State of New Jersey v. Juan C. Hernandez-Peralta

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3292-22

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

JUAN C. HERNANDEZ-

PERALTA,

Defendant-Respondent.

________________________

Argued January 17, 2024 – Decided March 8, 2024

Before Judges Haas and Natali.

On appeal from an interlocutory order of the Superior

Court of New Jersey, Law Division, Ocean County,

Indictment Nos. 19-06-0946 and 19-09-1370.

Shiraz I. Deen, Assistant Prosecutor, argued the cause

for appellant (Bradley D. Billhimer, Ocean County

Prosecutor, attorney; Samuel J. Marzarella, Chief

Appellate Attorney, of counsel; Shiraz I. Deen on the

briefs).

Stefan Van Jura, Assistant Deputy Public Defender,

argued the cause for respondent (Joseph E. Krakora,

Public Defender, attorney; Stefan Van Jura, of counsel

and on the brief).

PER CURIAM

The State challenges a Law Division order granting defendant Juan C.

Hernandez-Peralta's petition for post-conviction relief (PCR) after an

evidentiary hearing, and vacating defendant's convictions and sentences. The

court determined defendant's sentencing counsel was constitutionally

ineffective under Strickland v. Washington, 466 U.S. 668, 687 (1984) 1 for

failing to advise defendant of the adverse immigration consequences of his

guilty plea when she was presented with discrepancies in the pre-sentence report

(PSR) indicating defendant may not be a United States citizen. Because we

conclude the court did not properly address Strickland's prejudice prong with

respect to any deficiency in sentencing counsel's representation, we vacate the

court's order and remand with directions for the court to consider that prong by

determining whether defendant would have been entitled to withdraw his guilty

plea under the factors set forth in State v. Slater, 198 N.J. 145, 150 (2009).

1

To establish ineffective assistance of counsel, a convicted defendant must

satisfy the two-part test enunciated in Strickland, 466 U.S. at 687, by

demonstrating that: 1) counsel's performance was deficient, and 2) the deficient

performance actually prejudiced the accused's defense. The Strickland test has

been adopted for application under our State constitution. See State v. Fritz,

105 N.J. 42, 58 (1987).

A-3292-22

2

I.

We begin by reviewing the pertinent facts in the record. The specific

details of the crimes for which defendant was charged are not particularly

relevant. It is sufficient to say the charges against defendant arise from two

Ocean County burglaries in early 2019. On June 19, 2019, he was indicted by a

grand jury on charges of third-degree burglary, N.J.S.A. 2C:18-2(a)(1), and

third-degree theft, N.J.S.A. 2C:20-3(a) (the first indictment). Subsequently,

defendant was indicted on September 4, 2019, on two counts of third-degree

burglary, N.J.S.A. 2C:18-2(a)(1); two counts of fourth-degree criminal

mischief, N.J.S.A. 2C:17-3(a)(1); second-degree robbery, N.J.S.A. 2C:15-1;

third-degree theft, N.J.S.A. 2C:20-3(a); third-degree aggravated assault on a law

enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a); third-degree resisting arrest,

N.J.S.A. 2C:29-2(a)(3); and fourth-degree resisting arrest, N.J.S.A. 2C:29-

2(a)(2) (the second indictment).

The parties reached a plea agreement in which defendant agreed to plead

guilty to third-degree burglary with respect to the first indictment, and second-

degree robbery and two counts of third-degree burglary with respect to the

second indictment. In exchange, the State agreed to recommend a sentence of

A-3292-22

3

five years of Drug Court 2 probation, with an alternative sentence of five years

of incarceration on each indictment, to run concurrently, with the sentence on

the second indictment subject to the No Early Release Act (NERA).3 Defendant

pled guilty, consistent with the agreement, on November 22, 2019.

Defendant completed a standard plea form in which question seventeen

asked if he was a citizen of the United States. The question also includes several

subsections to be completed if the defendant is not a United States citizen,

including inquiries whether defendant understands his guilty plea could result

in removal or inability to re-enter the United States. Defendant's plea counsel

circled "yes" on his behalf in response to question seventeen, indicating

defendant was a citizen, and crossed out the subsections.

