STATE OF NEW JERSEY v. SHAHRIAR KANANI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4450-07T44450-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAHRIAR KANANI,

Defendant-Appellant.

__________________________

 

Submitted September 8, 2009 Decided

Before Judges Messano and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 02-02-0086.

Thomas E. Moseley, attorney for appellant.

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal by defendant Shahriar Kanani, we again consider whether the failure to advise a defendant that deportation is a mandatory consequence of the entry of a guilty plea establishes ineffective assistance of counsel. The motion court denied defendant's request for post-conviction relief (PCR) on April 10, 2008 because defendant had been advised at his March 28, 2002 plea hearing that deportation was a possible consequence of entering a guilty plea. For the reasons that follow, we reverse and remand.

On June 28, 2002, defendant, a lawful permanent resident of the United States, was sentenced to three years probation in accordance with his plea agreement on Somerset County Indictment No. 02-02-0086-I, a single charge of third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). Defendant was simultaneously sentenced for two motor vehicle offenses: driving while suspended, N.J.S.A. 39:3-40, and careless driving, N.J.S.A. 39:4-97. Other motor vehicle summonses were dismissed pursuant to the plea, and an appropriate term of driver's license suspension was imposed, together with fines, penalties, and assessments.

Although defendant was made aware of the possibility of deportation during the plea colloquy, via the plea form he signed and otherwise, he was not advised that the nature of the offense made deportation automatic pursuant to 237(a)(2)(C) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1227(a)(2)(C) (as amended). As defendant's plea counsel certified, it is his custom to review the paragraph addressing deportation with his clients, but he had no specific recollection of doing so with this defendant. When defendant's plea was entered, counsel did not know that deportation was mandatory for a weapons offense.

Defendant's September 11, 2007 certification filed in support of his PCR petition recounts that he became a lawful, permanent resident in 1997, at age seventeen. On some unspecified date after the coup of the last Shah of Iran, he and his family relocated to this country. Defendant's green card was scheduled to expire on October 30, 2007. In preparation for renewal, defendant consulted with an immigration attorney, although the record does not indicate when this occurred. It was then that he learned that the guilty plea would prohibit renewal of his green card.

The prosecutor's letter brief opposing PCR states, without attribution, that defendant discovered the mandatory deportation provisions in November 2006. In a similarly unembellished fashion, the PCR court made reference to that date in its decision.

Furthermore, defendant's June 28, 2002 judgment of conviction indicates, in a separate section entitled "Reasons for Sentence," that defendant was already on probation in Middlesex County for possession of a handgun and possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4, a crime that occurred five days prior to the arrest in this case. We know from the "Reasons for Sentence" that defendant was sentenced to five years probation in April 2002. We do not know, however, if an application similar in nature to this PCR is being made in that case.

Defendant's points on appeal are:

POINT I

THE SUPERIOR COURT ERRED ON TIMELINESS.

POINT II

KANANI'S APPLICATIONS SHOULD HAVE BEEN GRANTED.

A. POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED.

B. THE PLEA SHOULD HAVE BEEN WITHDRAWN AS INVOLUNTARY.

In ruling against defendant, the PCR court relied heavily on the absence of facts establishing excusable neglect exempting defendant from the five-year time bar which ordinarily precludes consideration of his application. R. 3:22-12(a). Hence, the PCR court did not afford defendant the opportunity for an evidentiary hearing. In making its decision, the court also relied on the notion that defendant's allegations did not make out a prima facie case in any event because having been advised that the plea might result in deportation passed constitutional muster.

When a defendant is making an ineffective-assistance-of-counsel claim on PCR, his burden is to establish that, in the context of a guilty plea, "(i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases,' 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 (1994) (citations omitted) (alteration in original).

The PCR court held that notice to defendant of the mere possibility of deportation was sufficient to satisfy both federal and state constitutional guarantees of effective assistance of counsel. In other words, that the advice fell within the range of competence required of defense attorneys. In support of that conclusion, the court cited to State v. Garcia, 320 N.J. Super. 332 (App. Div. 1999), and State v. Chung, 210 N.J. Super. 427 (App. Div. 1986).

Additionally, the PCR court analyzed deportation to be a collateral consequence of the entry of defendant's guilty plea. That analysis was rejected as to deportation in State v. Nunez-Valdez, 200 N.J. 129 (2009). (Traditional dichotomy of whether the consequences of a plea are penal or collateral is not relevant to decisions as to immigration questions as deportation is currently treated as a penal consequence that requires notice to a defendant.) In reaching its PCR determination, the court did not have the benefit of Nunez-Valdez, decided more than a year later.

Even prior to Nunez-Valdez, however, the principle was undergoing change. The cases have begun to acknowledge that some "collateral" consequences, such as deportation, are so devastating that to characterize them as merely "collateral" distorts the constitutional analysis. State v. Bellamy, 178 N.J. 127, 138-39 (2003). The characterization of a consequence as direct or collateral alone should not dictate whether in fairness a defendant should be advised about it prior to entry of a guilty plea. Ibid. To this defendant, deportation to Iran may be a consequence of such magnitude that but for the erroneous advice he was given, he would not have entered a guilty plea.

Moreover, it is significant that the time beyond the five-year limit in this case was only ninety days. See State v. Afanador, 151 N.J. 41, 52 (1997) ("Absent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay."). The impact of the ninety-day delay pales in comparison to the impact of deportation to Iran. This is particularly true here where the State alleges generalized prejudice resulting from defendant's delay, but fails to do so specifically, either through affidavits, certifications or testimony. Given the potential manifest injustice to this defendant, it may well be appropriate to relax the time bar pursuant to Rule 1:2 once an evidentiary hearing is conducted. See also State v. Milne, 178 N.J. 486, 492 (2004) ("'[A] court may relax time bar if the defendant alleges facts demonstrating that the delay was due to the defendant's excusable neglect or if the 'interests of justice' demand it.'") (citation omitted); Afanador, supra, 151 N.J. at 52.

A trial judge's conclusions of law are not entitled to any special deference and will not be affirmed unless they are correct. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Because the PCR court decided that defendant's claim of ineffective assistance of counsel entirely lacked merit, no evidentiary hearing was conducted. See State v. Preciose, 129 N.J. 451 (1992). We conclude, to the contrary, that defendant should be granted an evidentiary hearing and the opportunity to establish ineffective assistance of counsel such as may entitle him to relief. State v. Marshall, 148 N.J. 89, 158 cert. denied, 522 U.S. 850 (1997) (evidentiary hearing should be granted if defendant would be entitled to relief when looking at facts in a light most favorable to defendant). Accordingly, we remand for that purpose.

Reversed and remanded for further proceedings consistent with this opinion.

Question 17 on defendant's signed plea form states, "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 or his counsel circled the box which indicates "Yes."

Reference was made by the PCR court during oral argument to defendant's unavailability, presumably either because he is awaiting deportation or has actually already been deported.

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A-4450-07T4

September 29, 2009