STATE OF NEW JERSEY v. HUGO AGUILAR

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3440-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

HUGO AGUILAR, a/k/a
HUGO AGUILAR URREA,

          Defendant-Appellant.


                   Submitted September 16, 2020 – Decided September 28, 2020

                   Before Judges Alvarez and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Indictment No. 16-03-0245.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (John V. Molitor, Designated Counsel, on the
                   brief).

                   Fredric M. Knapp, Morris County Prosecutor, attorney
                   for respondent (Paula Jordao, Assistant Prosecutor, on
                   the brief).

PER CURIAM
      A Law Division judge sentenced defendant Hugo Aguilar, pursuant to a

plea agreement, on September 22, 2017, to time served of 1332 days

incarceration plus appropriate mandatory consequences, including fines and

penalties.   Defendant pled guilty to one offense charged in a multi-count

indictment, third-degree child endangerment by a non-caretaker,  N.J.S.A.

2C:24-4(a)(1). At the time, an immigration detainer had already been lodged

against him. Defendant did not file a direct appeal, only an unsuccessful petition

for post-conviction relief (PCR) alleging, among other things, ineffective

assistance of counsel. He asserted that neither of his attorneys nor the court

explained to him that deportation was mandatory because the nature of the crime

to which he entered a guilty plea was considered a "felony" under immigration

law. Defendant now appeals the denial of his petition, and we vacate the order

and remand for the judge to conduct a plenary hearing. We conclude defendant

established a prima facie case warranting such relief.

      When defendant entered the plea on May 30, 2017, it was undisputed that

he faced deportation consequences. He was represented by counsel not just in

the criminal matter but had retained an immigration attorney as well. The

immigration attorney was not present during any of defendant's court

appearances in the criminal case. Defendant's plea forms were in the Spanish


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language, and discuss the immigration consequences of the entry of a guilty plea

in a more limited fashion than the English language plea form.           Clearly,

however, from the fact he retained immigration counsel, defendant was well

aware of potential deportation consequences.

      No one explained to defendant that, given the nature of the charging

documents, deportation was a certainty, not just a potential consequence. When

the judge reviewed the issue with defendant, he spoke only of the "potential."

He confirmed that defendant had the opportunity to speak to an immigration

lawyer. When asked, defendant said he anticipated a final meeting with that

attorney after the entry of a plea. The judge reiterated that as a result of

defendant's guilty plea, "there is a strong likelihood" that he would be deported.

      On appeal, defendant raises the following for our consideration:

      I.    THIS COURT SHOULD REVERSE THE LAW
            DIVISION'S DECISION TO DENY DEFENDANT'S
            PETITION FOR POST-CONVICTION RELIEF
            WITHOUT     AN    EVIDENTIARY   HEARING
            BECAUSE DEFENDANT ESTABLISHED A PRIMA
            FACIE CASE THAT NEITHER OF HIS
            ATTORNEYS NOR THE COURT ADVISED
            DEFENDANT      HE    WAS   SUBJECT   TO
            MANDATORY DEPORTATION AS A RESULT OF
            HIS GUILTY PLEA.

      II.   THIS COURT SHOULD REVERSE THE LAW
            DIVISION'S DECISION TO DENY DEFENDANT'S


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            PETITION FOR POST-CONVICTION RELIEF
            WITHOUT    AN  EVIDENTIARY   HEARING
            BECAUSE DEFENDANT ESTABLISHED A PRIMA
            FACIE CASE HIS PLEA COUNSEL DID NOT
            INVESTIGATE POTENTIAL WITNESSES AND
            DEFENSES.
      The context of our decision is State v. Gaitan,  209 N.J. 339 (2012). There,

the Court "made [it] clear" that attorneys "have specific duties as to how they

must advise pleading noncitizen criminal defendants, depending on the certainty

of immigration consequences flowing from the plea." Id. at 380. The Court

went on to state that since an attorney is required to advise a client "when

removal is mandatory," the effect on the Strickland v. Washington standard

"represents a qualitatively new rule of expected attorney performance[.]" Ibid.

The Court ruled that from that point forward,

            counsel's failure to point out to a noncitizen client that
            he or she is pleading to a mandatorily removable
            offense will be viewed as deficient performance of
            counsel; affirmative advice must be conveyed as part of
            the counseling provided when a client enters a guilty
            plea to a state offense that equates to an aggravated
            felony [under federal law], triggering eligibility for
            mandated removal.

            Ibid.

      The Court stressed that transcripts of plea colloquies must reflect a

defendant's clear understanding of the consequence of his guilty plea. Id. at 381.



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"[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 . . . a prima facie ineffective assistance of

counsel claim entitling defendant to an evidentiary hearing in a PCR

proceeding." Ibid.

      A defendant is only entitled to an evidentiary hearing where he establishes

a prima facie case in support of PCR. See Rule 3:22-10(b). Viewing the facts

in the light most favorable to defendant on this record, as we must, if he was

incorrectly advised regarding the legal effect of his plea on his immigration

status, that may warrant post-conviction relief. See State v. Marshall,  148 N.J.
 89, 158 (1997); State v. Preciose,  129 N.J. 451, 462-63 (1992). An evidentiary

hearing is therefore necessary to develop facts important to the ultimate

decision. State v. Porter,  216 N.J. 343, 355 (2013). Thus, we vacate the order

and remand for that purpose.

      Reversed and remanded. We do not retain jurisdiction.




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