STATE OF NEW JERSEY v. PAK L. CHAU (11-01-0223 AND 12-09-2133, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1069-20
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PAK L. CHAU, a/k/a
XAVIER P. CHAU,
Defendant-Appellant.
_______________________
Argued November 29, 2021 – Decided September 7, 2022
Before Judges Messano,1 Accurso and Enright.
On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Indictment Nos. 11-
01-0223 and 12-09-2133.
Ronald P. Mondello argued the cause for appellant.
John J. Santoliquido, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Cary Shill, Acting Atlantic County
Prosecutor, attorney; John J. Santoliquido, of counsel
and on the brief).
1
Judge Messano did not participate in oral argument. He joins the opinion
with counsel's consent. R. 2:13-2(b).
The opinion of the court was delivered by
ACCURSO, J.A.D.
Defendant Pak L. Chau appeals from an order dismissing his petition for
post-conviction relief (PCR) as time-barred and denying his Slater2 motion
premised on alleged ineffective assistance in connection with two guilty pleas
he entered nearly ten years ago. We reverse and remand for an evidentiary
hearing.
Having reviewed the record, we are satisfied defendant established
excusable neglect for failing to file a timely PCR petition in accordance with
State v. DiFrisco, 187 N.J. 156, 166 (2006), as his Texas immigration counsel,
who has represented defendant since shortly after he was placed in U.S.
Department of Homeland Security, Immigration and Customs Enforcement
(ICE) detention in 2014, certified he failed to advise defendant until September
2019 of the availability of a PCR application in New Jersey. Defendant
obtained New Jersey counsel the same month, who filed this application on his
behalf.
We are also convinced there is a reasonable probability that if
defendant's factual assertions that he pleaded guilty to receiving stolen
property, not because he was guilty but because he got erroneous advice about
2
State v. Slater, 198 N.J. 145, 157 (2009).
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the immigration consequences of risking trial and a jail term, are found to be
true, "enforcement of the time bar would result in a fundamental injustice." R.
3:22-12(a)(1)(A). The court is also to reconsider defendant's Slater motion on
remand, as defendant's testimony in support of his ineffective assistance claim
may inform the court's assessment of defendant's colorable claim of innocence
and the strength of his reasons for wishing to withdraw his plea, the first two
factors in a Slater analysis. See State v. O'Donnell, 435 N.J. Super. 351, 370-
71 (App. Div. 2014).
Because the trial court rendered its decision without an evidentiary
hearing, our review of both its legal and factual determinations is de novo.
State v. Harris, 181 N.J. 391, 421 (2004); State v. Aburoumi, 464 N.J. Super.
326, 338-39 (App. Div. 2020). As directed by our Supreme Court, we "view
the facts in the light most favorable to the defendant." State v. Jones, 219 N.J.
298, 311 (2014).
Defendant came to this country as a lawful permanent resident in 2005
with his mother and sisters. He was fifteen years old. His father remained
behind in Hong Kong to manage the family's business. In August 2010, he
was charged with fourth-degree shoplifting from a ShopRite in Galloway
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Township.3 Two months later, he was again charged with shoplifting, this
time in the third degree, from a ShopRite in Galloway Township. He was
admitted into the pre-trial intervention (PTI) program in 2011.
A year later, defendant was charged with third-degree receiving stolen
property, specifically a 1993 Mazda Miata. Defendant was arrested after he
contacted police following a call from his mother that police wanted to speak
to him about the Miata. He told police he was selling a 1990 Miata and parts
on Craigs List. "[S]ome guy" who'd apparently seen defendant's listing
contacted him online to ask him if he were interested in buying a 1993 Miata
special edition. Defendant purchased the Miata for $3,000, consisting of $500
in cash and a supercharger valued at $2,500. "The guy" told defendant he
would mail him the title, or he could get one from the Division of Motor
Vehicles for $200. Defendant told police he put the tags from his 1990 Miata
on the car until he could get the new title. Police tracked him through his old
tags.
As defendant was leaving the stationhouse, he heard a man in the lobby
talking on the phone to dispatch about the stolen Miata and asked if he was the
owner. Defendant apologized about the incident and told the owner he'd
3
Defendant had already been convicted of the disorderly persons offense of
shoplifting in municipal court in Absecon in 2009.
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bought the car from a guy on Craig's List. He also offered to try to reimburse
the owner for the storage fees the police were charging him to store the car.
