Defendant received meaningful representation when counsel was able to limit his
conviction to manslaughter in the second degree in full satisfaction of the indictment and
to limit the sentence to two to six years.*405
(3) Nor has defendant stated grounds for relief under the Federal Constitution. The two-
part test in Strickland v Washington (466 US 668) requires a showing that counsel's
performance was deficient and that the deficiency in performance prejudiced defendant.
Although the failure to advise a defendant of the possibility of deportation does not
constitute ineffective assistance of counsel (see, United States v Del Rosario, 902 F2d 55,
59, cert denied 498 US 942; United States v Campbell, 778 F2d 764, 768; United States v
Gavilan, 761 F2d 226, 228), some Federal courts have held that affirmative
misstatements by defense counsel, may, under certain circumstances (Downs-Morgan v
United States, 765 F2d 1534, 1540-1541; United States v Santelises, 509 F2d 703, 704;
United States v Campbell, 778 F2d 764, 768-769; cf., People v Ramos, 63 NY2d 640).
Defendant has not alleged here, however, that counsel incorrectly advised him about the
risk of deportation or that counsel's advice, if any, induced him to plead guilty.

Thus, we conclude that the defendant was not denied his constitutional rights when he
pleaded guilty. The court was under no obligation to inform the defendant of any possible
collateral consequences of his plea, including the possibility of deportation, nor was
defendant denied effective assistance of counsel.

Accordingly, the order of the Appellate Division should be affirmed.


Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.

Order affirmed.*406



Copr. (c) 2009, Secretary of State, State of New York
N.Y. 1995.
PEOPLE v FORD
86 N.Y.2d 397, 657 N.E.2d 265, 633 N.Y.S.2d 270

Briefs and Other Related Documents (Back to top)

• 1995 WL 17051695 (Appellate Brief) Brief of American Immigration Lawyers
Association, American Immigration Law Foundation Legal Action Center, and the
National Immigration Project of the National Lawyers Guild, as Amici Curiae for the
Appellant (Mar. 21, 1995)
• 1995 WL 17051691 (Appellate Brief) Brief of the New York State Defenders
Association Amicus Curiae (Mar. 01, 1995)
• 1995 WL 17051693 (Appellate Brief) Brief Amici Curiae Submitted by the New York
Civil Liberties Union, The American Civil Liberties Union, and Prisoner's Legal Services
in Support of Appellant (Feb. 28, 1995)

END OF DOCUMENT
--- A.2d ----, 200 N.J. 129, 2009 WL 2208305 (N.J.)

Only the Westlaw citation is currently available.

Supreme Court of New Jersey.
STATE of New Jersey, Plaintiff-Respondent,
v.
JosẼ NUÑEZ-VALDẼZ, Defendant-Appellant.
Argued March 9, 2009.
Decided July 27, 2009.
As Corrected July 30, 2009.

SYNOPSIS

Background: Defendant, who pled guilty to fourth-degree criminal sexual contact and
was deported based on his plea, filed a petition for post-conviction relief. The Superior
Court of New Jersey, Law Division, Camden County, granted defendant a new trial. The
State appealed. The Superior Court, Appellate Division, 2008 WL 2743963, reversed.
Defendant appealed.

Holding: The Supreme Court, Wallace, Jr., J., held that trial counsel's act of providing
false or misleading information as to the deportation consequences of defendant's guilty
plea prejudiced defendant, and therefore constituted ineffective assistance under the state
constitution.

Reversed and remanded.


Rivera-Soto, J., filed a dissenting opinion.

West Headnotes

[1]   KeyCite Citing References for this Headnote

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Under New Jersey law, ineffective-assistance-of-counsel claims are particularly suited for
post-conviction review because they often cannot reasonably be raised in a prior
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For a defendant to establish a case of ineffective assistance of counsel, the defendant
must show that defense counsel's performance was deficient, and that there exists a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. U.S.C.A. Const.Amend. 6.

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Trial counsel's act of providing false or misleading information as to the deportation
consequences of defendant's guilty plea to fourth-degree criminal sexual contact
prejudiced defendant, and therefore constituted ineffective assistance under the state
constitution; defendant testified that if he had known that he would be deported as a
result of his guilty plea he would not have pled guilty. Antiterrorism and Effective Death
Penalty Act of 1996, §§ 302(a)(43)(A), 422(a)(2)(A)(iii), 8 U.S.C.A. §§ 1101(a)(43)(A),
1227(a)(2)(A)(iii).

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A reviewing court is required to affirm the findings of the trial court if they could
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An appellate court should not disturb the trial court's findings merely because it might
have reached a different conclusion were it the trial tribunal or because the trial court
decided all evidence or inference conflicts in favor of one side in a close case.
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A trial court's findings should be disturbed only if they are so clearly mistaken that the
interests of justice demand intervention and correction.

Justin T. Loughry, Moorestown, argued the cause for appellant (Loughry and Lindsay,
attorneys).

Nancy P. Scharff, Assistant Prosecutor, argued the cause for respondent (Warren W.
Faulk, Camden County Prosecutor, attorney; Ms. Scharff and Robert K. Uyehara, Jr.,
Assistant Prosecutors, on the letters in lieu of brief).

Jeffrey S. Mandel, Morristown, argued the cause for amici curiae Association of Criminal
Defense Lawyers of New Jersey and American Civil Liberties Union of New Jersey
(Pinilis Halpern and Edward L. Barocas, attorneys).

Carol M. Henderson, Assistant Attorney General, argued the cause for amicus curiae
Attorney General of New Jersey (Anne Milgram, Attorney General, attorney).
Justice WALLACE, JR., delivered the opinion of the Court.
*1 As part of a plea agreement, defendant José Nuńez-Valdéz pled guilty to fourth-degree
criminal sexual contact in exchange for a State-recommended probationary sentence. The
trial court accepted the plea and sentenced defendant consistent with the plea agreement.
Based on his conviction, defendant was subsequently deported. Defendant filed a petition
for post-conviction relief asserting that his counsel misinformed him that his plea would
have no immigration consequences, and that if he had received accurate information
about his rights and liabilities under immigration law, he would not have pled guilty.
Following a plenary hearing, the trial court found that defendant's attorneys materially
misinformed defendant concerning deportation, that defendant would not have pled guilty
if he had received correct information, and that defendant demonstrated that his guilty
plea was not made knowingly, voluntarily or intelligently. Consequently, the court
ordered that defendant's plea be withdrawn and the matter proceed to trial.

The State appealed. The Appellate Division disagreed with the trial court's findings and
reversed. We granted defendant's petition for certification and now reverse. We hold that
there was sufficient credible evidence for the trial court to conclude that defendant was
misinformed by counsel and that defendant would not have pled guilty if he had received
accurate information that his plea would result in deportation.

I.
We recite the procedural history and facts together. In June 1997, defendant was accused
of second-degree attempted sexual assault of a seventeen-year-old girl and four counts of
fourth-degree criminal sexual contact. In June 1998, he agreed to plead guilty to a one-
count accusation charging fourth-degree criminal sexual contact in exchange for a
recommended probationary sentence. Consistent with the plea agreement, the trial court
imposed a five-year probationary sentence.

On September 27, 2000, the United States Immigration Court ordered that defendant be
deported to his native Dominican Republic because of his conviction on the fourth-degree
criminal sexual contact offense. Defendant appealed and the Board of Immigration
affirmed the order in August 2002. Defendant was subsequently deported.

On October 11, 2002, defendant filed a petition for post-conviction relief (PCR). He
alleged that his trial counsel misinformed him that there would be no immigration
consequences arising from his guilty plea, and that he would not have pled guilty if his
attorney had correctly informed him that his conviction would require deportation.
Further, defendant claimed that the factual statement he offered at the time of his guilty
plea did not support his conviction.

The PCR hearings began in June 2004. With the aid of a court-appointed interpreter,
defendant testified that he was born in the Dominican Republic, came to the United
States when he was 18 years old, does not speak or write English, is not a citizen of the
United States, and lived in Camden with his wife and three children at the time of the
offense. He stated, however, that at the time of his guilty plea he was a legal permanent
resident.

*2 Defendant recalled that in 1998 he was charged with sexual assault. With the help of
his brother, Luis Nuñez-Valdẽz, he hired Aaron Smith, Esquire, to represent him.
Defendant asserted that Smith told him to plead guilty in exchange for a five-year
probationary sentence, and that if he did not, he would receive a ten-year prison sentence.
He stated that he asked Smith about his immigration consequences and Smith answered
that “nothing like that” was ever going to happen.

Defendant said that at the plea hearing, Troy A. Archie, Esquire, appeared as his attorney
instead of Smith. With the aid of an interpreter, defendant conferred with Archie, who
indicated that if he did not plead guilty he would go to jail for ten years. Defendant stated
that he raised the issue of his immigration status and that Archie said that it had “no part
in this case.” Defendant admitted that throughout the plea process he never specifically
asked his attorneys about deportation, only about his immigration status. Defendant
claimed that he would never have pled guilty if he had known it would result in his
deportation.