At the PCR hearing, plea counsel testified he reviewed the plea form,

including question seventeen, with defendant. Plea counsel recalled defendant

telling him he was a United States citizen who was born in New York.

Nevertheless, plea counsel explained it was his "pattern and practice" with all

2

Drug Court is now known as Recovery Court. We refer to it as Drug Court as

that was the term in use at the time defendant was sentenced.

3

N.J.S.A. 2C:43-7.2 requires a mandatory minimum parole ineligibility period

of 85% of the sentence for certain enumerated offenses, including robbery,

N.J.S.A. 2C:15-1.

A-3292-22

4

clients to review the additional subsections of question seventeen, and if not

applicable, cross out each subsection on the form as he went. He also testified

he "didn't feel there was any duty to affirmatively try to verify the accuracy" of

defendant's unambiguous statements concerning his citizenship and place of

birth.

At the plea hearing, the court also inquired directly of defendant whether

he was a United States citizen and defendant confirmed that he was. The court

then asked defendant where he was born, and he responded, "I was born in New

York."

A PSR was completed prior to defendant's sentencing hearing, which

stated defendant was born not in New York, but in Mexico. The PSR also left

blank the questions inquiring about defendant's social security number, driver's

license, telephone number, alien status, citizenship, and nationality. The PSR

also stated defendant's mother did not live in the United States, and defendant

had no contact with his father.

On December 10, 2019, defendant appeared before the court for

sentencing, represented by a different attorney (sentencing counsel). Sentencing

counsel testified at the PCR hearing she reviewed the PSR with defendant for

about ten minutes prior to the sentencing hearing. She stated she asked

A-3292-22

5

defendant if he was born in Mexico, and he confirmed he was. She also stated

she asked defendant if he was a United States citizen and he again confirmed

that he was. She added when she asked defendant for his social security number,

he said he did not recall it.

Sentencing counsel testified it was not unusual for clients to be unaware

of their social security numbers, or for the PSR to be incomplete. Additionally,

she stated she had often represented clients who were United States citizens but

who were born in other countries. Sentencing counsel explained she was not

aware defendant had stated he was born in New York at the plea hearing , and if

she had known, "that would have rung bells for [her] because that would've been

a change, a difference." Absent that information, she stated she undertook no

further investigation of defendant's citizenship.

At the sentencing hearing, sentencing counsel advised the court that she

and defendant "received and reviewed" the PSR and it was "accurate for the

purposes of sentencing." The court sentenced defendant consistent with the plea

agreement to five years of Drug Court probation, with an alternative five-year

custodial term on each indictment, to run concurrently and subject to NERA on

the second indictment only.

A-3292-22

6

Defendant did not comply with the conditions of his probation and

ultimately pled guilty to probation violations in February and August 2020. At

the plea hearings in both February and August 2020, the court again inquired of

defendant whether he was a United States citizen. Defendant confirmed he was.

The court also asked defendant where he was born, to which he responded he

was born in Mexico. In August 2020, the court terminated defendant from Drug

Court and imposed the five-year custodial term originally contemplated.

Although he did not file a direct appeal, defendant filed the instant timely

pro se petition for PCR in which he asserted he was "not properly informed of

the immigration consequences of [his] plea agreement." After appointing PCR

counsel, the court conducted an evidentiary hearing over two days at which

defendant, plea counsel, and sentencing counsel testified.

Defendant testified he was born in Mexico and came to the United States

when he was "a year and a half" old. He explained he "lived most of [his] life

in New York" and moved to New Jersey in 2018 or 2019. Defendant stated he

has a "green card" 4 and social security number and "thought that [he] was a

4

According to the United States Citizenship and Immigration Services

(USCIS), a green card, or permanent resident card, proves that its holder is

authorized to live and work permanently in the United States. USCIS, Green

Card, https://www.uscis.gov/green-card (last visited Feb. 23, 2024).

A-3292-22

7

U[nited] S[tates] citizen already" because "that's what [he] heard" from his

family. He found out he was not a citizen "when [he] received the papers saying

that [he was] go[ing to] be deported" in 2022.

Defendant further testified he discussed his case with plea counsel twice

before entering the plea. He stated during those discussions, he informed plea

counsel he "didn't wan[t to] go to prison" and would like to apply for Drug Court.

