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November 30, 2015


Submitted November 4, 2015 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-09-1497.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Deepa S. Y. Jacobs, Assistant Prosecutor, of counsel and on the brief).


Defendant Grzegorz Lepianka appeals from a May 1, 2014 Law Division order denying his petition for post conviction relief (PCR), in which he claimed ineffective assistance of counsel regarding advice about the immigration consequences of his guilty plea. For the reasons that follow, we reverse and remand for an evidentiary hearing.

On September 1, 2011, defendant was indicted for two counts of third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and (b)(3) (counts one and two); one count of third-degree possession of ecstasy with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2) (count three); one count of fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count four); and one count of fourth-degree assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5) (count five).

At a January 3, 2012 hearing, the plea judge questioned defendant about his understanding of the deportation consequences of his guilty plea. Defendant acknowledged that he was not a United States citizen, and was pleading guilty to an "aggravated felony" that "will lead to deportation." Furthermore, defendant confirmed that he had signed a Nu ez-Vald z1 form that stated, in all capital letters, "You are entering a guilty plea with the understanding that there is a substantial likelihood that you will be deported, and your deportation should not be a surprise, but should be anticipated as a result of this guilty plea."

However, defendant's attorney indicated at the same hearing that deportation was not a foregone conclusion, stating that "it would seem the only chance [defendant] has to stay in this country is drug court . . . ." Nevertheless, the plea judge clarified that deportation was always a possibility

Q: [The] possibility of deportation never goes away. Like, if you don't follow the rules in drug court, for example, and they put you in State prison, then that could also lead to deportation. So, that possibility of mandatory deportation never goes away. So, I want you to understand that, first. So, knowing that, do you still want to plead guilty?

A: Yes, Your Honor.

Thereafter, defendant entered a plea agreement in which the State agreed to dismiss counts one, two, four, and five in exchange for defendant's guilty plea to count three. Furthermore, pursuant to the plea agreement, the State recommended a five-year custodial sentence or, alternatively, a special term of probation in the event defendant was accepted into the drug court program.

On February 2, 2012, defendant was accepted into the drug court program and sentenced to a three-year term of special probation. Defendant did not appeal this sentence. However, following his entry into the drug court program, he was served with a notice of deportation and placed in federal custody by the Immigration and Customs Enforcement Agency.

Thereafter, defendant filed a petition for PCR. On May 1, 2014, the PCR judge denied defendant's petition without holding an evidentiary hearing, concluding

If counsel made any misstatements to defendant pertaining [to] the deportation consequences of Drug Court, it is crystal clear, based upon [the plea judge's] colloquy with him, the written Plea form, the Nu ez-Vald z form, and the fact that he was not admitted into Drug Court at the time of the plea, that the outcome would not have been any different. Defendant was acutely aware that his plea was not conditioned upon entry into Drug Court, and that deportation was almost a certainty.

To establish a prima facie case of ineffective assistance of counsel for purposes of obtaining PCR, a defendant must show that: (1) counsel's performance was objectively deficient; and (2) counsel's deficient performance prejudiced the defendant by materially contributing to his conviction. State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the United States Supreme Court's two-prong test from Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). Upon showing a prima facie case of ineffective assistance, a petitioner for PCR is generally entitled to an evidentiary hearing to establish the factual basis for the petition. State v. Porter, 216 N.J. 343, 354 (2013) (citing R. 3:22-10(b)).

With regard to the first prong of the prima facie case, our Supreme Court has clarified that an attorney who affirmatively misinforms a client about the immigration consequences of a guilty plea renders objectively-deficient assistance. State v. Gaitan, 209 N.J. 339, 374 75 (2012). As for the second prong, the requirement of "prejudice" is satisfied upon a showing 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. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)); see also Padilla v. Kentucky, 559 U.S. 356, 369 73, 130 S. Ct. 1473, 1484 86, 176 L. Ed. 2d 284, 296 98 (2010) (holding that an attorney's failure to advise a non-citizen client of the immigration risks attendant on pleading guilty constituted ineffective assistance of counsel).

