STATE OF NEW JERSEY v. CLAYTON MARSHALL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

CLAYTON MARSHALL,

Defendant-Respondent.

_______________________________

 

Before Judges Lihotz and Hoffman.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 97-07-1993.

 

Natalie A. Schmid Drummond, Assistant Prosecutor, argued the cause for appellant (Warren W. Faulk, Camden County Prosecutor, attorney; Ms. Schmid Drummond, of counsel and on the brief).

 

Justin T. Loughry argued the cause for respondent (Loughry & Lindsay, LLC, attorneys; Mr. Loughry, of counsel and on the brief).

PER CURIAM

The State of New Jersey appeals from a Law Division order granting defendant Clayton Marshall's petition for post-conviction relief (PCR). Following an evidentiary hearing, the judge vacated defendant's conviction and allowed him to withdraw his guilty plea after concluding trial counsel misinformed defendant of attendant deportation consequences. On appeal, the State argues:

POINT I

 

THE TRIAL COURT ERRED BY GRANTING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF WITHOUT MAKING SPECIFIC FINDINGS THAT DEFENDANT HAD DEMONSTRATED EXCUSABLE NEGLECT, BY APPLYING THE WRONG LEGAL STANDARD IN ANALYZING DEFENDANT'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM FOR FAILING TO ADVISE HIM OF THE POTENTIAL DEPORTATION CONSEQUENCE OF PLEADING GUILTY, AND BY INTERTWINING ITS ANALYSIS OF THIS ISSUE WITH AN ISSUE THE COURT HAD DETERMINED WAS TIME-BARRED.

 

A. Defendant fails to demonstrate excusable neglect to overcome the time bar on the immigration issue.

 

B. At the time of defendant's guilty plea of 1997, defense counsel had no heightened obligation to advise him that he could be deported as a result of his guilty plea.

 

C. The trial court erred by intertwining its erroneous analysis of the ineffective assistance of counsel claim based on the failure to advise defendant of the deportation consequence of pleading guilty with the time-barred claim that counsel was ineffective for not filing a suppression motion.

Following our review of these arguments, in light of the record and applicable law, we affirm.

 

I.

Pursuant to a negotiated agreement in 1997, defendant pled guilty to third-degree manufacturing and distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5a(1). The State agreed to dismiss all remaining charges and recommend a non-custodial probationary term. Following another arrest in 2011, defendant's 1997 conviction alerted Immigration and Customs Enforcement (ICE), which began deportation proceedings. Defendant filed a PCR petition, which included an assertion that plea counsel was ineffective because she provided misinformation regarding the immigration consequences of the 1997 conviction.

The PCR judge considered the pleadings and denied PCR on all issues except whether defendant was given incorrect advice regarding the deportation consequences flowing from a conviction. An evidentiary hearing was ordered.

The judge initially required defendant to demonstrate excusable neglect, necessary to relax the time-bar imposed by Rule 3:22-12(a)(1). Defendant explained the circumstances leading to his acceptance of the plea agreement and his discovery he was subject to deportation. He testified he was born in Mandeville Manchester, Jamaica, and moved to the United States at age eight. Although he had urged counsel to move to suppress the drug evidence because he believed the warrantless search was unconstitutional, counsel advised him to enter a guilty plea and accept a probationary sentence. The plea agreement showed the circled response of "N/A" to question seventeen, which asked: "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?" Defendant testified he did not circle the answers on the plea agreement. Defendant's testimony continued and this colloquy occurred between defendant and PCR counsel:

Q. Now did you circle anything on this form?

 

A. No, I did not.

 

Q. Did anybody ask you this particular question, that you can remember?

 

A. Not at all.

 

Q. Did anyone ask you, in the context of getting ready to plead guilty, where you were born?

 

A. No.

 

Q. Did anyone explain to you that if you were not a United States citizen you would have some immigration problems for this conviction?

 

A. Not at all.

 

PCR counsel next showed defendant the presentence report (PSR). Defendant insisted no one ever asked him to review the document prior to sentencing. The report contained a discrepancy regarding defendant's place of birth. Defendant also denied that the probation officer asked him where he was born or whether he was a United States citizen.

The errors contained in the PSR are found on the first page, which listed defendant's place of birth as "Camden" and page four of the attached Uniform Defendant Intake Request (UDIR) form repeating defendant's place of birth was Camden and also listing him as a "U.S." citizen.1 Defendant's high school transcript, which was also attached, correctly stated on each of the two-pages defendant was born in Jamaica.

