                    NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-0849-14T2



STATE OF NEW JERSEY,
                                            APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                August 16, 2016

v.                                            APPELLATE DIVISION

MARIANO ANTUNA,

     Defendant-Appellant.
___________________________________

           Argued February 1, 2016 – Decided August 16, 2016

           Before Judges Lihotz, Nugent and Higbee.

           On appeal from Superior Court of New Jersey,
           Law Division, Camden County, Accusation No.
           00-02-0541.

           Justin T. Loughry argued the cause for
           appellant   (Loughry   and    Lindsay, LLC,
           attorneys; Mr. Loughry, on the brief).

           Jason Magid,     Assistant Prosecutor, argued
           the   cause     for    respondent  (Mary   Eva
           Colalillo,      Camden    County   Prosecutor,
           attorney; Mr.    Magid, of counsel and on the
           brief).

     The opinion of the court was delivered by

HIGBEE, J.A.D.

     Defendant Mariano Antuna appeals from an August 4, 2014

order   denying   his   petition   for   post-conviction   relief      (PCR).
Defendant argues he received ineffective assistance of counsel

because    his    trial    counsel   failed     to   properly      advise     him    of

potential immigration consequences resulting from his conviction

following     a   guilty     plea.        Alternatively,         defendant     argues

counsel's failure to read to him or have him complete the plea

form, resulted in ineffective assistance of counsel.                        We agree

with the latter contention and reverse.

      Defendant     was    charged   in    Accusation      No.    00-02-0541       with

third-degree      possession     with      intent     to     distribute      heroin,

N.J.S.A.     2C:35-5(a)(1)     and   N.J.S.A.       2C:35-5(b)(3).        In    2000,

defendant executed the written plea and waiver of indictment

forms, and pled guilty to the Accusation.                  Question seventeen of

the   plea    form,   which    was   exclusively        in    English,       was    not

answered.      That question reads:           "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? [YES] [NO] [N/A]."

      It is undisputed that defendant is a Cuban native who could

not understand English.         With the aid of a Spanish interpreter,

defendant testified he signed the negotiated plea agreement as

completed by his attorney without actually reading the questions

to him.      Defendant further testified his attorney did not review

question      seventeen      with    him       or    advise       of   immigration

consequences resulting from his guilty plea.                      During the plea




                                          2                                  A-0849-14T2
colloquy,    the    trial      judge    did       not   inquire    whether   defendant

could read or understand English.                       Further, the judge did not

remark that question seventeen was not answered,                          nor did he

advise   defendant        he    could    be       deported    as   a   result   of    his

conviction     or        ask    whether       counsel        discussed    immigration

consequences with him.1

     Defendant was thereafter sentenced to probation for three

years with fines and penalties.                    Pursuant to a 2002 order for

early    discharge        of     probation,          defendant's       probation      was

terminated.        In 2005, after applying for permanent residency

status, defendant was subjected to removal proceedings by United

States Immigration and Customs Enforcement.                        In 2013, defendant

filed a verified petition for post-conviction relief and later

supplemented       his    pleadings      with       a    certification    and    brief.2

Following a plenary hearing, the PCR judge filed an order and

written opinion denying defendant's petition.

     The    PCR     judge      found    defendant's        testimony     credible     and

stated "[b]ecause the defendant did not speak or read English

1
    Defendant asserted he would have proceeded to trial had he
been aware of the risk of deportation to Cuba, associated with
his guilty plea.
2
    Although defendant filed his PCR petition approximately eight
years after becoming aware of his potential deportation, the PCR
judge found there was excusable neglect on behalf of defendant.
Whether defendant's PCR petition was time-barred pursuant to
Rule 3:22-12(a) is not before this court.



                                              3                                 A-0849-14T2
and did not indicate an answer to [q]uestion [seventeen] on the

plea form, specifically addressing immigration consequences, the

record before the [c]ourt supports the defendant's contention

that he was not provided information regarding the immigration

consequences."   The judge also found that "if [defendant's trial

counsel] provided any information, [he] would not have provided

misinformation as he is not experienced in immigration law and

would not have provided [immigration] advice."             The PCR judge

reasoned that because defendant "does not contend [his trial

counsel]   misinformed   him   about   the   immigration    consequences

. . . the representation was not deficient under Nuñez-Valdéz."3

      Defendant appeals from that order, raising the following

claims:

           I. THIS CASE CONSTITUTES AN INSTANCE OF
           ["]MIS-ADVICE", AND THEREFORE SHOULD COME
           WITHIN THE RULE OF NUÑEZ-VALDÉZ.