Defendant noted he did not discuss his nationality, birthplace, or citizenship

with plea counsel, but admitted he directed counsel to circle yes on the plea form

to indicate he was a United States citizen.

Defendant also testified he informed the investigator preparing the PSR

that he was born in Mexico and had his "green card," but explained that he did

not understand his immigration status in 2019 when he entered his plea. He

denied having "any conversations with [sentencing counsel] about [his]

immigration status" or about his birthplace as shown in the PSR. Defendant

confirmed he did not inform either plea counsel or sentencing counsel that he

"was a green card holder."

Additionally, when asked why he stated he was born in New York when

he knew he was born in Mexico, defendant stated he had "no idea ," noting he

"was raised in New York [his] whole life," and "kind of forgot and just decided

A-3292-22

8

to say that." Further, when asked to explain the discrepancy between his

statements to the court at the plea hearing and to the PSR investigator, defendant

again testified he had "no idea" what happened to make him change his answer,

and he was "paranoid around that time" and "wasn't thinking clearly." He also

confirmed he was aware at the time he told the court he was born in New York

that statement was not true.

Following defendant's testimony, the court advised him that the

indictments would not be dismissed if he succeeded on PCR but rather defendant

would "just go back to square one, go back to being a defendant who's charged."

Further, the court noted defendant could "end up getting more time than [he]

previously w[as] sentenced to and still get deported." Defendant confirmed he

understood and wished to proceed.

Plea counsel testified, as noted, regarding the circumstances surrounding

the entry of defendant's plea. In response to the court's question how he would

proceed if he discovered at sentencing a defendant "had made an affirmatively

false statement [that] was significant as to his immigration consequences," plea

counsel stated he first would bring the matter to the Public Defender's Office's

immigration specialist for advice specific to the case. Next, he would likely file

A-3292-22

9

a motion to withdraw defendant's guilty plea, and if granted, he would determine

how to proceed with defendant and immigration counsel.

In addition to the previously mentioned testimony regarding the

sentencing hearing, sentencing counsel testified in her twenty-five years in

practice, she "had to stop and say 'let me just take some time out here and check

on the status of this person'" at sentencing "three or four" times. She explained

it was "not a normal practice" to "rehash[] and re-go[] over all of the

immigration" questions and issues at sentencing because typically those matters

were addressed during negotiations and while reviewing the plea form.

The court granted defendant's PCR petition in a written order dated May

23, 2023, accompanied by an oral ruling on the same date. It found plea counsel

testified credibly that he "meticulously went through the plea agreement with

defendant," including question seventeen and its subsections involving

citizenship, despite defendant's representation that he was a citizen. The court

also determined sentencing counsel testified credibly that she reviewed the PSR

with defendant, including that during that review, defendant "continued to claim

to be a U[nited] S[tates] citizen."

Relying upon Padilla v. Kentucky, 559 U.S. 356, 374 (2010) and State v.

Gaitan, 209 N.J. 339, 380 (2012), the court noted "[a] defendant can show

A-3292-22

10

ineffective assistance of counsel by proving that his or her guilty plea resulted

from inadequate information from counsel concerning deportation consequences

of a guilty plea." Specifically, it explained "where the terms of the relevant

immigration statute are succinct, clear, and explicit in defining a removal

consequence, then the attorney is obligated to be equally clear" under Gaitan,

209 N.J. at 380, and State v. Blake, 444 N.J. Super. 285, 295 (App. Div. 2016),

but where the law is "not succinct and straightforward," counsel need only

advise their client "that a pending criminal charge may carry a risk of adverse

immigration consequences" under Padilla, 559 U.S. at 369. Here, relying upon

Gaitan, 209 N.J. at 359, the court concluded the second-degree robbery charge

to which defendant pled guilty is an aggravated felony which would clearly

subject a non-citizen to mandatory removal.