The only information he could offer about the seller was that he was "a
Spanish guy." The owner told police he'd fired a new employee of his
business the week before; an Hispanic man, who the owner claimed was a
recovering heroin addict. The Miata was stolen from the parking lot of the
owner's business.
Defendant, represented by the same public defender who had gotten him
into PTI, pleaded guilty to receiving stolen property in November 2012, even
though, as the judge taking his plea informed him, "this guilty plea to this new
charge will really almost certainly terminate your PTI unsuccessfully." 4 On
learning defendant was not a citizen, the judge also ensured defendant was
aware that if a federal immigration judge concluded the charge to which
defendant was pleading guilty "is what they call an aggravated felony," he
"would certainly be deported" and understood the judge could not tel l him
"with any certainty at all what the federal authorities will or will not do with
respect to your immigration status because of this guilty plea."
4
Defendant had two weeks earlier entered a not-guilty plea and his counsel
had asked for a status conference in two weeks, saying the defense had
"discovery and an offer from the State." Defendant pleaded guilty at the status
conference with a "[r]ecommended sentence by the State [of] probation with
no jail time."
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Defendant declined the judge's invitation to postpone his plea in order to
consult with immigration counsel and told the judge he understood the charge
and the rights he was waiving by entering a guilty plea. When the judge asked
if defendant intended to plead guilty after being provided all that information,
defendant responded, "Well, I don't have a choice, so." When the judge
advised defendant he did "have a choice," defendant replied he "[didn't] want
to risk going to jail, so." Defendant thereafter answered yes to the three
questions put to him by his lawyer — was he in Atlantic City on May 15,
2012; did he have property in his possession, which he knew or believed was
stolen; and was that property a 1993 Mazda Miata — and the judge accepted
his plea to third-degree receiving stolen property.
Two months later, in January 2013, the same public defender who had
represented defendant throughout the proceedings advised the court defendant
would not oppose the State's motion to terminate PTI and wished to plead
guilty to the third-degree shoplifting charge with the State's recommendation
of probation with no jail time concurrent to his anticipated sentence for
receiving stolen property. When the judge asked defendant in the course of the
plea colloquy if he understood his plea could have "immigration
consequences," the two engaged in the following exchange.
A. Yes. I talked to a lawyer.
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Q. Oh, you did?
A. Yeah, I talked to a lawyer already.
Q. To an immigration lawyer?
A. Well, they won't — as long as I stay out of jail and
then I'll be fine. That's what he told me.
Q. Who was the lawyer you spoke to?
A. Well, I talked to the guy in Atlantic City.
Q. Yeah.
A. Yeah.
Q. Well, do you understand that if a federal
immigration court concluded that these State charges
that you've pled guilty to are what they call aggravated
felonies, then you would be deported?
A. Yeah.
Q. And do you — do you understand that I can't tell
you — I'm not empowered to tell you with any
certainty at all what the federal authorities will or will
not do because of these guilty pleas?
A. Yes.
Q. Do you have any desire to postpone the entry of
this plea today so that you can consult further with an
attorney who specializes in —
A. No.
Q. — immigration law?
A. No, that's my decision now.
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Q. I'm sorry?
A. That's my decision right now.
Q. That's your position.
A. That's my decision.
Q. That's your decision right now?
A. Yeah.
Q. Okay. You don't feel that you need the time to
consult further with somebody in more detail?
A. No.
In his certification accompanying his verified petition, defendant avers
he didn't "have any money" when he "got into trouble" and thus couldn't afford
"a paid immigration consultation." He certified he called "all the numbers" he
could find for immigration attorneys, until he "found one who gave [him] a
free consultation over the phone," who told him he "would not be deported for
these relatively minor offenses without any jail." Defendant averred he would
never have pleaded guilty if he understood he was pleading to offenses that
would make him deportable. He would have instead asked his public defender
to try and gain his re-admittance to PTI or asked her "to try and obtain a non-
deportable plea bargain." Defendant averred he would have rather "taken [his]
chances at a trial knowing that [he] may have been sent to jail rather than plead
guilty to crimes that [made him] deportable."
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The judge accepted defendant's guilty plea to third-degree shoplifting
and proceeded to sentencing. Asked if he wanted to speak on his own behalf,
defendant declined, saying only that he "apologize[d] for what I did before,
and it won't happen again." Noting defendant was twenty-two years old with
one disorderly conviction, the judge found aggravating factor nine, the need to
deter, and mitigating factor ten, that defendant is amenable to probation.