           II. EVEN IF NOT CONSIDERED A STRICT CASE OF
           MIS-ADVICE,    THIS   CASE    EXPOSES   THE
           USELESSNESS OF THE DISTINCTION BETWEEN MIS-
           ADVICE AND NON-ADVICE WHEN AN ATTORNEY, ON
           ACCOUNT OF LANGUAGE BARRIERS, CONTROLS THE
           PREPARATION AND EXECUTION OF THE PLEA FORM,
           AND FAILS TO ANSWER IN ANY MANNER ITEM 17.
           (NOT RAISED BELOW).

      We defer to a PCR court's factual findings if they "are

supported by sufficient credible evidence in the record."           State


3
    State v. Nuñez-Valdéz, 200 N.J. 129 (2009).



                                   4                             A-0849-14T2
v. Nash, 212 N.J. 518, 540 (2013).                     However, we review a PCR

court's legal conclusions de novo.                Id. at 540-41.

      To     succeed     on    a   claim    for    ineffective            assistance    of

counsel, "a defendant must show deficient performance by counsel

'so serious that counsel was not functioning as the counsel

guaranteed by the Sixth Amendment' and that the defendant was

prejudiced by the attorney's performance."                     State v. Gaitan, 209

N.J. 339, 349-50 (2012) (quoting Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693

(1984)), cert. denied, __ U.S. __, 133 S. Ct. 1454, 185 L. Ed.

2d 361 (2013).         Such a showing must be proven by a preponderance

of the evidence.        Id. at 350.

      An attorney's performance is reviewed for "reasonableness

under      prevailing         professional        norms."            Ibid.      (quoting

Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L.

Ed. 2d at 694).         Such an evaluation "must be 'viewed as of the

time of counsel's conduct.'"               Ibid. (quoting State v. Castagna,

187   N.J.    293,     314    (2006)).      For    a    showing      of    prejudice    in

connection with a guilty plea, "a defendant must prove 'that

there   is    a   reasonable        probability        that,    but       for   counsel's

errors, [he or she] would not have pled guilty and would have

insisted     on   going       to   trial.'"       Id.    at    351    (alteration        in

original) (quoting Nuñez-Valdéz, supra, 200 N.J. at 139).




                                           5                                     A-0849-14T2
    Defendant's plea was entered prior to the United States

Supreme Court's holding that requires "counsel must inform her

client whether his plea carries a risk of deportation."                       Padilla

v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486, 176 L.

Ed. 2d 284, 299 (2010).             The holding in Padilla is only applied

prospectively.       Chaidez v. United States, __ U.S. __, __, 133 S.

Ct. 1103, 1107, 185 L. Ed. 2d 149, 155 (2013); accord Gaitan,

supra, 209 N.J. at 373-74.              Because this matter arose prior to

Padilla,    the     legal     standard    controlling         the    advice    defense

counsel    is     obligated    to     provide    when      addressing      immigration

consequences of a conviction arising at the time a defendant

enters a guilty plea is found in Nuñez-Valdéz.                       Gaitain, supra,

209 N.J. at 373-74.

    In      Nuñez-Valdéz,        the     Supreme        Court       held    that    the

defendant's counsel's incorrect advice or misleading information

regarding       deportation     and    immigration         consequences      resulting

from a guilty plea to an aggravated felony was sufficient to

satisfy     the    performance        prong     of   the    Strickland      analysis.

Nuñez-Valdéz, supra, 200 N.J. at 140-42.                    Furthermore, based on

the defendant's testimony that had he received correct advice,

he would not have pled guilty, the Court found the prejudice

prong of Strickland was satisfied as well.                   Id. at 142-43.




                                          6                                   A-0849-14T2
      As discussed in Gaitan, the mandate that "defense attorneys

now     must    advise        their        clients       of      potential       immigration

consequences of pleading guilty" – was never established prior

to Padilla.          Gaitan, supra, 209 N.J. at 346.                    Specifically, the

Court emphasized "[t]hat was not our law, even under the Nuñez-

Valdéz holding."            Id. at 373.

      Here, limiting the analysis to the fact that defendant's

trial    counsel      did     not    affirmatively         provide      false     advice       or

misinformation          about        defendant's          immigration          consequences

resulting      from     his     guilty          plea    ignores     the    uncontroverted

evidence that counsel failed to convey to defendant the basic

information on deportation included on the plea form.                              Defendant

avers    he     was     completely          unaware       of      possible       deportation

consequences which the PCR judge found credible.

      These         facts     support           our     conclusion        that     counsel's

performance was deficient, despite a finding he did not provide

affirmative          misadvice,          thus     distinguishing          it     from      cases

governed       by    Nuñez-Valdéz,          supra,       200     N.J.     at     136      (where

defendant completed the plea form).                      The facts presented in this

matter are also distinguishable from our holdings in State v.