Next, the court noted under State v. DiFrisco, 174 N.J. 195, 228 (2002),

"[c]ounsel cannot be faulted for failing to expend time or resources analyzing

events about which he or she was never alerted." Here, it found defendant failed

to establish that plea counsel "had any information that the defendant was not a

United States citizen," because defendant "affirmatively said he was a United

States citizen" and was born in the United States, both to plea counsel and the

court. The court concluded there were no facts calling those statements into

A-3292-22

11

question before plea counsel, nor was there anything "to indicate that [plea

counsel] was ever given any notice that he had to advise the defendant." Thus,

while the court noted it was "unclear" whether plea counsel's advisement on

question seventeen of the plea form was "described as mandatory deportability

or just the permissive language . . . that a defendant may be subject to

deportation," it concluded plea counsel could not have fully advised defendant

that he was subject to mandatory deportation "because he had zero information

defendant was not a U[nited] S[tates] citizen."

In contrast, the court found "the information available to [sentencing

counsel] established that there were signs which indicated defendant may be

subject to mandatory deportation" and required further investigation.

Specifically, it highlighted the PSR which stated defendant was born in Mexico

and "at best . . . shows that [defendant's] citizenship is in doubt." Under the

"totality of the circumstances," including that defendant could not remember his

social security number, the lack of driver's license or telephone number listed

on the PSR, that defendant's mother was not in the country and that he did not

have contact with his father, the court found "there's a series of deficient

information which should have raised red flags to the attorney to conduct an

investigation."

A-3292-22

12

The court further explained "there was sufficient information in

possession of [sentencing counsel] and in her knowledge . . . to trigger the duty

to advise the defendant of the mandatory deportability of the conviction under

so-called prevailing professional norms as those are discussed in . . . Gaitan and

Padilla." Further, it found "sentencing counsel had an obligation to place it on

the record that there w[ere] discrepancies with defendant's alleged citizenship,

that there was affirmative information in the [PSR] to indicate he was not a

U[nited] S[tates] citizen, and to then take whatever action was appropriate"

including inquiring of defendant of his citizenship status under oath or "ask [ing]

for a postponement of the sentencing to investigate with some other family

members or . . . agencies." It noted "the standard for a withdrawal of a guilty

plea is much more liberal pre-sentencing than it is post-sentencing," and the

citizenship issue could have been raised in such a motion.

The court rejected the State's claim of invited error, finding it "not

particularly appropriate" in this circumstance despite sharing "the State's

concern that a grant of relief in favor of the defendant would essentially [re]ward

him for being untruthful to his plea counsel . . . and to the plea judge." In doing

so it addressed several unpublished cases relied upon by the State and found

each factually distinguishable.

A-3292-22

13

Although concluding plea counsel could not have advised defendant he

was subject to mandatory deportation, the court determined sentencing counsel

could and should have so advised defendant. It therefore found defendant had

met his burden under Strickland and ordered defendant's convictions and

sentences with respect to both indictments vacated and the cases restored to the

trial calendar. This appeal followed.

The court thereafter submitted a written amplification pursuant to Rule

2:5-1(d), providing additional support for its ruling. It noted defendant was

obligated to establish "prior counsel's performance was deficient as measured

by an objective standard of reasonableness and that these deficiencies materially

contributed to the outcome in the matter" under Strickland, 466 U.S. at 687.

Specifically, the court explained under State v. Buonadonna, 122 N.J. 22, 41

(1991), "defendant must demonstrate that counsel's representation was truly

deficient, with such grievous errors that 'counsel was not functioning as the

"counsel" guaranteed to the defendant by the Sixth Amendment.'" Even after

making this showing, it continued, defendant must show "a reasonable

probability that but for counsel's unprofessional errors the result of a proceeding

would have been different."

A-3292-22

14

In the context of a guilty plea, the court wrote, relying upon Lafler v.

Cooper, 566 U.S. 156, 163 (2012), defendant "must demonstrate with

'reasonable probability' that the result would have been different had he received

proper advice from his attorney." Further, it noted under State v. Maldon, 422

N.J. Super. 475, 486 (App. Div. 2011), "defendant must also 'convince the court

that a decision to reject the plea bargain' and 'insist on going to trial' 'would have

been rational under the circumstances.'"

Additionally, the court explained a defendant can demonstrate ineffective

assistance of counsel "by proving that his [or her] guilty plea resulted from

'inaccurate information from counsel concerning the deportation consequences

of his [or her] plea'" under State v. Brewster, 429 N.J. Super. 387, 392 (App.

Div. 2013) (alterations in original). It specified, under State v. Barros, 425 N.J.