Defendant first learned he would be deported following a 2011 arrest for his involvement in a mutual scuffle. He challenged that arrest and was acquitted. Defendant was asked:

If at that time, [1997] when you were talking with the Public Defender's Office, if someone, judge, Public Defender, probation officer, anybody, if they had said to you you're not an American citizen, if you plead guilty to this charge, you're going to be deported, or you may very well be deported, would that have changed, in any way, your decision about how to go about . . . your case?

 

Defendant responded that he would have hired counsel had he been properly informed, stating: "I didn't even want to take the plea bargain, but, you know, they just kept insisting that it's just probation, three years, so I without a doubt I would have fought it, with everything I had."

The PCR judge determined the delay in filing for PCR resulted because defendant was unaware of the need to request PCR until he discovered he was subject to deportation when detained by ICE. The judge found defendant's PCR petition was timely filed, concluding absent deportation proceedings, it would be unreasonable to "expect" non-resident defendants to initiate PCR proceedings within five years of a plea. The judge continued the evidentiary hearing to address defendant's claim he was misinformed of the consequences of entering a guilty plea.

The State presented testimony from Master Probation Officer Shelley Downing and Senior Probation Officer Tonya Honey. Although involved, neither Downing nor Honey had specific recollection of the events surrounding the preparation of defendant's PSR. They also acknowledged others had a role in the report's preparation.

Downing spoke generally regarding the procedure employed when preparing a PSR, clarifying her role in conducting the pre-sentence interview. After an interview, she provided her notes to Honey to complete the forms. Downing acknowledged several errors in the report, in addition to defendant's place of birth and country of citizenship. These included the complaint date, the date of defendant's arrest, and a reference to defendant as "she."

During her testimony, Honey also described the general procedures she followed when preparing a PSR from the information recorded on the uniform presentence packet. She stated she merely inputted the handwritten data into the court's computer system.

On the third-day of the hearing, defendant was recalled and appeared by telephone. He recalled his pre-sentence interview stating it was conducted by a male probation officer, whom he described, but whose name he could not recall. Defendant reaffirmed and emphatically stated he never told anyone he was "an American citizen" or that he was born in Camden.

At the close of evidence, the judge credited defendant's testimony, finding all factual errors in the PSR were not defendant's fault, thereby rejecting the State's theory that defendant intentionally misrepresented his place of birth. Moreover, the judge concluded trial counsel had an obligation to assure the PSR information was accurate. Further, the response recorded for question seventeen of the plea agreement was found to be erroneous and represented a serious lapse in trial counsel's required representation. Finally, the judge concluded, but for counsel's errors, defendant would not have pled guilty. He granted defendant's petition for PCR, vacated his conviction, set aside his guilty plea, and returned the case to the court's status list.

The State moved for leave to appeal, which we granted by order dated August 15, 2013.

II.

PCR "'is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459 (1992)).

It is well-settled that to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); [] Preciose, [supra,] 129 N.J. [at] 459 (reciting preponderance of the evidence standard of proof); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard).

 

[State v. L.A., 433 N.J. Super. 1, 13 (App. Div. 2013).]

 

New Jersey has adopted the two-prong test handed down by the United States Supreme Court in the companion cases of Strickland and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Fritz, supra, 105 N.J. at 58.

To establish a prima facie case of ineffective assistance of counsel under the first prong of the Strickland test, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. This requires a showing that counsel was so deficient, "that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. . . ." State v. Gaitan, 209 N.J. 339, 349-50 (2012) (citation and internal quotation marks omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Thus, "[t]his test requires the defendant to identify specific acts or omissions that are outside the wide range of reasonable professional assistance . . . ." State v. Jack, 144 N.J. 240, 249 (1996) (citation and internal quotation marks omitted). "'Reasonable competence' does not require the best of attorneys, but certainly not one so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." State v. Nash, 212 N.J. 518, 543 (2013). When a guilty plea is part of the equation, counsel's performance is not deficient if "a defendant considering whether or not to plead guilty to an offense receives correct information concerning all of the relevant material consequences that flow from such a plea." State v. Agathis, 424 N.J. Super. 16, 22 (App. Div. 2012).

To meet the second prong, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. In the context of a guilty plea, this prong is satisfied when a defendant establishes a reasonable probability he or she would not have pled guilty and insisted on going to trial, but for counsel's errors. Gaitan, supra, 209 N.J. at 351.