Finding the aggravating and mitigating factors in equipoise, the judge
sentenced defendant to three years' probation on both third-degree convictions
to run concurrently. The judge advised defendant of his appeal rights and that
he had five years in which to file a petition for PCR "on either one or both of
these convictions." Observing that it appeared defendant had "got a lot of
things going for [him]," the judge said he was "not getting where these
offenses sprung up," but hoped defendant could maintain his resolve to stay
out of a courtroom and wished him the best.
Shortly after his sentencing, defendant got an offer from a friend for a
job in Dallas. Defendant accepted the job and moved there, transferring his
probation to Texas. His longtime girlfriend followed him six months later.
Defendant reports he was happy and working hard, meeting all the
requirements of his probation and feeling he'd gotten his life back on track.
His guilty pleas to the shoplifting and receiving stolen property charges,
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however, constituted convictions to two crimes of moral turpitude not arising
out of a single occurrence, rendering him deportable under section
237(a)(2)(A)(ii) of the Immigration and Nationality Act. See 8 U.S.C. §
1227(a)(2)(A)(ii). Defendant was taken into ICE custody in December 2014,
nearly two years after his plea to third-degree shoplifting.
Defendant hired an immigration attorney in Texas, Vinesh Patel, shortly
after being detained. In a certification submitted in support of defendant's
petition, Patel explained he was able to secure the government's agreement to
exercise prosecutorial discretion to terminate defendant's deportation
proceedings in November 2015, arguing defendant had been rehabilitated and
was eligible to "readjust status" via his marriage to his long-time girlfriend, a
United States citizen, while he was in ICE custody. Patel certified he advised
defendant in 2015 "he eventually could naturalize without fear of being
removed." Defendant certified Patel "thought that if we just waited out this
[then-]current presidential administration's immigration policy that [he] could
become a USC," a United States citizen.
Patel averred he "later learned that this readjustment of status was
simply not possible" for defendant. Further, Patel certified that in June 2018,
the federal government issued a memorandum instructing United States
Citizenship and Immigration Services officials "to place in deportation
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proceedings applicants who are denied naturalization, so long as they are
removeable in theory for any offense, however minor." Patel claimed this was
a change in policy, as previously "the Department of Homeland Security would
not place applicants for naturalization in removal proceedings unless they
presented egregious public safety threats." Patel averred defendant thus
became subject to removal again with the June 2018 policy change and
remains so without the vacatur of his two New Jersey convictions. Patel
further averred that despite his having represented defendant since shortly after
his arrest by ICE, he did not advise defendant until September 2019 about the
availability of PCR "to solve his deportation problem."
Following that advice, defendant immediately hired his current New
Jersey counsel, who filed this petition three months later. The trial court, after
reviewing the petition and defendant's certification, his wife's and Patel's, from
which these facts have been taken, as well as the parties' briefs and after
hearing oral argument, denied the petition as time barred. Although noting the
pleas were "a little bit out of order" because defendant's guilty plea to the
receiving stolen property charge made him "in violation of PTI" by operation
of law, the PCR judge found the judge who took defendant's pleas and
sentenced him to probation made him aware of the deportation consequences
of the pleas and, while "the case law says that what the judge says to the
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petitioner doesn't substitute for immigration advice," see State v. Blake, 444
N.J. Super. 285, 297 (App. Div. 2016), defendant "affirmatively represented to
[the judge] that he had immigration advice."
The PCR judge found no excusable neglect in defendant "finally
[getting] an immigration attorney," who allegedly told him "not to pursue
naturalization until after the [then-]current presidential administration
concludes." Noting defendant allegedly got that advice in March 2016,
although the then-current administration did not take office until January 2017,
the judge found that not "competent evidence." 5 The judge also found no
fundamental injustice because there was no pending removal proceeding and
the immigration advice given, or not given, did not have "anything to do with a
determination" of defendant's guilt "as to these two offenses." The judge
found defendant "allocuted. He stated what needed to be stated, and he was
found guilty." Because the judge found defendant failed to satisfy the
standards for relaxing the time restriction for a first petition pursuant
to Rule 3:22-12(a)(1)(A), she determined she was without jurisdiction to
5
Defendant's PCR counsel admits that finding of the court was based on his
error in his brief in the trial court, and that "defendant never said this."