On cross-examination the prosecutor questioned defendant concerning the plea form.
Defendant claimed that neither Archie nor the interpreter reviewed the plea form with
him, and that the interpreter told him to plead guilty without reading the papers to him.
Defendant said that he was unaware that question seventeen on the plea form informed
him that he may be deported as a result of his guilty plea. He maintained that he would
not have pled guilty if he had been aware of question seventeen.
Defendant also asserted his innocence of the crime of criminal sexual contact because he
did not use force and he did not touch the victim's private parts. He said his attorney told
him to say he touched the victim. Defendant further claimed that everything he said under
oath at his plea hearing was false because his attorney “pressured [him] to do so.”

Defendant's brother Luis testified that he hired Smith to represent defendant and that he
acted as his brother's interpreter at the meeting with Smith because he speaks more
English than defendant. Luis claimed that he asked Smith if there would be immigration
or deportation problems because of this case and that Smith said that there would be
none.

Archie testified on behalf of the State. Archie said that at the time of the plea, he had
been practicing law for two years and that his practice was ninety percent criminal.
Archie stated that, with the assistance of an interpreter, he read each line of the plea
agreement to defendant, explained it to him, and asked if he had any questions. Based
upon defendant's answers, Archie then circled the applicable responses on the plea form.
He said he was “pretty sure” he talked about deportation, but he could not recall the
substance of the conversation or whether defendant was concerned about it. He believed
the subject came up in reviewing question seventeen on the plea form that asked
defendant “[d]o 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 that he told defendant
that deportation was a “possibility.” He did not request a Spanish version of the plea
form, although the Megan's Law form he used had a paragraph translated into Spanish.
Archie admitted that he never told defendant that he would be deported if he pled guilty.

*3 After hearing testimony and the arguments of counsel, the trial court rendered a
comprehensive written opinion. The court summarized the testimony and assessed the
credibility of each witness, accepting portions of that testimony and rejecting other
portions. Although the court rejected much of defendant's testimony, it also considered
defendant's lack of education, lack of sophistication, and modest level of intellect to find
credible defendant's assertion that he raised the issue of his immigration status with both
Smith and Archie and that deportation was a central concern when he pled guilty.

The court also expressed concerns about the reliability of the testimony of Luis.
However, on the issue of Smith's purported advice to defendant regarding deportation,
the court accepted Luis's testimony that Smith advised defendant that no immigration
problems would result if defendant pled guilty. The trial court found that based on
Smith's advice, it was reasonable for defendant to believe that he would not be deported
as a result of pleading guilty.

In reviewing Archie's testimony, the court was very skeptical that he did not recall
defendant being concerned about deportation. The court reasoned that it did not make
sense that defendant, who had been in the United States for eighteen years with his wife
and children, would not be concerned about deportation.
The trial court expressly found that “defendant was extremely concerned that his
immigration status not be implicated” by his guilty plea, that the issue of immigration
status was “material” to his decision to plead guilty, and that he expressed his
immigration concerns to Smith and Archie. Additionally, the court found that Smith told
defendant he would not be deported because the charges against him were not serious,
and that Archie's statement that deportation was a “possibility” was inexact and
inaccurate because it did not sufficiently convey the fact that deportation was a certainty
under federal law. Based on those findings, the court concluded that defendant was
affirmatively misinformed by his attorneys as to the immigration consequences that
would flow from a plea of guilty and that his guilty plea “was not made knowingly,
voluntarily or intelligently.” The court entered an order vacating the guilty plea and
reinstating the charges.

After remanding the matter for reconstruction of the oral argument at the PCR hearing,
the Appellate Division reversed in an unpublished opinion. The panel reviewed the
record and concluded that the trial court's findings were clearly mistaken and that the
interests of justice demanded intervention and correction. The panel listed five sources of
concern with the trial court's factual findings. First, the panel noted “the lack of factual
foundation” for the court's conclusion that defendant's primary concern was deportation
and that he would not have pled guilty if properly informed on the subject. Second, the
panel cited the court's selective and unexplained acceptance of certain testimony from
defendant and his brother while finding other statements by the two to be totally
incredible. Third, the panel took issue with the trial court's rejection of Archie's testimony
that he told defendant that deportation could occur. Fourth, the panel disagreed with the
court's implicit determination that Archie was unfamiliar with controlling immigration
law and misinformed defendant. And finally, the panel stated that it could discern no
reasonable basis for the court's determination that defendant regarded question seventeen
on the plea form to be inapplicable to him, that he justifiably answered that question in a
manner contrary to the truth, and that Archie's statements led him to do so. Consequently,
the panel reversed the judgment of the trial court.

*4 Defendant appealed and we granted certification. 196 N.J. 599, 960 A.2d 394 (2008).
We granted amicus curiae status to the Attorney General of New Jersey and jointly to the
Association of Criminal Defense Lawyers of New Jersey (ACDL) and the American
Civil Liberties Union of New Jersey (ACLU).

II.
Defendant essentially contends that counsel materially misinformed him about the
immigration consequences of his plea and that he would not have pled guilty if he had
been correctly informed that his plea would result in deportation. Further, defendant
argues that the Appellate Division erred in rejecting the trial court's findings based on
that court's crediting of some, but not all, of his and other witnesses' testimony.

The State counters that the Appellate Division correctly overturned the trial court's grant
of relief because deportation was not material to defendant's decision to plead guilty. The
State argues that the Appellate Division properly rejected the trial court's factual findings
because they were not based on credible evidence, but rather on the self-serving and
contradictory testimony of defendant and his brother. Further, the State contends that
counsel's advice exceeded the requirements for effective assistance of counsel because
defendant was able to and did appeal the deportation order, which meant that deportation
was not mandatory. Additionally, the State adds that because immigration status is only a
collateral consequence of a conviction rather than a penal consequence, the lack of
immigration advice was not a material problem with the plea and, thus, the plea should
stand.

Amicus, the Attorney General, argues that this case presents the Court with the
opportunity to address the “growing problem of how to ensure that a knowing guilty plea
is entered by a non-citizen defendant.” The Attorney General contends that based on our
case law, whether deportation is a penal or a collateral consequence is not the relevant
issue, but instead we need to have procedures in place to ensure that non-citizen
defendants are aware of the potential deportation consequences at the time of a guilty
plea. The Attorney General suggests that the trial court should personally address
defendants and inform them that deportation may result from their conviction. Finally,
the Attorney General concludes that in this case, because “yes” was circled on the plea
form in response to question seventeen, defendant was aware that he could be deported as
a result of his guilty plea.

Amici ACDL and ACLU jointly urge that question seventeen on the plea form may be
misleading in its use of the phrase “may be deported,” especially in cases in which
deportation is a certainty. They contend that, regardless of the collateral versus penal
distinction, it is ineffective assistance for counsel to provide erroneous information
concerning possible immigration ramifications or to engage in actual misrepresentations
of the consequences of a guilty plea. They argue that justice and fairness require that
counsel present defendant with deportation consequences prior to accepting a plea.
Finally, they recommend that this Court amend the plea form to include additional
questions that focus on (1) the federal law requirement of mandatory deportation for an
“aggravated felony” and (2) the right of defendant to seek legal advice regarding their
immigration status prior to entering a plea of guilty.

III.
A.
*5 This case essentially presents a claim of ineffective assistance of counsel based on
defendant's assertions that counsel provided misleading information on the consequences
of a guilty plea. Defendant contends that his attorneys told him to accept the plea offer in
exchange for a probationary sentence and that the plea would not affect his immigration
status.

Preliminarily, we note our agreement with amici that the traditional dichotomy that turns
on whether consequences of a plea are penal or collateral is not relevant to our decision
here. In State v. Bellamy, 178 N.J. 127, 138-39, 835 A.2d 1231 (2003), we approved of
Chief Justice Wilentz's observation that whether a defendant should be advised of “
‘certain consequences of a guilty plea should not depend on ill-defined and irrelevant
characterizations of those consequences.’ ” Id. at 139, 835 A.2d 1231 (quoting State v.
Heitzman, 107 N.J. 603, 606, 527 A.2d 439 (1987) (Wilentz, C.J., dissenting)). That
observation applies here.

However, unlike Bellamy, where the plea form did not include a reference to the Sexually
Violent Predator Act,FN1 id. at 133, 835 A.2d 1231, the plea form that defendant signed
included question seventeen, which is intended to alert a defendant that there may be
deportation consequences as a result of a plea of guilty. Thus, we presently treat
deportation similar to a penal consequence that requires notice to defendant.
Nevertheless, the question remains whether counsel renders ineffective assistance if he or
she provides false or misleading information concerning the deportation consequences of
a plea of guilty.

