STATE OF NEW JERSEY v. PAULO BARROS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1288-10T2

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

PAULO BARROS,

Defendant-Respondent.

____________________________________________________

June 6, 2011

Submitted May 25, 2011 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-07-01165.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney forappellant (SimonLouis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

Iacullo Martino, L.L.C., attorneys for respondent (Anthony J. Iacullo, of counsel; Mr. Iacullo and Joshua H. Reinitz, on the brief).

PER CURIAM

Defendant pled guilty, on April 21, 2008, to one count of third-degree distribution of a controlled dangerous substance within 1000 feet of school property, N.J.S.A. 2C:35-5a; N.J.S.A. 2C:35-7. He was sentenced, on September 12, 2008, to a three-year prison term, with a one-year period of parole ineligibility; other penalties were also imposed.

Defendant filed a petition for post-conviction relief (PCR) on March 19, 2010, arguing that he was denied the effective assistance of counsel because his attorney failed to advise that a guilty plea "would ultimately result in [his] deportation." Defendant also provided the certification of his trial attorney, who conceded he "did not specifically advise [defendant] that as the result of this plea, he would be deported."

Rather than contest defendant's factual allegations, the State based its opposition on its contention that Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), and State v. Nu ez-Vald z, 200 N.J. 129 (2009), should not be applied retroactively.1 That is, the State asserts that, when defendant pled guilty, the existing level of professional competence precluded counsel from providing misleading information but that it did not prevent counsel from "declin[ing] to discuss deportation consequences at all with his client." The PCR judge rejected that argument and held, during the course of her oral opinion of August 25, 2010, that counsel was obligated to provide affirmative advice about the deportation consequences of defendant's guilty plea, relying on Padilla. An order that vacated the guilty plea and the judgment of conviction and returned the matter to the active trial list was entered on August 30, 2010.

We granted the State's motion for leave to appeal to consider the sole issue presented in its brief:

THE RECENT UNITED STATES AND NEW JERSEY SUPREME COURT CASES CONCERNING DISCLOSURE OF IMMIGRATION CONSEQUENCES ARE NOT RETRO-ACTIVE, AND THE APPLICATION FOR POST-CONVICTION RELIEF WAS IMPROPERLY GRANTED.

We reject the State's argument and affirm substantially for the reasons set forth in our recent decision in State v. Gaitan, __ N.J. Super. __ (App. Div.), cert. granted, __ N.J. __ (2011), which is not materially different from the case at hand.

Padilla makes clear that attorneys cannot remain silent and must affirmatively advise noncitizen clients about the deportation consequences of their guilty pleas. As Justice Stevens said for the Court in Padilla:

[a] holding limited to affirmative misadvice would invite two absurd results. First, it would give counsel an incentive to remain silent on matters of great importance, even when answers are readily available. Silence under these circumstances would be fundamen-tally at odds with the critical obligation of counsel to advise the client of "the advantages and disadvantages of a plea agreement." Libretti v. United States, 516 U.S. 29, 50-51, 116 S. Ct. 356, [368,] 133 L. Ed.2d 271[, 290] (1995). When attorneys know that their clients face possible exile from this country and separation from their families, they should not be encouraged to say nothing at all. Second, it would deny a class of clients least able to represent themselves the most rudimentary advice on deportation even when it is readily avail-able. It is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so "clearly satisfies the first prong of the Strickland [v. Washing-ton, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] analysis." Hill v. Lockhart, 474 U.S. 52, 62, 106 S. Ct. 366[, 372], 88 L. Ed.2d 203[, 212] (1985) (White, J., concurring in judgment).

[Padilla, supra, 559 U.S. at __, 130 S. Ct. at 1484, 176 L. Ed. 2d at 296-97.]

The State's argument that this holding constitutes a new rule, which it believes should be applied only prospectively, is without merit.2

The flaw in the State's argument is demonstrated by the fact that, in holding that the Sixth Amendment requires that affirmative immigration advice must be provided, Padilla relied upon "the weight of prevailing professional norms," citing authorities preexisting defendant's guilty plea in this case. Id. at __, 130 S. Ct. at 1482-83, 176 L. Ed. 2d at 294-95. As a result, in Gaitan, we held that the argument -- at least as a matter of federal law -- that "no advice is the equivalent of misadvice is not new," and that a noncitizen defendant -- prior to Padilla -- was entitled to affirmative advice about the deportation consequences of a guilty plea. Gaitan, supra, __ N.J. Super. at __ (slip op. at 9).3 And because that principle is not new, the threshold requirement for the retroactivity analysis urged by the State has not been met. See State v. Afanador, 151 N.J. 44, 53 (1999).

Moreover, because we believe Padilla and Nu ez-Vald z would at least apply to cases in the pipeline when they were decided, we would conclude, also for the reasons set forth in Gaitan, __ N.J. Super. at __ (slip op. at 12-13), that the principles announced in those cases, if new, would apply to defendant's PCR petition, which was filed after Nu ez-Vald z was decided and a few days before Padilla was decided.

1Because the State did not contest these factual assertions, the judge was not required to conduct an evidentiary hearing and entitled to assume the truth of the sworn statements of defendant and his attorney.

2The State did not dispute defendant's contention that he would not have accepted the plea offer if he knew deportation would follow. As a result, the judge correctly concluded that the second prong of the Strickland test was also met.

3Here, the State argues that defendant knew from Question 17 of the plea form that by pleading guilty he "may be deported." This, however, is the only evidence to suggest that any information about the deportation consequences were conveyed to defendant, and his response to Question 17 is alone an insufficient substitute for a thorough discussion of the deportation consequences of a guilty plea, as the Court recognized in Nu ez-Vald z, supra, 200 N.J. at 143-44. Furthermore, advice that a particular guilty plea "may" result in deportation is insufficient in many cases. Although Padilla recognized that the deportation consequences of some guilty pleas are so complex as to elude counsel's ability to affirmatively assert what those consequences might be, where "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequences," counsel must provide advice as to whether deportation is "presumptively mandatory." Padilla, supra, 559 U.S. at __, 130 S. Ct. at 1483, 176 L. Ed. 2d at 295. Because the State has not argued, in seeking to avoid Padilla's application to the matter at hand, that defendant's guilty plea presented a "complex" deportation problem, we assume Padilla's limitations in that regard were not implicated here.