Our review of an order granting or denying PCR contains consideration of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2793, 126 L. Ed. 2d 898 (2005). We defer "to a PCR court's factual findings based on its review of live witness testimony" and will uphold findings that are "supported by sufficient credible evidence in the record." Nash, supra, 212 N.J. at 540 (citations omitted). However, "we need not defer to a PCR court's interpretation of the law[,]" as all legal conclusions are reviewed de novo. Id. at 540-41.

III.

 

The State argues the PCR judge erred by failing to make specific factual findings demonstrating defendant overcame the time bar imposed by Rule 3:22-12, and in applying appropriate legal standards to defendant's claims of ineffective assistance of counsel. More specifically, we will examine the following assertions by the State: (1) defendant failed to demonstrate his untimely application was a result if excusable neglect; (2) the evidence does not show counsel was ineffective because she had no obligation to advise defendant he could be deported; and (3) the judge incorrectly considered defendant's claim he would have filed a motion to suppress drug evidence because the stop and warrantless search was illegal when examining whether counsel's error affected the proceeding.

A.

The State maintains defendant's PCR petition is time barred and suggests the PCR judge failed to make the necessary findings supporting excusable neglect to waive the limitations period. The State believes Downing's and Honey's testimony showed defendant provided the misleading information recorded in the PSR to probation. The State also contends the judge ignored the resultant "fundamental injustice" and prejudice the State would suffer because of the significant passage of time if the time bar is waived. We are not persuaded.

Rule 3:22-12(a)(1) imposes a five-year limitations period within which PCR petitions must be filed. The five-year period begins when the judgment of conviction is entered and is "generally neither stayed nor tolled by an appellate or other proceeding." State v. Murray, 162 N.J. 240, 249 (2000) (citations omitted). The rule waives the time limitation if "facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice." R. 3:22-12(a)(1).

The principal purpose of Rule 3:22-12(a) is to "encourage defendants reasonably believing they have grounds for post-conviction relief to bring their claims swiftly and discourage[] them from sitting on their rights until it is simply too late for a court to render justice." State v. Cummings, 321 N.J. Super. 154, 165 (App. Div.) (citing State v. Mitchell, 126 N.J. 565, 576 (1992)), certif. denied, 162 N.J. 199 (1999). Encouraging litigants to file promptly serves two functions: avoiding prejudice to the State resulting from retrying contested issues long after they are resolved, and respecting the need for finality in judicial determinations. Ibid.

When determining whether facts show "excusable neglect" a defendant must demonstrate "more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). "If the petitioner does not allege sufficient facts, the Rule bars the claim." Mitchell, supra, 126 N.J. at 576. Factors to be considered when determining whether a petitioner asserts a sufficient basis for relaxing the five-year constraint include "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." State v. Afandor, 151 N.J.41, 52 (1997). See alsoNorman, supra, 405 N.J. Super.at 159. "Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay." State v. Milne, 178 N.J.486, 492 (2004) (citation and internal quotation marks omitted).

The State maintains Downing's and Honey's testimony credibly showed the PSR was completed based on information supplied by defendant. We reject this premise as the State cannot overcome the clear credibility findings made by the PCR judge. The judge credited defendant's statements on this issue, leading him to determine defendant was blameless for the errors in the PSR. We are not free to disregard these factual findings, to which we defer, because our review of "a cold record is a pale substitute for a trial judge's assessment of the credibility of a witness he has observed firsthand." Nash, supra, 212 N.J. at 540. Relying on these credible, substantiated facts, the judge concluded "until the defendant becomes the subject of ICE proceedings, it's unreasonable to expect him to initiate a PCR application." Understanding defendant filed his PCR petition within a few months of learning he was subject to deportation, the judge elaborated:

I think it's unreasonable to ask people to start PCR applications years after they pled guilty, within that first five-year period, when nothing is pending. . . . We want to say, look, maybe there's a problem, maybe there's not, but unless they try and deport you, why do we need to decide? It's human nature, and to some extent, it's laudable that we don't try to sort out every potential conflict while it's still a potential conflict. Let's wait to see if it really is a conflict before we devote our time and resources to that.

The PCR judge allowed the State an opportunity to locate published authority holding to the contrary. But this leniency does not equate to "an inconclusive finding" as the State now suggests.

We determine the judge sufficiently supported his findings that defendant's delay in filing for PCR was not dilatory because he had no reason to suspect his attorney had rendered ineffective assistance by misinforming him of the deportation consequences of his guilty plea until he was taken into custody by ICE. These findings support his conclusion defendant demonstrated excusable neglect.