The Gaitan Court noted that when reviewing PCR petitions based on allegations of improper or inadequate immigration advice, trial courts should carefully review the plea record before deciding whether to hold an evidentiary hearing

[I]f counsel provided false information, or inaccurate and affirmatively misleading advice about removal consequences of a guilty plea, then deficiency may exist for purposes of establishing, at present, a prima facie ineffective assistance of counsel claim entitling defendant to an evidentiary hearing in a PCR proceeding. In determining eligibility for an evidentiary hearing in such circumstances, like others where a court may be confronted with competing affidavits between a client and counsel, we trust that courts will evaluate the sufficiency of a belated claim of misadvice before granting a hearing. In so doing, the court should examine the transcripts of the plea colloquy and sentencing hearing, as we have done in the present matters, to determine if either transcript provides support for an after-the-fact assertion that counsel failed to provide advice affirmatively sought by a client as to the immigration consequences of entering into a specific guilty plea, sufficient to justify an evidentiary hearing on the PCR claim.

[Gaitan, supra, 209 N.J. at 381.]

Applying the current law to the record before us, we conclude that this matter must be remanded to the trial court for an evidentiary hearing. The record contains defendant's certification, which explains that

I was told that deportation would not be mandatory. I was told that as long as I complied with all the terms and conditions set forth by the [drug court] I would be able to avoid deportation.

This, however, turned out not to be true. Being admitted into drug court did not prevent immigration from instituting deportation proceedings against me. Had I known that getting into drug court would not prevent my deportation I would never have taken the plea. Instead, I would have gone to trial on the charges I was facing.

This certification is at least somewhat supported by additional facts in the record. At the plea hearing, defendant's counsel clearly expressed the opinion that defendant had a chance to avoid deportation if he accepted the State's proposed plea agreement and was admitted into drug court.

As the State concedes that defense counsel's statements regarding the immigration consequences of a guilty plea were objectively deficient,2 we hold that defendant has satisfied the first prong of his prima facie case.

The second prong of defendant's claim of ineffective assistance of counsel warrants more consideration. The PCR judge determined that, notwithstanding defense counsel's incorrect advice, defendant was not "prejudiced" because the plea judge made him fully aware of the possibility of deportation even if he were admitted to drug court. Although the plea judge did indeed caution defendant about the continuing possibility of deportation, she qualified that possibility, stating that deportation could still occur "if [defendant does not] follow the rules in drug court . . . ." At no point during the plea proceedings was defendant ever advised that a guilty plea would necessarily result in his deportation. Thus, the objectively-deficient representation was left uncured at the time defendant entered into the plea agreement.

At this stage in the proceedings, we presume the truth of defendant's alleged facts, so long as they are supported with affidavits or certifications based on the personal knowledge of the affiant. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999), certif. denied, 162 N.J. 199 (2000). Here, defendant's certification alleges that he relied on his attorney's explanation of the deportation implications when deciding to enter into the plea agreement. He also asserts that but for his attorney's incorrect advice, he would have rejected the offered plea agreement and proceeded to trial. These allegations are supported by the record, and are sufficient to satisfy the second prong of defendant's prima facie case.

Because defendant established a prima facie case for ineffective assistance of counsel, we conclude that the PCR court mistakenly exercised its discretion in failing to hold an evidentiary hearing to determine the merits of defendant's petition. Importantly, we only conclude that an evidentiary hearing is necessary to illuminate the merits of defendant's petition for PCR; we express no opinion regarding the outcome of such a hearing.

Reversed and remanded for further proceedings. We do not retain jurisdiction.

1 State v. Nu ez-Vald z, 200 N.J. 129 (2009).

2 The State's brief suggests that the statements by defendant's attorney were not deficient, because "[based on] an evaluation of this entire case and the reality of our criminal practice in Bergen County, [defense counsel's] statements on the record during the plea colloquy were not untrue." However, the assistant prosecutor conceded at oral argument before the PCR judge that the statements were inaccurate: "And should he have been told he was absolutely going to get deported? Yes."