Counsel represents the date should have been March 2017. We note there is
no date attributed to the advice in defendant's certification.
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consider the merits of defendant's petition. See State v. Brown, 455 N.J.
Super. 460, 470 (App. Div. 2018).
The court further found defendant could not succeed on his application
to withdraw his plea, because none of the Slater factors could be found in his
favor.6 The court found defendant had not asserted a colorable claim of
innocence, and his reason for wishing to withdraw his plea — "frankly that he
was unaware that he could be deported" — was belied by the plea colloquy and
"[t]here's not even an allegation as to who that lawyer was" who gave him the
advice that if he stayed out of jail there would be no immigration
consequences to the plea. The court further found there was "a plea bargain on
both of these cases," and that "[i]t would be very difficult for the State to bring
forward witnesses at this time on these particular allegations."
Defendant appeals, arguing he established excusable neglect, and
enforcement of the time bar would result in fundamental injustice. He al so
contends he received ineffective assistance of counsel based on the erroneous
advice he received as to the immigration consequences of his plea; plea
counsel's failure to correct the mis-advice; plea counsel's failure to contest the
6
The four Slater factors are: "(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 [will] result in unfair prejudice to the State or unfair advantage to
the accused." 198 N.J. at 157-58.
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PTI termination or to attempt to have defendant re-admitted to PTI, and that
there exists a presumption of prejudice, "or, at the very least, a reasonable
probability" that but for the errors the result of the proceedings would have
been different. Finally, defendant contends he "meets the 'manifest injustice'
four factor balancing test" to withdraw his guilty plea.
As already noted, we agree defendant established excusable neglect for
his failure to file his petition within five years of his January 2013 convictions.
Defendant retained Patel shortly after he was placed in ICE custody in
December 2014. The immigration lawyer obviously represented defendant
zealously in the removal proceedings, successfully securing his release from
ICE custody and convincing the government to defer prosecution of his
deportation. But Patel also advised defendant, wrongly, that he could end the
threat of deportation through naturalization proceedings. It was not until
September 2019, after the running of the five-year period for filing a petition,
that Patel advised defendant the only way he could remove the threat of
deportation was through a PCR proceeding in New Jersey. Upon receipt of
that advice, defendant retained his current New Jersey counsel the same
month, who filed this action promptly.
Based on those facts, we cannot find defendant slept on his rights.
Indeed, we find the circumstances indistinguishable from those the Court
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deemed excusable neglect in DiFrisco. 187 N.J. at 166 (finding excusable
neglect based on "defense counsel's candid statement" that "he did not realize
the full effect" of a decision of the Court favorable to the defendant issued
during the pendency of the defendant's first PCR proceeding until after review
of the defendant's first PCR petition was complete).
Defendant promptly engaged obviously able counsel to assist him in
contesting his deportation and ending the threat of his removal. That lawyer
concedes his error in not advising defendant earlier that he needed to file a
PCR petition in New Jersey. When counsel finally advised defendant he
needed to file a PCR petition, defendant acted immediately to do so. Given
those circumstances, we find defendant's failure to file his petition within the
five-year deadline the result of his excusable neglect. See State v. Milne, 178
N.J. 486, 492 (2004) (noting "[t]he five-year time limit is not absolute").
As to whether defendant established he would suffer a fundamental
injustice absent relaxation of the time bar, we are guided by the Court's
counsel in State v. Afanador that "[t]he court should consider the extent and
cause of the delay, the prejudice to the State, and the importance of the
petitioner's claim in determining whether there has been an 'injustice' sufficient
to relax the time limits" of Rule 3:22-12. 151 N.J. 41, 52 (1997). We have
already discussed the reasons for the delay — defendant was not aware he'd
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received faulty immigration advice until his arrest by ICE in 2014, and
although he promptly retained immigration counsel following his detention,
that lawyer did not advise defendant he needed to file a PCR petition in New
Jersey until 2019, when defendant did so promptly. The prejudice to the State
is difficult to assess. Defendant concedes his guilt as to the shoplifting charge,
so the prejudice to the State is only as to the charge of third-degree receipt of
stolen property, which may have been difficult for the State to prove when the
charge was made, absent a confession by the thief that defendant was aware
the Miata was stolen. The State asserted no specific claim of prejudice,
relying on only the significant passage of time, a consideration echoed by the
court.