[1] [2] Under New Jersey law, ineffective-assistance-of-counsel claims “are
particularly suited for post-conviction review because they often cannot reasonably be
raised in a prior proceeding.” State v. Preciose, 129 N.J. 451, 460, 609 A.2d 1280 (1992).
For a defendant to establish a case of ineffective assistance of counsel, the defendant
must show that “[defense] counsel's performance was deficient,” and that “there exists ‘a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.’ ” Id. at 463-64, 609 A.2d 1280 (quoting
Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698
(1984)). We approved of that two-part test in State v. Fritz, 105 N.J. 42, 58, 519 A.2d 336
(1987), in which we held that the federal standard for evaluating an ineffective-
assistance-of-counsel claim approved in Strickland, supra, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674, should apply in defining our state constitutional guarantee of effective
assistance of counsel.

When a guilty plea is part of the equation, we have explained that “[t]o set aside a guilty
plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's
assistance was not ‘within the range of competence demanded of attorneys in criminal
cases'; and (ii) ‘that there is a reasonable probability that, but for counsel's errors, [the
defendant] would not have pled guilty and would have insisted on going to trial.’ ” State
v. DiFrisco, 137 N.J. 434, 457, 645 A.2d 734 (1994) (citations omitted) (second alteration
in original).

B.
*6 [3] We turn next to assess whether defendant met his burden of proving that he was
deprived of his state constitutional right to effective assistance of counsel. We elect to
decide this case under our state constitution because we recognize that a federal remedy
may depend on whether deportation is a penal or collateral consequence. As noted above,
our analysis does not depend on whether deportation is a penal consequence.FN2 Rather,
the issue is whether it is ineffective assistance of counsel for counsel to provide
misleading, material information that results in an uninformed plea, and whether that
occurred here.
To assess whether defendant's counsel performed deficiently and misinformed him of the
deportation consequences of his plea, we first outline the immigration law in effect at the
time defendant entered his plea in 1998. Congress passed two statutes in 1996, the
Antiterrorism and Effective Death Penalty Act (AEDPA), 8 U.S.C.A. § 1189, and the
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-
208, Div. C, 110 Stat. 3009-546 (codified in various sections of 8 U.S.C.A .), both of
which expanded the offenses for which an immigrant could be removed from this country
and eliminated the traditional judicial review of final removal orders. See Melinda Smith,
Criminal Defense Attorneys and Noncitizen Clients: Understanding Immigrants, Basic
Immigration Law & How Recent Changes in Those Laws May Affect Your Criminal
Cases, 33 Akron L.Rev. 163, 193-94 (1999). Specifically, IIRIRA “made the
classification of a legal permanent resident as an ‘aggravated felon’ a complete bar to
relief from deportation.” Id. at 200; 8 U.S.C.A. § 1227(a)(2)(A)(iii). “Aggravated felony”
is defined as “murder, rape, or sexual abuse of a minor.” 8 U.S.C.A. § 1101(a)(43)(A).
Thus, the crime to which defendant pled guilty as part of the plea agreement, one count of
fourth-degree criminal sexual contact with a seventeen-year-old girl, required mandatory
deportation. See also Susan L. Pilcher, Justice Without a Blindfold: Criminal Proceedings
and the Alien Defendant, 50 Ark. L.Rev. 269, 287-300 (1997) (describing voluntary
departure as one of few remaining options for relief from deportation for defendants
accused of “aggravated felonies”).

In this case, although there were some factual disputes concerning the advice the
attorneys gave defendant, it was not challenged that Smith, the attorney defendant
retained, told defendant that there would be no immigration consequences. To be sure,
the advice Archie gave defendant at the plea hearing was disputed. Viewed in favor of the
State, Archie informed defendant that there was a “possibility” he would be deported, and
Archie filled out the plea form with defendant and circled “yes” next to the question, “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?” However, viewed in favor of defendant,
Archie testified that he could not recall the substance of what he discussed with
defendant, that defendant inquired about immigration consequences of his plea, and that
Archie reiterated Smith's assurance that the plea would not affect his immigration status.
Despite the trial court's criticism of defendant's credibility on certain factual assertions,
the court believed defendant's testimony that immigration consequences were very
important to him and that Smith and Archie told him that his immigration status would
not be affected by a decision to plead guilty.

*7 [4] [5] [6] A reviewing court is required to affirm the findings of the trial court
if they could reasonably have been reached on sufficient credible evidence in the record.
We recently reinforced that principle, stating that “[a]n appellate court ‘should give
deference to those findings of the trial judge which are substantially influenced by his
opportunity to hear and see the witnesses and to have the feel of the case, which a
reviewing court cannot enjoy.’ ” State v. Elders, 192 N.J. 224, 244, 927 A.2d 1250
(2007) (quoting State v. Johnson, 42 N.J. 146, 161, 199 A.2d 809 (1964)). We
emphasized that
[a]n appellate court should not disturb the trial court's findings merely because ‘it might
have reached a different conclusion were it the trial tribunal’ or because ‘the trial court
decided all evidence or inference conflicts in favor of one side’ in a close case. A trial
court's findings should be disturbed only if they are so clearly mistaken ‘that the interests
of justice demand intervention and correction.’ In those circumstances solely should an
appellate court ‘appraise the record as if it were deciding the matter at inception and
make its own findings and conclusions.’

[ Ibid. (citations omitted).]

In the present case, the Appellate Division concluded that the trial court's findings were
not supported by an adequate factual foundation. We disagree. Our review of the record
satisfies us that based on the testimony of the witnesses, the trial court did not abuse its
discretion in crediting defendant's account that he received misleading or false
information about immigration consequences. Indeed, the trial court was not obliged to
credit all of defendant's testimony and was “entitled to draw inferences from the evidence
and make factual findings based on [its] ‘feel of the case.’ ” Elders, supra, 192 N.J. at
245, 927 A.2d 1250.

That is precisely what the trial court did. The court accepted some of defendant's
testimony and rejected other portions. Further, the trial court gave reasons for its disbelief
of Archie's account that he told defendant that deportation was a possibility. The court
reasoned that if Archie were as familiar with immigration law as he professed to have
been at the time of the plea, then he would have outlined to defendant the deportation
consequences in greater detail, i.e. that deportation was a virtual certainty. Additionally,
it was not disputed that neither Smith nor Archie ever informed defendant that federal
law mandated deportation for “any alien who is convicted of an aggravated felony,” 8
U.S.C.A. § 1227(a)(2)(A)(iii), and that the crime to which defendant would plead guilty
was an aggravated felony.

Applying the required deferential standard, we conclude that there was sufficient credible
evidence in the record to support the trial court's findings. It was error for the panel to
disregard those factual findings and to make new findings.

The second part of the test for ineffective assistance of counsel is whether “ ‘there is a
reasonable probability that, but for counsel's errors, [the defendant] would not have pled
guilty and would have insisted on going to trial.’ ” DiFrisco, supra, 137 N.J. at 457, 645
A.2d 734 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203,
210 (1985)) (alteration in original). This is known as the “prejudice prong.”

*8 The trial court found that “defendant was extremely concerned that his immigration
status not be implicated if he followed the advice of his attorneys to plead guilty, and that
his immigration status was a central consideration in his decision to accept or reject the
plea agreement.” The court concluded that
[b]ecause the immigration consequence resulting from pleading guilty to the charge
against him was material to the defendant's decision, and because the defendant's
attorneys misinformed him as to the immigration consequence of pleading guilty, and
because the defendant reasonably relied on the misinformation provided by his attorneys
in deciding to plead guilty, the defendant has met his burden and demonstrated by a
preponderance of evidence that his ... guilty plea was not made knowingly, voluntarily or
intelligently.

In short, the trial court accepted defendant's testimony that he would not have pled guilty
if he had known he would be deported, and found that defendant did not give a knowing,
voluntary or intelligent plea. Based on the trial court's findings, which are amply
supported by the record, defendant satisfied the prejudice prong of the ineffective-
assistance-of-counsel analysis by showing that he would not have pled guilty but for the
inaccurate information from counsel concerning the deportation consequences of his plea.
Accordingly, we reverse the judgment of the Appellate Division and reinstate the trial
court's order that directed withdrawal of defendant's plea and reinstatement of the matter
for trial.FN3

IV.
Finally, we share the concern of all amici that our plea procedures should be modified to
help ensure that a non-citizen defendant receives information sufficient to make an
informed decision regarding whether to plead guilty. We recently revised our plea form,
effective October 8, 2008, to address the concern that it did not adequately advise non-
citizen defendants about immigration consequences. At that time, we divided question
seventeen into two parts to read as follows:

17a. Are you a citizen of the United States?

