State v. Nuñez-Valdéz

Justice WALLACE, JR.,

delivered the opinion of the Court.

As part of a plea agreement, defendant José Nuñez-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 Consequently, the court ordered that defendant’s plea be withdrawn and the matter proceed to trial.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.

Defendant recalled that in 1998 he was charged with sexual assault. With the help of his brother, Luis Nuñez-Valdéz, 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.

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.

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-seizing 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 ease 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 lie 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.

m.

A.

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,¹ 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.

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 ease 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-assistanee-of-eounsel 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 “Ltjo 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 eases’; 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.

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.² 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 ease, 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.

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.”

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

[blecause 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 ineffeetive-assistanee-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.³

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?

lyes] fnol

If no, answer question # 17b

17b. Do you understand that if you are not a United States citizen or national, you may he 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.

The judgment of the Appellate Division is reversed. The matter is remanded to the trial court for proceedings consistent with this opinion.

1 N.J.S.A. §§ 30:4-27.24 to-27.38.

2 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.--, 129 S.Ct. 1317, 173 L.Ed.2d 582 (Feb. 23, 2009). In pail, 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.

3 The trial court only listed complaint W 1997 6740 0408 as reinstated. However, because deiendant 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.