We also reject the State's reliance on this court's holding in State v. Brewster, 429 N.J. Super. 387 (2013) as seemingly barring PCR relief. In Brewster, the defendant, seeking to avoid deportation, filed for PCR twelve years after his conviction. Id. at 390. At the time of his plea, the defendant was aware of the possible immigration consequences of a conviction and answered "Yes" to question seventeen. Id. at 391. Three years before he filed his PCR petition, the defendant consulted an immigration attorney, who advised the conviction "could be a problem." Id. at 399-400.

Under these facts, this court declined the invitation to relax the time-bar imposed by Rule 3:22-12, explaining:

Defendant cannot assert excusable neglect simply because he received inaccurate deportation advice from his defense counsel. If excusable neglect for late filing of a petition is equated with incorrect or incomplete advice, long-convicted defendants might routinely claim they did not learn about the deficiencies in counsel's advice on a variety of topics until after the five-year limitation period had run.

 

[Id. at 399-400 (citations omitted).]

 

The case at bar is clearly distinguishable from Brewster. Unlike the defendant in Brewster, defendant here was not informed he was subject to deportation as reflected by the incorrect "N/A" response to question seventeen of the plea agreement. Further, defendant reacted immediately upon learning of the errant advice.

On balance, the possible prejudice to the State caused by the passage of time does not outweigh the prejudice to defendant, who was found blameless in creating the problem. We find no error in the PCR judge's conclusion that defendant's delay was inherently excusable, warranting review of defendant's PCR claims, stemming from his fourteen-year-old conviction.

B.

In State v. Nu ez-Vald z, 200 N.J. 129, 143 (2009), the Court held "a defendant can show ineffective assistance of counsel by proving that his guilty plea resulted from 'inaccurate information from counsel concerning the deportation consequences of his plea.'" Brewster, supra, 429 N.J. Super. at 392 (quoting Nu ez-Vald z, supra, 200 N.J. at 143). The United States Supreme Court clarified counsel's duty, which is not limited to avoiding "false or misleading information" as identified in Nu ez-Vald z, supra, 200 N.J. at 138, but encompasses an affirmative duty to inform a defendant entering a guilty plea, regarding the relevant mandatory deportation law if it is "succinct, clear, and explicit[.]" Padilla v. Kentucky, 559 U.S. 356, 368, 130 S. Ct. 1473, 1483, 176 L. Ed. 2d 284, 295 (2010). The Court made clear 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." State v. Barros, 425 N.J. Super. 329, 331 (App. Div. 2012) (citing Padilla, supra, 559 U.S. at 369, 130 S. Ct. at 1483, 176 L. Ed. 2d at 296).

In Chaidez v. United States, __ U.S. __, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013), the Court held Padilla imposed a new obligation and announced a new rule of law. Accordingly, its holding would be applied prospectively and "[u]nder Teague[ v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075, 103 L. Ed. 2d 334, 356 (1989)], defendants whose convictions became final prior to Padilla, therefore cannot benefit from its holding." Chaidez, supra, __ U.S. at __, 133 S. Ct. at 1113, 185 L. Ed. 2d at 162.

The State argues defendant's conviction, which predates Padilla, cannot be set aside because counsel gave no advice regarding deportation. Thus, "defendant's guilty plea is not vulnerable because neither the court nor counsel warned the defendant about the deportation consequences of the guilty plea." Gaitan, supra, 209 N.J. at 361. See also State v. Santos, 210 N.J. 129, 143 (2012) ("Petitions challenging the entry of guilty pleas prior to Padilla on ineffective assistance of counsel grounds must be assessed under the law as it existed under []Nu ez Vald z[], which instead focuses on whether counsel provided affirmative misadvice regarding the immigration consequences of a guilty plea.") (citing Gaitan, supra, 209 N.J. at 373-74).

Deferring to the judge's factual findings and credibility determinations made following the evidentiary hearing, we reject the State's assertion that defendant failed to satisfy his burden warranting PCR relief. See Nu ez-Vald z, supra, 200 N.J. at 141 ("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 accept the PCR judge's findings, which are more than amply supported by the record, giving deference to "'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 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Based on these facts, we conclude defendant was essentially given misadvice on the subject of deportation.

