Kenneth Vercammen & Associates, P.C.
2053 Woodbridge Avenue - Edison, NJ 08817
(732) 572-0500
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Thursday, February 10, 2011



A-0197-09T4 02-07-11

Defendant filed a petition for post-conviction relief,

arguing his attorney failed to discuss with him the deportation

consequences of his guilty plea. The trial judge denied the

petition, concluding without the benefit of an evidentiary

hearing that defendant's responses to the plea form as well as

his testimony at the plea hearing demonstrated he understood the

deportation consequences. In reversing that determination, the

court also considered the impact of Padilla v. Kentucky, 559

U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and State v.

Nuñez-Valdéz, 200 N.J. 129 (2009), both of which were decided

after defendant pled guilty and after his PCR petition was


The court recognized that certain aspects of Padilla --

namely, its holding that counsel's failure to give any

deportation advice is no different than the rendering of bad

deportation advice, and its holding that the direct/collateral

methodology regarding deportation advice had never applied to

Sixth Amendment claims of ineffectiveness -- did not create new

rules insofar as the Sixth Amendment is concerned. Because

defendant was entitled to the benefit of that federal rule, the

argument that Nuñez-Valdéz's rejection of the direct/collateral

methodology as a matter of New Jersey constitutional law

constituted a new rule was irrelevant in determining whether

defendant received the effective assistance of counsel when he

pled guilty.

The court also concluded that Nuñez-Valdéz should at least

be given pipeline retroactivity, and that defendants with

appeals pending from the denial of post-conviction relief at the

time Nuñez-Valdéz was decided are entitled to the benefit of its

holding. As a result, defendant was entitled to a hearing on

the claims set forth in his PCR petition, and the court remanded

for that purpose.