Balanced against that difficult to quantify claim of prejudice to the State,
is defendant's claim that he unwittingly pleaded guilty to two crimes of moral
turpitude post-Padilla v. Kentucky, 559 U.S. 356 (2010), because his plea
counsel failed to advise him of the immigration consequences of the pleas and
to correct what he claims was patently incorrect advice that the pleas would
have no immigration consequences because he was sentenced to probation
with no jail time. Defendant claims that based on that incorrect advice, he
spent a year in ICE detention, and faces the threat he can be deported at any
time. We conclude that assuming defendant's factual assertions are true —
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including that he pleaded guilty to receiving stolen property not because he
was guilty but because he got erroneous advice about the immigration
consequences of risking trial and a jail term — enforcement of the time bar
would be fundamentally unjust. 7 See R. 3:22-12(a)(1)(A).
These were post-Padilla pleas, meaning defendant's plea counsel was
obligated to "advise her client regarding the risk of deportation." Padilla, 559
U.S. at 367. The Supreme Court in Padilla made clear that "[w]hen the law is
not succinct and straightforward . . . a criminal defense attorney need do no
more than advise a noncitizen client that pending criminal charges may carry a
risk of adverse immigration consequences." Id. at 369. But the Court also
held that "when the deportation consequence is truly clear, . . . the duty to give
correct advice is equally clear." Id. at 357.
7
The State asserts on appeal, as it did in the trial court, that defendant's
statement during his first plea colloquy that he "[didn't] have a choice" other
than to plead guilty, because he "didn't want to risk going to jail,"
demonstrates "consciousness of his guilt and his desire to avoid prison time"
were his chief motivators in pleading guilty, not avoiding deportation.
Defendant contends the statement is consistent with the mis-advice he got that
he could not risk going to jail because going to jail risked deportation. While
the State will have the opportunity to convince a court of its view of the
statement in an evidentiary hearing, at this stage of the proceedings, "we
consider petitioner's contentions indulgently and view the facts asserted by
him in the light most favorable to him." State v. Cummings, 321 N.J. Super.
154, 170 (App. Div. 1999).
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Accordingly, it wasn't enough when these pleas were entered for
defendant's plea counsel to simply avoid giving defendant incorrect advice, or
to avoid giving him any advice as to the deportation consequences of these
guilty pleas. See State v. Gaitan, 209 N.J. 339, 356 (2012) (noting the Court in
Padilla "recognized no distinction between providing affirmative misadvice
and providing no advice, reasoning that to limit the holding to affirmative
misadvice would absurdly give counsel 'an incentive to remain silent on
matters of great importance, even when answers are readily available'" and
"'deny a class of clients least able to represent themselves the most
rudimentary advice on deportation even when it is readily available'" (quoting
Padilla, 559 U.S. at 370-71)).
Plea counsel was obligated to determine whether there was a clear
answer to whether defendant's guilty pleas to third-degree shoplifting and
third-degree receipt of stolen property were considered crimes of moral
turpitude — because the law was clear at the time of the pleas that a non-
citizen convicted of two crimes of moral turpitude "not arising out of a single
scheme of criminal misconduct," regardless of whether he went to jail, was
deportable, 8 U.S.C. § 1227(a)(2)(A)(ii). See Aburoumi, 464 N.J. Super. at
341 (holding that when the "defendant entered his guilty plea in 2015, the
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removal consequence of PTI with an admission of guilt was clear" and thus
plea counsel was "required to inform defendant of that consequence").
Defendant's PCR counsel insists that when defendant entered his guilty
pleas in November 2012 and January 2013, the immigration consequences of
the charges as crimes of moral turpitude were "clear and easily discerned."
See State v. Castagna, 187 N.J. 293, 314 (2006) (noting a court is to judge the
reasonableness of a lawyer's actions or inactions as of the time of the conduct).
Counsel also asserts the advice defendant received from his free telephone
consult with an attorney in Atlantic City that he would "be fine" so long as he
"stay[ed] out of jail," was obviously, patently, incorrect and plea counsel had
an obligation to so advise him.