[yes] [no]

If no, answer question # 17b

17b. 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?

We agree that further refinement of the plea form is needed. We approve of the
suggestion of the ACDL and the ACLU that the plea form should inform a non-citizen
defendant that “if your plea of guilty is to a crime considered an aggravated felony under
federal law you will be subject to deportation/removal” and that the form should instruct
defendants of their right to seek legal advice regarding their immigration status. Further,
it is preferable that the trial court inquire directly of defendant regarding his knowledge
of the deportation consequences of his plea.

We direct the Criminal Practice Committee and the Administrative Director to revise the
plea form to include the above. We have attached a suggested amendment to the plea
form as exhibit A.
VI.
*9 The judgment of the Appellate Division is reversed. The matter is remanded to the
trial court for proceedings consistent with this opinion.

Justice RIVERA-SOTO, dissenting.
*9 Reversing a judgment of the Appellate Division that bound defendant to a plea
agreement he entered into more than a decade ago, the majority asserts that “there was
sufficient credible evidence for the trial court to conclude that defendant was
misinformed by counsel and that defendant would not have pled guilty if he had received
accurate information that his plea would result in deportation.” Ante at ----, --- A.2d at ---
-. Because that conclusion is factually, legally and jurisprudentially unsound, I dissent.

I.
Between April and June 1997-over twelve years ago-defendant José Nuñez-Valdéz, then
thirty-six years old, repeatedly sexually assaulted his neighbor, a seventeen-year-old girl.
Defendant was arrested and charged with second-degree attempted sexual assault, in
violation of N.J.S.A. 2C:5-1 and 2C:14-2(c), and fourth-degree criminal sexual contact,
in violation of N.J.S.A. 2C:14-3(b) and 2C:14-2(c)(1). Defendant waived prosecution by
indictment and, on June 10, 1998-over eleven years ago-defendant entered a guilty plea
to an accusation charging him with fourth-degree criminal sexual contact, in violation of
N.J.S.A. 2C:14-3(b).FN4 Specifically, the accusation charged that defendant committed-
and defendant admitted under oath to committing-an act of criminal sexual contact “by
intentionally touching the intimate parts of [his seventeen-year-old victim] either directly
or through the clothing for the purpose of degrading or humiliating the victim or sexually
arousing or gratifying [himself] through the use of force or coercion[.]” See also N.J.S.A.
2C:14-1(d) (defining “sexual contact”).

As part of that plea hearing, defendant, with the assistance of his counsel, Troy A.
Archie, Esq.,FN5 and a court interpreter, completed a three-page plea form and, given the
nature of the charge to which defendant pled, two supplemental “Megan's Law” forms,
one of which was printed in both English and Spanish. See N.J.S.A. 2C:7-1 to -21
(providing for system of registration and community notification for sex offenders and
offenders who commit other predatory acts against children). Question no. 17 of the plea
form specifically 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?” Defendant circled “yes”
as his answer. In response to question no. 23-“Are you satisfied with the advice you have
received from your lawyer?”-defendant also circled “yes” as his answer. In response to
the final question on the plea form-question no. 24: “Do you have any questions
concerning this plea?”-defendant circled “no.” Defendant signed each page of the plea
form and presented it to the court.

*10 During the plea hearing, Mr. Archie represented to the court that he “had an
opportunity to go through the plea forms with [his] client” and that defendant has
“initialed the first two and signed the last page, indicating the truthfulness of the
information provided.” (emphasis supplied). He noted that defendant “also signed the
applicable waiver of indictment forms and the Megan's Law forms.” Mr. Archie then
“present[ed defendant] to the Court for questioning.”

After defendant was placed under oath and the presence of an interpreter was noted on
the record, the following colloquy occurred between the trial court and the defendant:

THE COURT: Mr. Nuñez, I understand that you're going to be pleading guilty, is that
true?

DEFENDANT: Yes.

....

THE COURT: You have been represented in this matter by Troy Archie. Have you been
fully satisfied with the legal advice he has provided?

DEFENDANT: Yes.

THE COURT: Are you currently under the influence of any medication?

DEFENDANT: No.

THE COURT: Are you pleading guilty voluntarily and of your own free will?

DEFENDANT: Yes.

THE COURT: All right. You have on the table in front of you a three-page plea form
setting out the terms and conditions of the plea agreement. Is that your signature on the
bottom of the third page?

DEFENDANT: Yes.

THE COURT: And are those your initials on the bottom of the other two pages? FN6

DEFENDANT: Yes.

THE COURT: At the time you signed the plea form, did you understand the questions?

DEFENDANT: Yes.

THE COURT: Were the answers that you gave there the truth?

DEFENDANT: Yes.

THE COURT: And you also have in front of you a supplemental plea form for certain sex
offenses. Is that your signature on that document?
DEFENDANT: Yes.

....

THE COURT: And at the time you signed it, did you understand that there are special
conditions that apply to people who plead guilty to sex offenses?

DEFENDANT: Yes.

[ (Emphasis supplied).]

Defendant's plea was accepted. On July 31, 1998, defendant was sentenced; the record
reflects that he was represented by Juan J. Gonzalez, Esq., “covering today for Troy
Archie, the attorney of record[,]” and that an interpreter was “interpreting for Mr.
Nuñez.” At the outset, Mr. Gonzalez noted that defendant was neither a United States
citizen nor national; counsel pointed out that defendant was a citizen of the Dominican
Republic and that he was a resident alien in the United States. Mr. Gonzalez asked that
defendant be sentenced pursuant to the terms of his plea agreement, and defendant
waived his right of allocution at sentencing. As provided in the plea agreement, defendant
was sentenced to a term of five years probation, subject to the conditions that (1)
defendant register as a Megan's Law offender, (2) defendant undergo a psychiatric
evaluation and receive any prescribed treatment, (3) defendant have no contact with the
victim, and (4) defendant pay certain applicable fines, penalties, assessments and fees.
Defendant later was ordered to provide a blood sample for DNA analysis, as required by
the DNA Database and Databank Act of 1994, as amended, N.J.S.A. 53:1-20.17 to -
20.37. Defendant never appealed his conviction or sentence.FN7
On January 26, 2000, the United States Immigration and Naturalization Service (now
known as Immigration and Customs Enforcement, or “ICE”) commenced deportation
proceedings against defendant based on his conviction. Those proceedings resulted in an
order dated September 27, 2000 from the United States Immigration Court deporting
defendant to his country of origin, the Dominican Republic. That order was affirmed by
the federal Board of Immigration Appeals on August 2, 2002.

*11 Facing certain deportation, defendant was left with only one avenue of possible
relief: to attack the cause of the deportation order, his conviction for fourth-degree
criminal sexual contact. On October 11, 2002, defendant challenged his conviction by
filing a petition for post-conviction relief (PCR). In it he claimed that his defense counsel
had misled him as to the immigration consequences of his guilty plea and that he would
not have pled guilty had he known that the plea would result in his deportation.
Defendant also claimed that his guilty plea lacked a sufficient factual basis, a claim that is
utterly without merit and is belied by the plain words on the pages of the transcript of
defendant's guilty plea hearing.

Over a fourteen-month period, the PCR court conducted a four-day hearing on
defendant's PCR petition. On June 14, 2004, the PCR court received defendant's
testimony, which was consistent with the assertions made in his written PCR
petition.FN8 In respect of his conversations with Mr. Smith, the defense counsel he
originally retained, but who never appeared in court on defendant's behalf, defendant,
again through an interpreter, testified as follows:

Q. Did you discuss with Mr. Smith anything about your immigration status?

A. Yes, and he told me that nothing like that was ever going to happen.

Q. Well, did you ask him about this criminal case and what it might mean for you as an
immigrant?

A. Yes, and he told me that nothing was going to happen to me.

Recounting his discussions with Mr. Archie, who represented defendant at the guilty plea
hearing, defendant testified:
Q. Did you discuss with [Mr. Archie] anything about your immigration status?

A. Yes.

Q. And what did you talk about with that lawyer?

A. I asked him if immigration will play a part in this case if I pled guilty and he told me
no, it would just be five years probation. That's it.

Defendant conceded that his change of heart had nothing to do with any assertion of
innocence, but only with the collateral consequences of his plea:

Q. Okay. Now, going back to the time that you pled guilty. If you had known that the
result of pleading guilty would be to be deported from the United States, if you had
known that would be the result, would that have changed your decision to plead guilty?

A. Yes.

....

Q. .... If you had known you would be deported, would you have wanted to go to trial
instead?

A. Yes. I would not have pled guilty.

Changing his emphasis, defendant then cast blame on everyone save himself in respect of
knowledge of the immigration consequences of his guilty plea:
Q. Now, let me ask you about the guilty plea for just a moment.
Did anyone explain to you while you were in front of the judge that you would be
deported if-because of the guilty plea? Did the judge tell you that?