Super. 329, 331 (App. Div. 2012), "counsel's 'failure to advise a noncitizen client

that a guilty plea will lead to mandatory deportation deprives the client of the

effective assistance of counsel guaranteed by the Sixth Amendment.'" As the

offenses to which defendant pled guilty "likely qualified as aggravated felonies

making deportation virtually certain" under Gaitan, 200 N.J. at 359, the court

found the obligation to advise defendant of that consequence was triggered.

A-3292-22

15

Because this issue "turns on plea counsel's failure to investigate

defendant's status as a U[nited] S[tates] citizen," the court further explained

"counsel has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary" under State v.

Savage, 120 N.J. 594, 618 (1990). Additionally, it noted the extent of that

investigation "must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel's judgments"

under State v. Perry, 124 N.J. 128, 154 (1991).

The court reiterated its finding plea counsel was "credible and

compelling" and "had no information or indication to dispute defendant's claim

to have been born in New York and to be a U[nited] S[tates] citizen." It also

confirmed sentencing counsel was credible, but the inconsistency between

defendant's citizenship claim on the plea form and the PSR "should have put

sentencing counsel on notice as to defendant's citizenship which would require

further investigation." The court found "a competent defense attorney in the

shoes of sentencing counsel would have been expected, under prevailing

professional norms, to address the discrepancy between the plea form and the

PSR on the record with defendant in the presence of the sentencing judge" and

to advise defendant "if he was not a U[nited] S[tates] citizen, he faced

A-3292-22

16

deportation from the United States, would be barred from re-entering and would

not be able to become a naturalized citizen."

The court again rejected the State's invited error claim, finding it "did not

bar relief in this instance." Specifically, it found although "defendant was

untruthful to [the court] and plea counsel regarding his place of birth and alleged

U[nited] S[tates] citizenship . . . defendant's lack of candor did not relieve

sentencing counsel of the obligation to investigate the discrepancies between his

claim to be a U[nited] S[tates] citizen and the contrary information presented in

the PSR."

The court also concluded defendant established he had been prejudiced by

the representation. Specifically, it accepted that defendant "was satisfied with

Drug Court probation but did not want to be deported" and found "[i]t would

have been illogical for him to accept Drug Court probation and expect to

complete same if he knew he was going to be deported." Together with

defendant's life-long connections to the New York-New Jersey area, the court

found "defendant has proven to a reasonable probability that he would have

rejected the State's plea offer and not pled guilty had he properly been advised

of the adverse immigration consequences."

A-3292-22

17

II.

Our review of a PCR claim after a court has held an evidentiary hearing

"is necessarily deferential to [the] court's factual findings based on its review of

live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). We review

the legal conclusions of a PCR court de novo. State v. Harris, 181 N.J. 391, 419

(2004). The de novo standard of review also applies to mixed questions of fact

and law. Id. at 420.

When petitioning for PCR, the defendant must establish, by a

preponderance of the credible evidence, that they are entitled to the requested

relief. Nash, 212 N.J. at 541; State v. Preciose, 129 N.J. 451, 459 (1992). As

noted, to establish a prima facie claim of ineffective assistance of counsel, the

defendant is obligated to show not only the particular manner in which counsel's

performance was deficient, but also that the deficiency prejudiced their right to

a fair trial. Strickland, 466 U.S. at 687; Fritz, 105 N.J. at 58. Under the first

prong of this test, the defendant must demonstrate that "counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment." Strickland, 466 U.S. at 687.

The United States Supreme Court held a defendant may meet the first

Strickland prong by showing that their attorney made misrepresentations, either

A-3292-22

18

affirmatively or by omission, regarding the potential immigration consequences

flowing from a guilty plea. Padilla, 559 U.S. at 369-71. When deportation is a

clear consequence of a guilty plea, the defendant's counsel has an affirmative

duty to address the subject and give correct advice. Id. at 374; see also State v.

Chau, 473 N.J. Super. 430, 444 (App. Div. 2022) (stressing in post-Padilla pleas,

plea counsel was obligated to advise the client "regarding the risk of

deportation"). When the deportation consequences of a plea are uncertain,

counsel need only advise their client that the plea may carry a risk of adverse

immigration consequences. Padilla, 559 U.S. at 369.