There is now, of course, no question but that a defendant is entitled to
effective assistance in the process of negotiating a plea. Missouri v. Frye, 566
U.S. 134, 144 (2012); Lafler v. Cooper, 566 U.S. 156, 168 (2012) ("If a plea
bargain has been offered, a defendant has the right to effective assistance of
counsel in considering whether to accept it."). A claim of ineffective
assistance of counsel in connection with a plea is measured by the familiar
two-part Strickland 8 standard, with the defendant required to demonstrate
counsel's advice was not "'within the range of competence demanded of
8
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
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attorneys in criminal cases.'" Tollett v. Henderson, 411 U.S. 258, 266 (1973)
(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). "[I]n order to
satisfy the 'prejudice' requirement, the defendant must show that there is a
reasonable probability that, but for counsel's errors, he would not have plead ed
guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S.
52, 59 (1985); see also Lee v. United States, 137 S. Ct. 1958, 1968-69 (2017)
(holding even a petitioner with little chance of prevailing at trial can establish
prejudice from erroneous immigration advice leading to a guilty plea if
deportation was the determinative issue for petitioner in plea negotiations).
Although Padilla and Gaitan make clear plea counsel had to avoid both
no advice and affirmative mis-advice as to the deportation consequences of the
proffered pleas, Gaitan, 209 N.J. at 356, the question of whether plea counsel
had an obligation to correct immigration counsel's incorrect advice has not yet
been decided in our State, although courts elsewhere have imposed such a duty
on plea counsel when the mis-advice was clear. See, e.g., United States v.
Swaby, 855 F.3d 233, 237, 240 (4th Cir. 2017) (holding plea counsel's error in
supplying immigration counsel with the incorrect criminal statute and failing
to read the statute to confirm immigration counsel's advice, or both, was
deficient performance); Madrigal-Estrella v. State, 463 P.3d 23, 27, 30 (Or. Ct.
App.) (explaining if the immigration consequences of the defendant's plea
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were clear and easily ascertainable, then plea counsel was responsible to
ensure the defendant received that advice and could not simply assume
immigration counsel would provide the defendant correct advice), review
denied, 470 P.3d 363 (Or. 2020).
We cannot discern from this record whether defendant is correct that
plea counsel could have easily determined with "only very basic legal
research" that these pleas would render defendant deportable, and her failure to
so advise him was inconsistent with prevailing norms of practice in late 2012
and early 2013. We are convinced, however, defendant has mustered
sufficient evidence to establish a prima facie claim of both ineffective
assistance of counsel and prejudice — that is, as a result of his counsel's
alleged failure to render advice about the deportation consequences of the
proffered guilty pleas and to correct the mis-advice he voiced during the
second plea colloquy, there is a reasonable probability defendant "'would not
have pled guilty and would have insisted on going to trial'" on at least one of
those offenses. State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting
DiFrisco, 137 N.J. at 457).
Because plea counsel's understanding of the law and her advice to
defendant, if any, about the immigration consequences of his plea lie outside
the record, as does proof of the prevailing professional norms of practice when
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defendant entered his pleas, an evidentiary hearing is necessary to test
defendant's assertions of the ineffective assistance of his counsel and resulting
prejudice. See State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998)
(explaining determinations of ineffective assistance claims based on off-the-
record conversations between petitioner and his or her counsel "are best made
through an evidentiary proceeding with all its explorative benefits, including
the truth-revealing power which the opportunity to cross-examine bestows").
The court on remand is also to reconsider defendant's motion to
withdraw his plea under the four-part Slater test. As we explained in
O'Donnell, although a claim of ineffective assistance of counsel and a motion
to withdraw a guilty plea are different applications that must be analyzed
separately, "the two tests may overlap." 435 N.J. Super. at 370 (explaining
how "[a] defendant may rely on discovery of his or her attorney's
misinformation about the consequences of a plea" to establish the reasons for
seeking to withdraw the plea under the second Slater factor as well as to
establish counsel's representation was not objectively reasonable under the
first prong of Strickland). Here, defendant's testimony in support of his
ineffective assistance claim may inform the court's assessment of the first two
Slater factors — defendant's colorable claim of innocence and the strength of
his reasons for wishing to withdraw his plea. The court may also hear
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evidence to allow it to test the State's claim of prejudice under the fourth Slater
factor.
To be clear, we do not suggest by our discussion that defendant has
established his plea was not knowing and voluntary under Rule 3:9-2, or that
he received less than competent representation or was in any way prejudiced
by the representation provided him. We conclude only that he is entitled to
relaxation of the time bar under the standard established in Rule 3:22-
12(a)(1)(A) and has established the right to present his claims at an evidentiary
hearing for the court to consider under Strickland and Slater.
Reversed and remanded. We do not retain jurisdiction.
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