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Friday, January 01, 2016

PCR permits hearing on remand a0705-14 State v. ASIF TALLO

PCR permits hearing on remand a0705-14
State v. 
November 18, 2015 
Argued October 27, 2015 – Decided 
DOCKET NO. A-0705-14T2 
Before Judges Fisher and Rothstadt. 
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-05-0296. 
Michael Noriega, argued the cause for appellant (Bramnick, Rodriguez, Grabas & Woodruff, L.L.C., attorneys; Mr. Noriega of counsel and on the brief). 
Rory A. Eaton, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. Eaton, of counsel and on the brief). 
Defendant Asif Tallo a/k/a Joilynn Williams, appeals from the Law Division's denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. In 2004, after being previously indicted for allegedly committing an act of A-0705-14T2 2 

second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3)(b), defendant pled guilty to the amended charge of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). In his PCR petition, defendant argued that his attorney failed to properly advise him of the deportation consequences of his pleading guilty. The Law Division rejected that argument finding there was "no evidence that counsel affirmatively misinformed" defendant and, for that reason, an evidentiary hearing was not warranted. 
On appeal, defendant argues: 
We have considered defendant's arguments in light of our review of the record and applicable legal principles. We reverse and remand for an evidentiary hearing. 
The facts underlying defendant's offense are not material to our discussion. Suffice it to say, defendant testified at his plea hearing that while employed as a supervisor at a clinic A-0705-14T2 3 

that provided counseling to young adults, he committed an act of sexual contact upon one of the clients who was under age eighteen, but at least sixteen years old. 
On the day of his scheduled trial, defendant was offered a plea agreement that substantially reduced his exposure to the original second-degree offense and recommended "probation with community service." Defendant accepted the plea offer and, prior to eliciting the factual basis for his plea, the court questioned defendant to insure he was pleading guilty voluntarily and knowingly. Although the judge also confirmed that defendant answered all of the questions on the plea form with his attorney, understood the questions, answered them truthfully and did so voluntarily, including all of the attendant questions regarding the consequences of pleading to a sex offense, she did not inquire as to whether defendant was a United States citizen and if he specifically understood the deportation consequences addressed by Question 17 on the plea form. That question asked "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your guilty plea?" Defendant responded to that question on the form by circling "N/A," even though he was not a citizen. A-0705-14T2 4 

The court accepted defendant's guilty plea and a different judge later sentenced him in accordance with the plea agreement. The court entered a judgment of conviction on June 11, 2004, based on his plea. 
In 2013, the United States Immigration Customs Enforcement (ICE) arrested defendant and sought his deportation based upon his conviction in this case. In October 2014, the United States Immigration court ordered defendant to be deported to Jamaica. That order is currently on appeal and defendant remains in ICE's custody. 
In his subsequent PCR petition, defendant filed a certification in which he confirmed that he was a Jamaican national living in the United States as a lawful permanent resident.1 He further stated that his plea counsel had "known [his] family for years and was aware of [his] immigration status," and based on his attorney knowing defendant's status, he "accepted [counsel's] representation as signifying that it would be safe for [defendant] to accept [the plea] as a lawful permanent resident." Defendant also confirmed that at the time of his plea he "did not understand that [he] would face a certain deportation based upon [his] status in the country." If 
1 Defendant was born in Jamaica in 1979 and came to the United States in 1991. A-0705-14T2 5 

he had known, defendant "would not enter the plea that was offered" because his "entire family is in this country and . . . [he has] no family in Jamaica." According to defendant, his attorney did not raise the immigration issues "as a concern, given that [they] both believed that as a resident, there would be no penalties for a criminal offense." 
Defendant's plea counsel also filed a certification relative to the PCR petition. In that certification, counsel stated "at the time of defendant's plea, [counsel] was aware of [defendant's] immigration in the country based upon familiarity with [defendant's] family's history of their immigration to the United States." Counsel did not, "[h]owever . . . recall discussing [defendant's] immigration consequences regarding the ultimate sentence on this particular charge." 
As noted, in a comprehensive written decision, the PCR judge – who was not the plea or sentencing judge - was not persuaded that an evidentiary hearing was necessary because he believed defendant failed to establish a prima facie claim of ineffective assistance of counsel. The judge entered an order denying the petition and this appeal followed. 
In order for a defendant to obtain PCR based upon ineffective assistance of counsel, he or she is obliged to show both the particular manner in which counsel's performance was A-0705-14T2 6 

deficient and that the deficiency prejudiced his or her right to a fair trial or the outcome of the plea process. See Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 
203, 209-10 (1985); Strickland v. Washington, 466 U.S. 668, 687, 
104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987); State v. Chung, 210 N.J. Super. 427, 434-35 (App. Div. 1986). 
In cases brought by a defendant who has entered a guilty plea, the first prong of the Strickland/Fritz test is met where a defendant shows counsel's representation fell short of the prevailing standards expected of criminal defense attorneys. Padilla v. Kentucky, 559 U.S. 356, 367, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010). The second prong requires a defendant to establish a reasonable probability that he would not have pled guilty, but for counsel's errors. State v. Gaitan, 209 N.J. 339, 351 (2012). 
When defendant pled guilty in 2004, "a defendant's guilty plea [wa]s not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Id. at 361.2 Because immigration ramifications 
2 In 2010, the United States Supreme Court ended all debate on the deportation question. In Padilla, supra, the Supreme Court held attorneys are affirmatively obligated to inform their clients about the deportation risks of entering a guilty plea. 
(continued) A-0705-14T2 7 