Under the second prong, the defendant must show "that counsel's errors

were so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable." Strickland, 466 U.S. at 687. That is, "there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would

have been different." Id. at 694. Further, because prejudice is not presumed,

Fritz, 105 N.J. at 52, the defendant must demonstrate "how specific errors of

counsel undermined the reliability" of the proceeding. United States v. Cronic,

466 U.S. 648, 659 n.26 (1984). Where the PCR involves a plea bargain, "a

defendant must prove 'that there is a reasonable probability that, but for counsel's

errors, [he or she] would not have pled guilty and would have insisted on going

A-3292-22

19

to trial.'" Gaitan, 209 N.J. at 351 (alteration in original) (quoting State v. Nunez-

Valdez, 200 N.J. 129, 139 (2009)).

There is a strong presumption that counsel "rendered adequate assistance

and made all significant decisions in the exercise of reasonable professional

judgment." Strickland, 466 U.S. at 690. As such, "[j]udicial scrutiny of

counsel's performance must be highly deferential," and "every effort [must] be

made to eliminate the distorting effects of hindsight." Id. at 689.

Additionally, "[c]ounsel has a duty to make reasonable investigations or

to make a reasonable decision that makes particular investigations unnecessary."

State v. Porter, 216 N.J. 343, 353 (2013) (quoting State v. Chew, 179 N.J. 186,

217 (2004)). "Counsel cannot be faulted for failing to expend time or resources

analyzing events about which they were never alerted." DiFrisco, 174 N.J. at

228. Similarly, "counsel cannot be deemed ineffective for failing to raise

arguments that are ultimately deemed without merit." State v. Roper, 362 N.J.

Super. 248, 252 (App. Div. 2003) (citing State v. Worlock, 117 N.J. 596, 625

(1990)).

With these principles in mind, we turn now to the parties' arguments. The

State contends the court erred in granting defendant's PCR petition because it

improperly construed the blank sections of defendant's PSR as requiring counsel

A-3292-22

20

to conduct an independent investigation of citizenship despite defendant's "clear

and unambiguous assertion" he was a United States citizen. According to the

State, this conclusion is unsupported by case law and misapplies Strickland.

The State further contends counsel's reasonable inference "that questions

about citizenship status have been fully explored during the plea process

provided there is no directly contradictory information in the record" does not

constitute an error so grievous "that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment," under Buonadonna, 122

N.J. at 41. Although "[d]elaying sentencing to investigate all blank boxes in the

PSR might have been an ideal practice," the State concludes the failure to do so

was not constitutionally ineffective. Additionally, it argues counsel's duties to

provide immigration advice arise at the time of the plea under Padilla and

Gaitan, not at sentencing.

Further, the State notes a PSR is based primarily on an interview with the

defendant, and the blank sections on it could have various explanations,

including "a lack of recollection or cooperation from the defendant, negligence

on the part of the [investigator], or simply uncertainty about the issue." The

State argues the PSR investigator's determination of citizenship should not be

given greater significance than defendant's own reported knowledge. It asserts

A-3292-22

21

sentencing counsel "performed the exact level of investigation that the

presentence investigator would have gone through in order to properly fill [the

citizenship] box: she asked [d]efendant if he was a citizen, and he responde d,

'yes.'"

In requesting we affirm, defendant argues he believed he was a United

States citizen at the time of his plea and sentencing, because he had a "green

card" and legitimate social security number, and had spent his whole life in the

United States. Defendant asserts he was not "plotting to deceive" but rather

"displaying the innocent bumbling of youth," exacerbated by his lack of

education and stunted "emotional and intellectual growth" due to "serious drug

use beginning at an early age," as shown in the PSR. Defendant also argues, as

the court noted, sentencing counsel had an obligation to inquire further upon

noticing defendant was born in Mexico, "at which point defendant presumably

would have said that he was a citizen because he had a green card and social

security number[, which c]ompetent counsel would have recognized . . . do not

confer citizenship."