Blake, 444 N.J. Super. 285, 290 (App. Div. 2016), and State v.

Brewster, 429 N.J. Super. 387, 391 (App. Div. 2013), where we

affirmed       the    denial        of    PCR        petitions     when    the     defendant




                                                 7                                      A-0849-14T2
completed question seventeen in the plea form and no evidence of

false advice or affirmative misinformation about deportation was

presented.     In these cases, question seventeen was answered in

the plea form as required.

         It   is   well-settled     that   a   plea   must    be   entered   into

knowingly, intelligently, and voluntarily.                   State v. Johnson,

182 N.J. 232, 236 (2005).           Prior to executing a guilty plea, a

defendant must "complete, insofar as applicable, and sign the

appropriate form prescribed by the Administrative Director of

the     Courts."      R.   3:9-2.      Moreover,       "the    defendant     must

understand the nature of the charge and the consequences of the

plea"    including   "consequences     that    are    'direct'     or   'penal.'"

Johnson, supra, 182 N.J. at 236 (quoting State v. Howard, 110

N.J. 113, 122 (1988)).       See also State v. Bellamy, 178 N.J. 127,

139 (2003) ("We continue to stress the necessity of determining

whether a consequence is direct or penal when analyzing whether

a defendant must be informed of a particular consequence.").4




4
     Despite our previous recognition that "the [Supreme] Court
has indicated its inclination to depart from the traditional
differentiation between the penal consequences of a plea and its
civil collateral consequences [,]" State v. Maldon, 422 N.J.
Super. 475, 483 (App. Div. 2011), the Court has not yet
abandoned that analysis.




                                       8                                 A-0849-14T2
      The    possibility         of    deportation       is    "similar       to    a   penal

consequence that requires notice to defendant."5                            Nuñez-Valdéz,

supra, 200 N.J. at 138.                  See also Gaitan, supra, 209 N.J. at

372-73     ("Prior    to    Nuñez-Valdéz,           immigration        consequences          had

been categorized as collateral consequences of a guilty plea as

to   which    there        was    no     obligation       to     warn       defendants.").

Therefore, the plea form "should instruct defendants of their

right to seek legal advice regarding their immigration status."

Nuñez-Valdéz, 200 N.J. at 144.                       Such a requirement provides

"[c]larity     as     to    the       direct       and   penal    consequences          of     a

defendant's        guilty        plea"    and       "serves      to     ensure      that      a

defendant's 'expectations [are] reasonably grounded in the terms

of   the    plea     bargain.'"           Johnson,       supra,       182    N.J.   at       237

(alteration in original) (quoting State v. Marzolf, 79 N.J. 167,

183 (1979)).         A defendant should not be completely unaware or

uninformed "as to a material element of a plea negotiation,

which [he] has relied [on] in entering his plea."                           Id. at 236-37

(alteration in original) (quoting State v. Nichols, 71 N.J. 358,

361 (1976)).




5
    Although the decision in Nuñez-Valdéz did not turn on "the
traditional dichotomy" of "whether consequences of a plea are
penal or collateral," the Court nonetheless viewed deportation
as "similar to a penal consequence."   Nuñez-Valdéz, supra, 200
N.J. at 138.



                                               9                                    A-0849-14T2
      Here, defendant did not understand English while executing

the   plea     form   or   while      entering    his    guilty   plea    before   the

court.       Although      defendant's       attorney    did   not    provide    false

advice or affirmative misinformation to defendant about his risk

of    deportation,         we     nonetheless       conclude       the    attorney's

performance was deficient for failing to have defendant review

every question on the plea form.                   Had he done so, defendant

would have been on notice of the possibility of deportation,

something that a defendant must be at a minimum aware of, prior

to entering a knowing, intelligent, and voluntary plea.                         Without

being given the opportunity to review every question on the plea

form,     we     conclude         that       defendant     was       provided      with

representation        that      was    not    "reasonable[]       under   prevailing

professional norms."6            Gaitan, supra, 209 N.J. at 350 (quoting

Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L.

Ed. 2d at 694).

        Reversed and remanded.           We do not retain jurisdiction.




6
   We note defendant's argument that his attorney's performance
was deficient for failing to have defendant complete the plea
form was not raised at the trial level.   Therefore, our review
is governed by the plain error standard.      R. 2:10-2.  Plain
error is that which is "clearly capable of producing an unjust
result."    Ibid.   We conclude the error here, was "clearly
capable of producing an unjust result." Ibid.




                                             10                              A-0849-14T2