A. No.

Q. Now, there was-do you remember filling out with your attorney a several page long
form about your guilty plea?

*12 A. No, I didn't. The attorney filled it out by himself. That's all.

....

Q. [Showing defendant the executed plea form.] Do you see your name or initials on the
bottom of the first page?

A. Yes. Yes.

Q. And on the second page?

A. Yes.

Q. And on the third page?

A. Yes.

Q. Did you sign that?

A. Yes.

Q. Now this form [indicating the executed plea form], is written in the English language.
Is that right, Mr. Nuñez?

A. Yes.

Q. Are you able to read this form?

A. No.

Q. Do you remember whether your attorney or anybody else translated the form for you?

A. No. There was a woman speaking, but I was never told anything about that.

Q. What do you mean about that?

A. Like telling me that something was going to happen or that. No, no.
Q. You mean with immigration?

A. Correct, no.

Defendant's protestations of blame did not survive cross-examination when, being asked
about his plea hearing and the execution of the plea form beforehand, he testified as
follows:

Q. And [during the plea hearing] you had an interpreter in court translating for you again,
right?

A. Yes.

Q. Was the interpreter who was in court the same person who is meeting with you and
[Mr. Archie]?

A. Yes.

More to the point, defendant was forced to recognize his predicament: that, by his own
admission, he had to be lying either during his sworn testimony at the plea hearing or
during his testimony in the PCR hearing. Conveniently selecting the former and all the
while consistently laying blame elsewhere, he testified that:
Q. Okay. So if I get this straight, everything that you said in court when you pled guilty
was false?

A. Yes.

Q. And you recall you were under oath when you gave that testimony?

A. Yes.

Q. So you're admitting that you lied under oath when you were in court the day you pled
guilty?

A. Yes, because the attorney pressured me to do so.

On July 1, 2005, the PCR court heard the testimony of defendant's brother, Luis Nuñez-
Valdéz, who testified as to the two conversations in which he participated. First, he
explained his version of the conversation with Mr. Smith concerning the retention of Mr.
Smith as counsel for defendant, and the conversation with Mr. Gonzalez, defendant's
sentencing counsel, that occurred immediately preceding the sentencing hearing.
Defendant's brother admitted that he was not a party to the conversation among
defendant, Mr. Archie (defendant's counsel at the plea hearing), and the interpreter during
which the plea form was completed. Tellingly, that was the only conversation during
which defendant claimed he was told there would be no immigration consequences to the
plea deal, and also when defendant now claims he was “pressured” to plead guilty.
On July 25, 2005, the PCR court heard Mr. Archie's testimony. Called as a witness by the
State, Mr. Archie testified that he met with defendant immediately before the June 10,
1998 plea hearing in the company of a court-appointed interpreter. Identifying
defendant's signature, the signature of the assistant prosecutor and his own signature on
the plea form, Mr. Archie testified:

*13 Q. Did you go over this form with Mr. Nuñez-Valdéz?

A. Yes, I did.

Q. Do you recall when it was you went over this form with him?

A. It would have been the date of the plea agreement, 6/10/98.

Q. Would that also be the date that you met Mr. Nuñez-Valdéz in court?

A. Yes.

Q. Okay. Now, in going over this form with Mr. Nuñez-Valdéz, how did you go over the
form with him?

A. With the assistance of the interpreter, I read each line item, numbered item, and
explained it to him and answered any questions he had.

Q. Okay. Now, the circled answers on there, who answered-who circled the answers on
this plea form?

A. I circled the answers.

Q. Okay. And based on what did you circle these answers?

A. Based on the responses from Mr. Nuñez.

The State then focused on the plea form questions concerning possible deportation
consequences of a guilty plea:
Q. I'm going to direct your attention specifically to Question Number 17.

Did you go over Question Number 17 with Mr. Nuñez-Valdéz?

A. Yes.

Q. And do you recall the nature of the conversation you had with Mr. Nuñez-Valdéz
when you went over that with him?
A. I wouldn't be able to say the nature of the conversation word-for-word, but we talked
about deportation.

Q. Okay. Did he- do you remember if he asked you anything about deportation or
immigration?

A. I don't specifically remember him being concerned about deportation.

Q. With regard to Question 17, though, did you read Question 17 to him?

A. Yes.

Q. And the answer that's circled there, what was the basis for your circling that answer?

A. Based on his response that he understood the question.

[ (Emphasis supplied).]

Putting the lie to defendant's assertion that his sole concern in respect of his guilty plea
was his immigration status, Mr. Archie testified as follows:

Q. Okay. Now, when you went over this plea form with him in what appeared to be-
rather, do you recall roughly what was the main gist of his concerns when you went over
this with him?

A. The main gist of his concerns was incarceration.

Q. Okay. Do you recall if he asked you about deportation or immigration?

A. No, I do not.

Q. Did-now, when you say incarceration was the main gist of the conversation with him,
do you recall if he asked you anything in particular about incarceration?

A. I just remember he was concerned about whether or not he was going to jail.

Q. Did he ask you that during this going over the plea form with him?

A. Yes.

Q. Did he ask you that more than once?

A. Not only did he ask me, but the family members [who] were there with him.

On cross-examination, Mr. Archie explained that he had studied immigration law in law
school and that, as of the date of defendant's plea, he was well aware of the federal
statutory provisions that trigger deportation when a particular species of felony has been
committed. Addressing that topic squarely, Mr. Archie testified as follows:

*14 Q. Now, what you haven't told us, Mr. Archie, is what did you tell Mr. Nuñez, if you
can remember, about immigration and this case?

A. I'm pretty sure we talked about deportation based on the question that's on there.

Q. But what I'm asking you, sir, is what did you tell him?

A. Word-for-word, I can't remember exactly what I told him.

Q. But you're pretty sure that you spoke about deportation.

A. Absolutely.

Q. And you don't remember what it is you said, correct?

A. No.

Q. But doing the best you can sitting here today, best you can tell us is that the topic of
immigration and deportation was a part of your discussion, right?

A. Yes.

Turning to defendant's primary focus-whether he would be incarcerated-Mr. Archie
testified that:
Q. Well, you said that incarceration was of concern to Mr. Nuñez. Is that right?

A. Yes.

Q. You don't remember whether Community Supervision for Life was a concern to him?
You don't remember one way or the other?

A. No. What I do remember is as long as he wasn't going to jail, he was satisfied.

On redirect examination, Mr. Archie returned to the question of whether defendant had
been advised of the immigration consequences of his guilty plea:

Q. Now, do you recall on deportation what advice, if any, you gave him?

A. I told him it's a possibility that he would be deported.

Q. Okay. Do you recall why you may have told him that?
A. Well, basically, it's on the form, one, and it's a sexual assault case, so there's a chance
that you will be deported. It doesn't mean that you are guaranteed to be deported.

On recross-examination, that point was explored even further:
Q. And in terms of telling Mr. Nuñez, you tell us today, that possibly he could be
deported, do you remember the exact words that you used?

A. There's a possibility that you may be deported.

Q. Now, when I was asking you questions 10 minutes ago, you didn't remember what
words you used, but now you're telling us that you told him it was a possibility he would
be deported?

A. I can't tell you that's word-for-word, but I know that's the general conversation.

Q. Do you remember him raising any questions about what you meant by that?

A. I remember his main concern was whether or not he was going to jail.

Q. But my question is did he say to you what do you mean a possibility? Strong
possibility? Weak possibility? Possible possibility? Do you remember him saying
anything or don't you?

A. No, I don't remember him going into that.

Q. And, so, you didn't define it any further, correct? Am I right?

A. Not that I can recall.

The PCR court then heard argument on August 1, 2005 FN9 and, on November 7, 2005,
it issued its decision granting defendant's petition. Crediting, in part, defendant's
testimony, the PCR court noted that, “given the defendant's naivet[é], this court finds that
when the defendant expressed concern to his attorneys about immigration problems, he
was actually expressing concern about what might happen to him as a result of pleading
guilty-including being deported-as a result of his resident alien status.” It stated that it
was “not at all impressed with the defendant's credibility given the totality of his
testimony.” That said, the PCR court nevertheless found that “the defendant did express
concerns about his legal status in this country as a result of pleading guilty and that his
concern in this regard was expressed to both Attorney Smith and Attorney Archie.”