First, we are satisfied the court's finding that defendant did not satisfy the

performance prong of Strickland with respect to plea counsel was amply

supported by the record. In addition to defendant's unambiguous statements to

A-3292-22

22

both plea counsel and the court that he was a United States citizen, born in New

York, there was nothing in the record which indicated to plea counsel that

defendant was not a United States citizen. As noted, counsel cannot be

ineffective for failing to analyze facts to which they were not alerted. See

DiFrisco, 174 N.J. at 228.

We agree with the court and defendant, however, that there were sufficient

facts in the PSR to put sentencing counsel on notice that defendant may not be

a United States citizen. We acknowledge that defendant stated to sentencing

counsel that he was a United States citizen, and that a person born in another

country may nevertheless be a citizen of the United States. The PSR stated

defendant was born in Mexico but did not confirm his citizenship or alien status.

Other facts in the PSR such as the lack of driver's license information and

defendant's mother's residence outside the United States, while not necessarily

proof defendant was not a citizen, provided further cause for suspicion as the

court correctly found.

Although we are mindful of our duty "to eliminate the distorting effects

of hindsight," Strickland, 466 U.S. at 689, we recognize that had sentencing

counsel inquired further of defendant as to how or when he became a citizen,

she likely would have discovered that he was, in fact, a green card holder rather

A-3292-22

23

than a citizen. At that point, sentencing counsel could have requested an

adjournment of the hearing and potentially sought to withdraw defendant's

guilty plea.

We are not persuaded by the State's argument that counsel's duty to advise

a defendant of the immigration consequences of their guilty plea arises only at

the time of the plea. Neither Padilla nor Gaitan specified its holding applied

only to plea counsel. Padilla, 559 U.S. at 374 ("we now hold that counsel must

inform her client whether his plea carries a risk of deportation"); Gaitan, 209

N.J. at 380 ("counsel's failure to point out to a noncitizen client that he or she is

pleading to a mandatorily removable offense will be viewed as deficient

performance of counsel"). Further, we noted in State v. L.G.-M., 462 N.J. Super.

357, 366 (App. Div. 2020), "[n]either Padilla nor Gaitan expressly limits its

holding to cases in which a defendant enters a guilty plea, and we decline to

narrowly construe their application only to those dispositions."

It is undisputed the charges to which defendant pled guilty subjected him

to mandatory deportation. See Gaitan, 209 N.J. at 359 (noting "removal of a

noncitizen convicted of an aggravated felony is mandatory" under 8 U.S.C. §

1227(a)(2)(A)(iii) and specifying "violent crimes" and "burglary offenses"

which "result[] in at least one year of imprisonment" are aggravated felonies for

A-3292-22

24

immigration purposes). Taken together with the information in the PSR

indicating a question as to defendant's citizenship, the record reflects sentencing

counsel failed to meet her affirmative duty to advise defendant that deportation

was a clear consequence of his guilty plea under Padilla, 559 U.S. at 374.

III.

Our agreement with the court's determination that sentencing counsel was

ineffective does not end the analysis as to whether the court properly granted

defendant's petition because, as noted, prejudice is not presumed. Fritz, 105 N.J.

at 52. On this point, the State argues defendant failed to establish prejudice,

noting the court did not consider, under State v. Slater, 198 N.J. at 157-58, that

"the evidence in this case was overwhelming and [d]efendant has not set forth

any colorable claim of innocence or defense to the charges." Additionally, the

State highlights defendant's testimony at the PCR hearing that the most

important goal of a plea agreement for him was to avoid incarceration, which it

claims the court again "failed to address." In light of these facts, the State

contends "it would not have been rational for [defendant] to go to trial and face

a very strong possibility of receiving a significant state's prison sentence."

Defendant responds he has shown "he insists on going to trial after receiving the

proper advice that a conviction for an aggravated felony will result in his

A-3292-22

25

removal from the country," as demonstrated by his choice to proceed with his

PCR petition despite the court advising him the original charges would be

reinstated and he could face "significant additional prison time" in addition to

being deported.

In our view, the court erred by conflating the potential prejudice caused

by a deficiency in counsel's performance at the plea stage and that potentially

caused by any error committed by sentencing counsel. In light of our conclusion

that plea counsel's performance was constitutionally sufficient, as opposed to

sentencing counsel's, defendant must demonstrate he was prejudiced specifically

by sentencing counsel's deficient performance. Stated differently, as defendant

had already pled guilty, he can establish sentencing counsel's failure to further

investigate his citizenship prejudiced him only if that investigation would have

led to a successful motion to withdraw his guilty plea. See Roper, 362 N.J.