559 U.S. at 356, 130 S. Ct. at 1486-87, 176 L. Ed. 2d at 299. The high court made it clear the failure to advise a client regarding the deportation consequences of a conviction represents a deficiency of constitutional magnitude. Ibid. Because Padilla, supra, presented a new rule of law, its holding only applied prospectively. Gaitan, supra, 209 N.J. at 371-72. 
3 In response to Nuñez-Valdéz, Question 17 was amended in 2009, in an "attempt to raise a defendant's consciousness of the risk of deportation and provide an opportunity for a defendant to 
were considered collateral consequences not penal consequences of a plea, there was no affirmative requirement to warn a defendant who was pleading guilty of a negative effect on his or her immigration status. 
However, the Court implemented Question 17 as a safeguard "designed to encourage discussion between counsel and client" on the issue of deportation. State v. Garcia, 320 N.J. Super. 332, 337 (App. Div. 1999). The question is designed to ensure notice of deportation as a consequence of a guilty plea. Gaitan, supra, 209 N.J. at 362. In the course of such discussions, "when counsel provides false or affirmatively misleading advice about the deportation consequences of a guilty plea, and the defendant demonstrates he would not have pled guilty if he had been provided with accurate information," PCR is warranted. Gaitan, supra, 269 N.J. at 351 (citing State v. Nuñez-Valdéz, 200 N.J. 129, 131, 139 (2009)).3 (continued) 
(continued) A-0705-14T2 8 

seek counsel specialized in the finer points of immigration law." Gaitan, supra, 209 N.J. at 362-63. 
We examine defendant's arguments in light of these authorities. Defendant entered his guilty plea in 2004 before Padilla was decided. Consequently, he may not avail himself of its holding to request PCR, but rather he remains bound by "'precedent existing at the time the defendant's conviction became final.'" Id. at 365 (quoting Teague v. Lane, 489 U.S. 
288, 301, 109 S. Ct. 1060, 1070, 103 L. Ed. 2d 334, 349 (1989)). 
Applying the controlling Nuñez-Valdéz standard, we agree with the PCR judge that defendant's assertion that he was not advised of the immigration consequences, standing alone, would not warrant an evidentiary hearing. However, in this case we conclude that defendant responding to Question 17 as not applicable, when his attorney admittedly knew defendant was not a citizen, requires at least an inquiry into how and why that response was made. Under the undisputed facts, the reason for the answer could not have anything to do with defendant's known immigration status. Compare Garcia, supra, 320 N.J. Super. at 338. Therefore, it must have been related to other factors, such as whether the immigration authorities would treat the fourth-degree crime as a deportable offense, which could have been based on counsel's belief that there would be no (continued) A-0705-14T2 9 

immigration "penalties" for pleading to the offense, as certified to by defendant, and not refuted by plea counsel. If counsel shared that view with defendant, by either telling him it was not a deportable offense or, with that belief, telling defendant he should respond "N/A" to the question, defendant's claim would demonstrate a reasonable likelihood he would succeed in his showing that counsel was negligent in providing legal advice. Nuñez-Valdéz, supra, 200 N.J. at 142-43. 
We also conclude that defendant provided sufficient information to warrant further inquiry into whether he would have accepted the plea, despite knowing he would be deported. As defendant certified, he came to this country at age twelve. His entire family is here and he has no ties to Jamaica. Also, defendant has spent a considerable period detained in custody by ICE despite his understanding at the time of his plea that he would not be incarcerated as a result of pleading guilty. See Garcia, supra, 320 N.J. Super. at 341. Although we recognize that the plea on the day of trial represented a substantial decrease in exposure – probation versus up to ten years in prison – we are not convinced, without testimony about defendant's chances of being convicted of the original second-degree charge, that he would have accepted the plea offer if he knew he would be jailed and deported. A-0705-14T2 10 

In order to address defendant's PCR request, an evidentiary hearing must be held to "aid the court's analysis of whether the defendant is entitled to post-conviction relief[.]" State v. Marshall, 148 N.J. 89, 158 (holding an evidentiary hearing should be granted on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel to support his petition), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). See also State v. Preciose, 129 N.J. 451, 462 (1992); Garcia, supra, 320 N.J. Super. at 340 (requiring an evidentiary hearing where "the PCR judge found on the basis of the papers that [the defendant] must have lied to his attorney and that, therefore, no misinformation was provided [to the defendant]. But, the form on its face supported [the defendant's] claim--that his lawyer told him that even though he was an alien, he could not be deported and that, therefore, Question 17 was not applicable"). 
On remand, a hearing will allow the court to analyze whether defendant was affirmatively misinformed about his immigration status and whether he suffered sufficient prejudice to warrant the withdrawal of his plea. See Nuñez-Valdéz, supra, 
200 N.J. at 142 (interpreting Strickland's prejudice prong as "'but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial'" (quoting Hill A-0705-14T2 11 

v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985) (alteration in original))). We conclude defendant had established a prima facie case for relief, and the PCR judge mistakenly exercised his discretion in failing to conduct an evidentiary hearing before dismissing defendant's PCR petition. 
Accordingly, we reverse the judgment of the PCR court and remand for an evidentiary hearing on the merits of defendant's ineffective assistance of counsel claim. 

Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.