*15 The PCR court incorrectly couched the issue before it, asserting that “[b]ecause the
issue of his immigration status was material to the defendant's decision to plead guilty,
the outcome of this case turns on whether Attorneys Smith and Archie misinformed the
defendant.” It reasoned that “[w]hen a defendant fails to raise immigration as an issue
with his attorney in conjunction with a plea bargain, the defendant's attorney has no
independent obligation to raise the issue of immigration to his client because, in that
situation, immigration is a collateral matter.” (citations omitted). It articulated that, in
contrast, “[i]mmigration was not a collateral issue for this defendant; it was a central
consideration in his decision to accept or reject the plea agreement.” In the PCR court's
view, “defendant believed that his immigration status would not be affected no matter
how he responded on the plea form.” It concluded as follows:

Because the immigration consequence resulting from pleading guilty to the charge
against him was material to the defendant's decision, and because the defendant's
attorneys misinformed him as to the immigration consequence of pleading guilty, and
because the defendant reasonably relied on the misinformation provided by his attorneys
in deciding to plead guilty, the defendant has met his burden and demonstrated by a
preponderance of the evidence that his [June 10, 1998] guilty plea was not made
knowingly, voluntarily or intelligently.

It therefore ordered that defendant's guilty plea be vacated and the original warrant
against him be reinstated.FN10
The State appealed, and the Appellate Division reversed. Rejecting the PCR court's
findings as “ ‘so wide of the mark[that] a mistake must have been made [,]’ ” (quoting
State v. Johnson, 42 N.J. 146, 161, 199 A.2d 809 (1964)), the panel explained that

[its] concern with the PCR judge's findings stems from (1) the lack of factual foundation
for the judge's conclusion that defendant's primary concern was deportation and thus his
unquestioned acceptance of the assertion that defendant would not have pled guilty if
properly informed on the subject; (2) his selective and unexplained acceptance of
testimony by defendant and his brother regarding their allegedly futile inquiries into the
possibility of deportation, while declaring the remainder of the testimony by the two
witnesses to be “totally incredible” and unreliable; (3) his rejection of testimony by
Archie, while otherwise “highly regarded,” that he recalled discussing the subject of
deportation with defendant and informing him of the possibility that such could occur; (4)
his implicit determination that Archie was unfamiliar with controlling immigration law
and misinformed defendant; and (5) the lack of any foundation for the conclusion that
defendant's affirmative response to question seventeen was of no import.

The Appellate Division could “find nothing in the record that would counteract Archie's
testimony that defendant's concerns were primarily focused on whether he would serve a
custodial sentence.” With reluctance, it reasoned that it “cannot accord the same weight
as the judge did to defendant's statement that he would not have pled guilty if accurately
informed of the likelihood of deportation.”
*16 Rightly discarding a number of the PCR court's findings as lacking proper foundation
in the record, the Appellate Division addressed the PCR court's credibility determinations
as follows:

An acceptance of the judge's overall credibility determinations leads us to conclude that
Archie, not defendant or his brother, was the more credible witness. The accuracy of that
conclusion is borne out by a close reading of Archie's testimony, which discloses Archie's
careful delineation of those facts that he recalled from defendant's case, which he stated
in some detail, and those that he did not. While it is true that seven years had intervened
between Archie's representation of defendant at the plea hearing and his testimony,
Archie's description of what took place stood unimpeached by testimony the PCR judge
viewed as credible. In that regard, Archie testified that, with the aid of an interpreter, he
discussed question seventeen and its implications with defendant. To be sure, Archie did
not state that deportation was the certainty that the PCR judge posited. Nonetheless, we
do not find therein the misstatements that the PCR judge perceived to exist, particularly
in the absence of any evidence that deportation inevitably occurs upon conviction of a
statutorily enumerated aggravated felony or evidence of a uniform lack of success in
appealing from an order of deportation.

For those reasons, the panel concluded that “contrary to the PCR judge's conclusion, we
find that defendant failed to offer competent proof that he was misinformed of the
consequences of his plea, State v. Nichols, 71 N.J. 358, 361, 365 A.2d 467 (1976), and
thus that the plea was not given voluntarily, knowingly, and intelligently. State v. Taylor,
80 N.J. 353, 362, 403 A.2d 889 (1979); R. 3:9-2.” It thus ruled that, “[a]s a result, we do
not find the manifest injustice to exist that defendant must demonstrate in order to vacate
his plea, following sentencing. Taylor, supra, 80 N.J. at 362, 403 A.2d 889; R. 3:21-1.”

This appeal followed.

II.
According to the majority, “[t]his case essentially presents a claim of ineffective
assistance of counsel based on defendant's assertions that counsel provided misleading
information on the consequences of a guilty plea.” Ante at ----, --- A.2d at ----. In the
majority's view, State v. Bellamy, 178 N.J. 127, 835 A.2d 1231 (2003), provides the rule
for decision. In Bellamy, the Court reaffirmed that, “[t]raditionally, the determination of
whether defendant must be informed of certain consequences of his plea turns on whether
those consequences are ‘direct or penal,’ in which case defendant must be informed, or
‘collateral,’ in which case defendant need not be informed.” Id. at 137, 835 A.2d 1231
(quoting State v. Heitzman, 209 N.J.Super. 617, 622, 508 A.2d 1161 (App.Div.1986),
aff'd o.b., 107 N.J. 603, 527 A.2d 439 (1987)). However, after citing to that time-honored
principle, Bellamy discarded it, claiming that “ ‘[i]t matters little if the consequences are
called indirect or collateral when in fact their impact is devastating.’ ” Id. at 138, 835
A.2d 1231 (quoting Heitzman, supra, 107 N.J. at 606, 527 A.2d 439 (Wilentz, C.J.,
dissenting)).

*17 Bellamy addressed a distinction without a difference. At issue in that case was
whether a defendant pleading guilty to a qualifying offense should be informed of the
potential for a later civil commitment under the Sexually Violent Predator Act (SVPA),
N.J.S.A. 30:4-27.24 to -27.38. Id. at 131, 835 A.2d 1231. In that unique context, the
Court adopted a hybrid approach: without declaring that the SVPA's effect was either, on
the one hand, “direct” or “penal,” or, on the other, “collateral,” the Court held that
“fundamental fairness requires that prior to accepting a plea to a predicate offense, the
trial court must inform a defendant of the possible consequences under the [SVPA].”
Ibid. Thus, Bellamy's “fundamental fairness” exception, by its own terms, is limited to
those instances when the same sovereign imposes consequences arising from a guilty plea
that “may be so severe that a defendant may be confined for the remainder of his or her
life [.]” Id. at 139, 835 A.2d 1231. That said, Bellamy nevertheless “continue [d] to stress
the necessity of determining whether a consequence is direct or penal when analyzing
whether a defendant must be informed of a particular consequence.” Ibid.

That bedrock concept-that the benchmark for whether a defendant must be informed of
consequences before pleading guilty remains as whether the consequence is “direct” or
“penal”-was reaffirmed within two years of Bellamy. In State v. Johnson, 182 N.J. 232,
236, 864 A.2d 400 (2005), this Court again made clear that, “[a]lthough a court is not
responsible for informing a defendant of all consequences flowing from a guilty plea, at a
minimum the court must ensure that the defendant is made fully aware of those
consequences that are ‘direct’ or ‘penal.’ ” (quoting State v. Howard, 110 N.J. 113, 122,
539 A.2d 1203 (1988)). We explained that

[t]he requirement that the court be satisfied in that respect serves several salutary ends. It
avoids having a defendant enter into a plea hampered by being “misinformed ... as to a
material element of a plea negotiation, which [he] has relied [on] in entering his plea.”
State v. Nichols, 71 N.J. 358, 361, 365 A.2d 467 (1976). As a collateral matter, the entire
criminal justice system's interest in finality is advanced. Clarity as to the direct and penal
consequences of a defendant's guilty plea promotes the binding resolution of charges
because it serves to ensure that a defendant's “expectations [are] reasonably grounded in
the terms of the plea bargain.” State v. Marzolf, 79 N.J. 167, 183, 398 A.2d 849 (1979).

[ Id. at 236-37, 864 A.2d 400.]

In that context, it cannot be said that immigration consequences are “direct” or “penal” so
as to justify the vacation of defendant's guilty plea. The majority tacitly concedes that
precise point when it “elect[s] to decide this case under our state constitution because we
recognize that a federal remedy may depend on whether deportation is a penal or
collateral consequence.” Ante at ----, --- A.2d at ----. Traditional analysis requires that a
consequence be deemed “direct” or “penal” before its materiality can ever be considered
to impeach a guilty plea. That analysis would demand the conclusion that defendant's
belated claim is immaterial to his guilty plea. For that reason, the majority is forced to
seek another, different avenue of relief: the claimed ineffective assistance of counsel
based on the provision of alleged misinformation.