Super. at 252 (holding "counsel cannot be deemed ineffective for failing to raise

arguments that are ultimately deemed without merit"). Although the facts

underlying a petition for PCR and motion to withdraw a guilty plea may overlap,

"a court must nonetheless view the applications separately, and must avoid

conflating the two." State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div.

2014).

A-3292-22

26

Determining whether defendant's application to withdraw his plea would

have been successful requires the court to consider the factors outlined in Slater,

198 N.J. at 157-58. The decision to grant or deny a motion to retract a guilty

plea is discretionary and is governed by four factors: "(1) whether the defendant

has asserted a colorable claim of innocence; (2) the nature and strength of

defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4)

whether withdrawal would result in unfair prejudice to the State or unfair

advantage to the accused." Ibid. Satisfaction of all these factors is not

mandatory and a "missing" factor "does not automatically disqualify or dictate

relief." Id. at 162. "[T]he burden rests on the defendant, in the first instance, to

present some plausible basis for his request, and his good faith in asse rting a

defense on the merits." Id. at 156 (quoting State v. Smullen, 118 N.J. 408, 416

(1990)).

Under Rule 3:9-3(e), a motion to withdraw a guilty plea made before or

at the time of sentencing will be granted "[i]f at the time of sentencing the court

determines that the interests of justice would not be served by effectuating the

agreement reached by the prosecutor and defense counsel." Ibid. (quoting R.

3:9-3(e)). Courts should "exercise their discretion liberally to allow plea

withdrawals" before sentencing, and "[i]n a close case, the 'scales should usually

A-3292-22

27

tip in favor of defendant.'" Ibid. (quoting State v. Taylor, 80 N.J. 353, 365

(1979)).

Here, we are convinced the record is insufficient for us to determine

whether a motion to withdraw defendant's guilty plea would have been

successful. On this point, the court did not address whether defendant could

assert "a colorable claim of innocence" or "whether withdrawal would result in

unfair prejudice to the State." Id. at 157-58. Under these circumstances, we

find the proper course is to remand for the court to consider in the first instance

whether defendant is entitled to withdraw his guilty plea under Slater. See State

v. Micelli, 215 N.J. 284, 293 (2013) (Rule 2:10-5 "permits appellate courts to

exercise original jurisdiction . . . 'only with great frugality.'" (quoting Tomaino

v. Burman, 364 N.J. Super. 224, 234-35 (App. Div. 2003))).

Finally, the State also reprises its argument relying upon the doctrine of

invited error. Specifically, it contends "[d]efendant did not have the right to

have the ramifications of his prior duplicity at the plea stage corrected by

sentencing counsel who rightfully assumed he was honest and forthcoming with

[plea] counsel." We are not persuaded.

"Under the invited error doctrine, 'trial errors that "were induced,

encouraged or acquiesced in or consented to by defense counsel ordinarily are

A-3292-22

28

not a basis for reversal on appeal."'" State v. Munafo, 222 N.J. 480, 487 (2015)

(quoting State v. A.R., 213 N.J. 542, 561 (2013)). As our Supreme Court has

explained, "a 'defendant cannot beseech and request the trial court to take a

certain course of action, and upon adoption by the court, take his chance on the

outcome of the trial, and if unfavorable, then condemn the very procedure he

sought and urged, claiming it to be error and prejudicial.'" State v. Jenkins, 178

N.J. 347, 358 (2004) (quoting State v. Pontery, 19 N.J. 457, 471 (1955)).

Having reviewed the court's comprehensive oral decision in which it

reviewed and distinguished the authority relied upon by the State as well as for

the reasons stated in its amplification, we see no reason to disturb the court's

factual findings nor the legal conclusions flowing therefrom with respect to the

invited error issue, and we are satisfied that, on these unique and idiosyncratic

facts, defendant's misrepresentations did not vitiate sentencing counsel's

independent duty to investigate the discrepancies between defendant's claim to

be a United States citizen and the contrary information in the PSR.

Vacated and remanded. We do not retain jurisdiction.

A-3292-22

29