The record supports the notion that trial counsel did not review all questions on the plea agreement with defendant. Most important, question seventeen, directed to noncitizen-defendants, was marked not applicable. Defendant testified he did not circle the responses on the plea form. The logical conclusion from this is counsel did so. By dismissing the applicability of question seventeen's inquiry regarding deportation, counsel imparted no information regarding the possibility of deportation. Essentially, counsel decided deportation was "inapplicable" to defendant's circumstances. It is that determination and counsel's resultant conduct of omitting any discussion on the issue, which equates to affirmative misadvice under the Nu ez-Vald z standard.

These facts are also distinguishable from the reported cases where counsel did not discuss the deportation consequences attached to a guilty plea, but in fact put a defendant on notice of the problem by properly circling "Yes" to question seventeen. Gaitan, supra, 209 N.J. at 347. Here, by circling "N/A," which is false and affirmatively misleading, counsel misdirected plaintiff. Nu ez-Vald z, supra, 200 N.J. at 131. These circumstances establish ineffective assistance of counsel, satisfying Strickland's first prong, which is necessary to give rise to PCR. Santos, supra, 210 N.J. at 144; Gaitan, supra, 209 N.J. at 361.

It is also noted, that prior to sentencing, counsel had a duty to read the entire PSR, which states defendant's place of birth may be Jamaica. Certainly, this vital function was not performed by counsel furthering the erroneous response to question seventeen. See also State v. Garcia, 320 N.J. Super. 332, 340 (App. Div. 1999) (stating "the "N/A" answer to question 17 supported [the defendant's] position," such that "a prima facie case of misinformation had been established").

Following our review, we concur with the PCR judge's conclusion that counsel's failure to render advice with respect to the deportation consequences of a guilty plea resulted from conduct that equates to affirmative misadvice. Counsel's conduct, therefore, was so deficient that she was "not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

 

C.

Strickland's second prong requires a defendant to "'show that the deficient performance prejudiced the defense.'" State v. Taccetta, 200 N.J. 183, 193 (2009) (citation omitted). Under the second prong, prejudice is not presumed and must be proven by the defendant. Fritz, supra, 105 N.J. at 52. The inquiry is "can defendant show that, had he been properly advised, it would have been rational for him to decline the plea offer and insist on going to trial and, in fact, that he probably would have done so?" State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011) (citation omitted). "[A] petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, supra, 559 U.S. at 372, 130 S. Ct. at 1485, 176 L. Ed. 2d at 297.

In the context of a guilty plea, this prong is established by a demonstration "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." Maldon, supra, 422 N.J. Super. at 482 (alteration in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). This "is an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in . . . the result reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (alteration in original) (citations omitted).

During the hearing, defendant testified had he known he would be deported, he would have challenged the charges and moved to suppress the evidence. The PCR judge concluded

I think more accurately, [defendant] would have insisted upon there being a suppression motion to go forward. Here I'm only speculating, but if the suppression motion were granted, the case is over. If a suppression motion is denied, does the defendant still insist upon a trial? Does the defendant plead . . . while reserving his rights or does he just simply plead? At this point in time, it seems to me, I don't have to decide that particular issue . . . .

 

The State maintains the PCR judge erred in concluding the outcome was altered by counsel's ineffective assistance, arguing a suppression motion would have been "futile and unsuccessful."

Here, defendant's assertions that he would have fought the charges were found credible and supported by the public defender's client interview sheet, which recounted defendant's belief "the search was illegal and he wants us to look into a motion to suppress." Defendant's suppression claim was based on the warrantless stop and search, presumably based on race. The State's police witness offered contrary factual assertions, necessitating a hearing to determine credibility.

We reject the State's assertion defendant could only show prejudice if he could prove suppression would have been granted. The standard is not that onerous. Only "[w]hen a defendant's ineffective assistance of counsel claim is based on a failure to file a suppression motion," must defendant "establish that the suppression motion has merit." State v. Ball, 381 N.J. Super. 545, 554 (App. Div. 2005) (citing State v. Fisher, 156 N.J. 494, 501 (1998)). Therefore, defendant's evidence demonstrated not only that there was a reasonable probability the result would have been different had he been properly advised, but also that it was rational for him to decline the favorable plea offer and insist on going to trial. See Maldon, supra, 422 N.J. Super. at 486. Accordingly, defendant also satisfied the second prong of the Strickland/Fritz test.

Affirmed.

1 We note the UDIR form contains a certification regarding indigence and signature lines for the interviewer and defendant certifying the accuracy of the information recorded. The exhibit in this record is unsigned and undated.