III.
*18 Acknowledging that, under a traditional rubric defendant would be barred from
relief, the majority shifts gears and announces instead that its “analysis does not depend
on whether deportation is a penal consequence.” Ante at ----, --- A.2d at ----. At bottom,
the majority sidesteps “the distinction between collateral consequences and penal
consequences.” Ante at ----, --- A.2d at ---- n. 2. According to the majority, “[r]ather, the
issue is whether it is ineffective assistance of counsel for counsel to provide misleading,
material information that results in an uninformed plea, and whether that occurred here.”
Ante at ----, --- A.2d at ----. The majority recognizes that “[f]or a defendant to establish a
case of ineffective assistance of counsel, the defendant must show [ (1) ] that defense
counsel's performance was deficient, and [ (2) ] that there exists a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would have been
different.” Ante at ----, --- A.2d at ---- (citations, internal quotation marks, and editing
marks omitted). That test is often referred to as the Strickland/Fritz test for ineffective
assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,
2068, 80 L.Ed.2d 674, 698 (1984); State v. Fritz, 105 N.J. 42, 58, 519 A.2d 336 (1987). It
is to an application of that test that one must now turn.

Applying the first prong of the Strickland/Fritz analysis, the majority focuses on whether
counsel's performance was deficient. See State v. Preciose, 129 N.J. 451, 460, 609 A.2d
1280 (1992). To define the level of proficiency required, the majority then detours
through federal immigration law ultimately to conclude that the advice defendant claimed
he was given-a claim roundly contradicted by at least one of the lawyers defendant
claimed gave it to him-was wrong.FN11 Ignoring common sense, the majority exalts
defendant's testimony above that of all others solely because “[a] reviewing court is
required to affirm the findings of the trial court if they could reasonably have been
reached on sufficient credible evidence in the record [,]” ante at ----, --- A.2d at ----, and
thus concludes that “the [PCR] court did not abuse its discretion in crediting defendant's
account that he received misleading or false information about immigration
consequences.” Ante at ----, --- A.2d at ----. Because the majority further reasons that
“there was sufficient credible evidence in the record to support the trial court's
findings[,]” it perforce concludes that “[i]t was error for the panel to disregard those
factual findings and to make new findings.” Ante at ----, --- A.2d at ----.

That is far from enough. As the majority readily notes, there is a second prong to the
Strickland/Fritz test, that is, the “prejudice prong.” Ante at ----, --- A.2d at ----. In the
majority's view, defendant satisfied this part of the test simply by asserting that “he
would not have pled guilty but for the inaccurate information from counsel concerning
the deportation consequences of his plea.” Ante at ----, --- A.2d at ----. Prejudice cannot
be so easily demonstrated.

*19 In the majority's view, the simple assertion that “I-was-misled-and-I-would-not-
have-pled-guilty-if-I-had-been-told-of-a-consequence-of-my-plea-that-is-neither-direct-
nor-penal” suffices to satisfy both prongs of the Strickland/Fritz analysis. If so, then that
test lacks substance or meaning. We have explained “ ‘[t]he first prong of the test is
satisfied by a showing that counsel's acts or omissions fell outside the wide range of
professionally competent assistance considered in light of all the circumstances of the
case.’ ” State v. Allegro, 193 N.J. 352, 366, 939 A.2d 754 (2008) (quoting State v.
Castagna, 187 N.J. 293, 314, 901 A.2d 363 (2006)). We also have stated that
Strickland/Fritz's “second prong is satisfied by a defendant's showing that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at 367, 939 A.2d 754 (citations and internal
quotation marks omitted). We have emphasized that Strickland/Fritz's “second prong-that
there is a reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different-is an exacting standard: the error committed
must be so serious as to undermine the court's confidence in the jury's verdict or the result
reached.” Ibid. (citations, internal quotation marks, and editing marks omitted).

Gauged against that standard, it is disingenuous to credit in the least defendant's self-
serving recantation of his guilty plea. It is child's play to acknowledge that defendant, in a
last ditch effort to avoid the consequences of his own actions, needed to claim that his
lawyers told him there would be no immigration consequences to his plea. As defendant
now reasons, facing certain deportation, what other choice, shy of impugning his lawyers,
the interpreters and the court, did he have? Yet, we need not fall prey to such
maneuverings. In measuring defendant's credibility, one must take into account-which
neither the PCR court nor the majority does-that this defendant has placed himself in the
position where he must pick his poison: he must assert either that he perjured himself at
the guilty plea hearing, or that he perjured himself at the PCR hearing. Neither result
bodes well for his credibility.

In contrast, Mr. Archie-who the PCR court described as a lawyer who “has appeared
before this court on numerous occasions and is held in high regard by this court as a
person and for his work as a lawyer”-testified without qualification that he was aware of
the immigration consequences of a guilty plea; that, in those now bygone pre-9/11 days,
he “absolutely” discussed immigration consequences with defendant; and that he advised
defendant that there was “a possibility that he would be deported.” More importantly, Mr.
Archie testified unequivocally that “[t]he main gist of [defendant's] concerns was
incarceration[;]” that what “he was concerned about [was] whether or not he was going to
jail[;]” and that defendant did not raise any deportation concerns. In the battle of
credibility, Mr. Archie-who truly has no interest in the outcome of defendant's PCR
application-wins unquestionably. Defendant has failed woefully to demonstrate either
that his counsel's performance was deficient or that such deficient performance caused
defendant prejudice.

*20 Aided by the clarity of hindsight, the relevant facts emerge without distortion.
Defendant, with the assistance of his lawyer and an interpreter, reviewed the plea form
and unequivocally confirmed his understanding that if he was not a United States citizen
or national, he might be deported by virtue of his plea of guilty. Before the court,
defendant, again aided by his counsel and an interpreter, testified under oath that he was
pleading guilty because he was guilty, that he had reviewed the plea form and had signed
it of his own free will, and that he was satisfied with his counsel's performance. At
sentencing, defendant, once more with his lawyer's and an interpreter's assistance, was
present when his lawyer spread upon the record that defendant was neither a United
States citizen nor national, but a resident alien from the Dominican Republic. It was only
after he was ordered deported-more than four years after he already had accepted without
protest or objection the terms of his plea-that defendant belatedly claims his plea was
neither voluntary, nor knowing, nor intelligent. Just as his claim that his plea lacked
foundation because he did not use force on his victim is belied by the plea transcript-
where defendant plainly states that, yes indeed, he did use force in the sexual assault on
his victim-so too defendant's claim that he was misinformed of the immigration
consequences of his plea is belied by the plea form and the testimony of Mr. Archie.
IV.
There is a separate, independent reason this Court should stay its hand. Shortly after
argument in this matter, amicus the Attorney General of New Jersey brought “to the
Court's attention the recent grant of certiorari by the United States Supreme Court in
Kentucky v. Padilla, 253 S.W.3d 482 (Ky.2008), cert. granted, --- U.S. 1317[, 129 S.Ct.
1317, 173 L.Ed.2d 582] (Feb. 23, 2009).” That case raises the precise issue presented
here: “If a criminal defense attorney falsely advises a non-citizen client that his plea of
guilty will not result in deportation, can that misadvice constitute ineffective assistance of
counsel under the Sixth Amendment?” Brief of Petitioner, at i. In that case, “[p]etitioner
Jose Padilla, a longtime lawful permanent resident of the United States and U.S. Army
veteran, pleaded guilty in 2002 to a state felony offense for marijuana drug trafficking.”
Id. at 2. Padilla asserted that he pled guilty “on the advice of defense counsel that he did
not need to worry about deportation because he had been in this country for so long.”
Ibid. He complained that, “[i]n fact, the Kentucky drug trafficking offense is an
‘aggravated felony’ under federal law that effectively subjects Padilla to mandatory
deportation.” Id. at 2-3. He explained that “[t]he Kentucky Supreme Court nonetheless
denied Padilla's motion to vacate his plea on the grounds of ineffective assistance of
counsel [, holding] that advice on the ‘collateral consequence’ of deportation is outside
the scope of the Sixth Amendment guarantee, and that neither failure to advise nor even
affirmative misadvice about such consequences can give rise to a claim of ineffective
assistance of counsel.” Id. at 3. He argues that “[t]he Kentucky rule has no basis in
precedent or logic, and this Court should reject it.” Ibid.

*21 With considerable understatement, amicus the Attorney General notes that “[t]he
issues raised in Padilla are similar to those raised by the defendant in this case, and the
United States Supreme Court decision in Padilla may be relevant to the disposition in this
matter.” In point of fact, the issues in Padilla are identical to those in this case.
Furthermore, our standard for the ineffective assistance of counsel draws its genesis from
and is identical to federal precedent, see Fritz, supra, 105 N.J. at 58, 519 A.2d 336
(adopting federal Strickland standard under state constitution and holding that “under
Article I, paragraph 10 of the State Constitution a criminal defendant is entitled to the
assistance of reasonably competent counsel, and that if counsel's performance has been so
deficient as to create a reasonable probability that these deficiencies materially
contributed to defendant's conviction, the constitutional right will have been violated”).
That conclusion has been reaffirmed time and time again, as even a small handful of our
precedents conclusively shows. See State v. Echols, 199 N.J. 344, 357-58, 972 A.2d 1091
(2009) (stating that, in Fritz, “we addressed a criminal defendant's constitutional right to
the assistance of ‘reasonably competent counsel’ and adopted the standards for evaluating
ineffective assistance of counsel claims established by the United States Supreme Court
in Strickland”); State v. Loftin, 191 N.J. 172, 197, 922 A.2d 1210 (2007) (“In
determining whether any deficiencies in trial or appellate counsel's representation have
undermined a defendant's constitutional right to counsel, we have generally relied on the
standards enunciated in Strickland[.]”); State v. DiFrisco, 174 N.J. 195, 219, 804 A.2d
507 (2002) (stating that “[t]his Court adopted the Strickland formulation in [ Fritz]”);
State v. Bey, 161 N.J. 233, 251, 736 A.2d 469 (1999) (stating that “[t]he test for
measuring the effectiveness of counsel ... is set forth in the opinions of the Supreme
Court of the United States in Strickland ... and of this Court in [ Fritz ]”); State v. Chew,
150 N.J. 30, 76, 695 A.2d 1301 (1997) (stating that “[i]n Fritz, we adopted the two-part
test set forth in Strickland ”).

When, as here, we are confronted with an issue presently pending before the highest court
of this land and where our jurisprudence draws its origins from and parallels that of the
Supreme Court of the United States, judicial restraint of thought and prudence in action
dictate that we stay our hand and await until that Court speaks. Then-once we are better
informed-and only then should we act.

V.
There is something terribly amiss in upending an otherwise valid conviction concerning
events that occurred over twelve years ago, resulting in a conviction and sentence
imposed more than eleven years ago, later resulting in a deportation that occurred over
five years ago, all in favor of one whose contempt for the legal processes he invokes is
self-evident in his cavalier familiarity with the truth, his ready admission of perjury, and
his failed attempts to reenter the country illegally, resulting in yet another detention.
Furthermore, in the circumstances presented, there simply is no credible evidence
supporting defendant's claims. Thus, the PCR court's judgment was flawed and should
not be sustained. Similarly, the majority's acceptance of that flawed judgment leads to an
equally wrong result. Because the facts and the applicable law, as the Appellate Division
aptly found, more than amply justify denying defendant relief, I dissent.FN12

For reversal and remandment-Chief Justice RABNER and Justices LONG, LaVECCHIA,
ALBIN, WALLACE and HOENS-6.
For affirmance-Justice RIVERA-SOTO-1.

FN1. N.J.S.A. §§ 30:4-27.24 to -27.38.

FN2. We note that the Attorney General of New Jersey submitted a letter brief bringing
to this Court's attention a related case presently before the Supreme Court of the United
States, Kentucky v. Padilla, 253 S.W.3d 482 (Ky.2008), cert. granted, --- U.S. 1317, 129
S.Ct. 1317, 173 L.Ed.2d 582 (Feb. 23, 2009). In part, the issue before the Supreme Court
involves the distinction between collateral consequences and penal consequences. Our
opinion does not rely on that distinction, so we need not await the outcome in Padilla.

FN3. The trial court only listed complaint W-1997-6740-0408 as reinstated. However,
because defendant was also initially charged under complaint W-1997-6739-0408, which
was dismissed at sentencing pursuant to the plea agreement, both complaints should be
reinstated.

FN4. The relevant portion of the criminal sexual contact statute provides that “[a]n actor
is guilty of criminal sexual contact if he commits an act of sexual contact with the victim
under any of the circumstances set forth in section 2C:14-2c. (1) through (4) [,]” N.J.S.A.
2C:14-3(b). The accusation contains handwritten interlineations to the effect that
defendant also was charged with violating N.J.S.A. 2C:14-2(c)(1), a statute that prohibits
sexual assaults. That statute provides that “[a]n actor is guilty of sexual assault if he
commits an act of sexual penetration with another person [and] uses physical force or
coercion, but the victim does not sustain severe physical injury[.]” Ibid. Further, the term
“sexual penetration” is statutorily defined as “vaginal intercourse, cunnilingus, fellatio or
anal intercourse between persons or insertion of the hand, finger or object into the anus or
vagina either by the actor or upon the actor's instruction. The depth of insertion shall not
be relevant as to the question of commission of the crime[.]” N.J.S.A. 2C:14-1(c).
Defendant's judgment of conviction also shows that defendant pled guilty to fourth-
degree criminal sexual contact, in violation of N.J.S.A. “2C:14-3(b)/14-2c(1)[.]” Yet,
sexual assault in violation of N.J.S.A. 2C:14-2(c)(1) is a crime of the second degree, and
not a fourth-degree crime, and the plea colloquy supports the criminal sexual contact
charge, and not the more serious sexual assault charge. The record does not explain, and
defendant does not complain about, this discrepancy.
FN5. Defendant originally retained Aaron M. Smith, Esq. as his counsel. Mr. Smith never
appeared in court on defendant's behalf and later was disbarred by consent. In re Smith,
170 N.J. 626, 790 A.2d 900 (2002). Defendant was represented at the plea hearing by
Troy A. Archie, Esq.-Mr. Smith's then law partner-and at the sentencing hearing by Juan
J. Gonzalez, Esq., who was variously identified either as someone who rented space in
the same suite of offices as Mr. Smith or as Mr. Archie's associate (the Smith & Archie
law partnership having been disbanded by then).
FN6. In fact, defendant signed each page of the plea form, including the spots which
called only for his initials.
FN7. A hand-written insert on the plea form provides that defendant “waives [the] right
to appeal[.]”
FN8. Immediately preceding argument in this appeal, defendant's present counsel advised
that defendant had been deported in 2004-apparently some time after he testified at the
PCR hearing-and that, as a result of defendant's most recent attempt to re-enter the
country illegally, “he is now in custody, recently detained by federal authorities at a
border entry point.”
FN9. The transcript of the August 1, 2005 argument was inexplicably lost. That day's
proceedings were ordered reconstructed, as directed by a March 30, 2007 order from the
Appellate Division, and a reconstruction hearing was held on May 25, 2007. The parties
consented to the record reconstruction proposed by the PCR court in a letter dated May
11, 2007.
FN10. As the majority correctly notes, ante at ----, --- A.2d at ---- n. 3, the PCR court
mistakenly reinstated only the warrant that charged defendant with three counts of fourth-
degree criminal sexual contact, in violation of N.J.S.A. 2C:14-3(b), which then gave rise
to the single-count accusation to which defendant pled. Defendant also had been charged,
in a separate warrant, with one count of second-degree attempted sexual assault, in
violation of N.J.S.A. 2C:5-1 and 2C:14-2(c), and fourth-degree criminal sexual contact,
in violation of N.J.S.A. 2C:14-3(b). The charges in the second warrant were dismissed as
part of defendant's plea agreement. Thus, even if defendant is permitted to withdraw his
plea, the plea agreement on which it is based is nullified in full and all charges-including
the dismissed charges-must be reinstated. See State v. Williams, 39 N.J. 471, 480-81, 189
A.2d 193, cert. denied, 374 U.S. 855, 83 S.Ct. 1924, 10 L.Ed.2d 1075 (1963) (holding
that “[f]air dealing to society requires that once [a defendant] has been permitted to
withdraw his plea, he should be placed in the same position with respect to the [dismissed
charges] as he was before the plea was entered”); State v. Nichols, 71 N.J. 358, 361, 365
A.2d 467 (1976); State v. Rhein, 117 N.J.Super. 112, 118, 283 A.2d 759 (App.Div.1971).
FN11. Although I am unwilling to enter the briar patch that is federal immigration law,
suffice it to note that, unlike the majority's categorical conclusion that counsel's advice in
respect of the immigration consequences of defendant's plea was deficient, whether a
state sexual offense constitutes an “aggravated felony” requiring deportation as a matter
of course is, to say the least, an open question. See Singh v. Ashcroft, 383 F.3d 144 (3d
Cir.2004) (applying “formal categorical approach” of Taylor v. United States, 495 U.S.
575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) in determining whether state law crime
satisfies federal immigration definition of “aggravated felony”). See also Nijhawan v.
Holder, 557 U.S. 2294, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (discussing categorization
of crimes under “aggravated felony” statute).
FN12. The majority also adopts additions to question no. 17 on the plea form. Those
additions are, to me, unnecessary. Simply alerting a defendant who is contemplating a
guilty plea that there may be immigration consequences to a conviction-something that,
ironically, is not done at all when a defendant chooses to go to trial and is convicted-
suffices to place a defendant on notice. Piling on more and more to an already burdened
form is a poor substitute for increased understanding.
N.J.,2009.
State v. Nuñez-Valdẽz
--- A.2d ----, 200 N.J. 129, 2009 WL 2208305 (N.J.)

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