                        NOT FOR PUBLICATION WITHOUT THE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-2546-17T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

NANCY NUNEZ,

     Defendant-Appellant.
_________________________________

              Submitted August 21, 2018 – Decided August 27, 2018

              Before Judges Messano and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Accusation No.
              98-10-1280 and Indictment No. 99-02-0148.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Rochelle Watson, Assistant
              Deputy Public Defender, of counsel and on the
              briefs).

              Michael A. Monahan, Acting Union County
              Prosecutor, attorney for respondent (Milton S.
              Leibowitz,     Special     Deputy     Attorney
              General/Acting   Assistant    Prosecutor,   of
              counsel and on the brief).

PER CURIAM
     On October 8, 1998, defendant Nancy Nunez pled guilty to a

one-count accusation charging her with third-degree distribution

of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1).

On March 29, 1999, defendant pled guilty to both counts of Union

County Indictment No. 99-02-0148, charging her with third-degree

possession of CDS, N.J.S.A. 2C:35-10(a)(1), and fourth-degree

resisting arrest, N.J.S.A. 2C:29-2(a).      On the same day, the court

sentenced defendant, a legal permanent resident of the United

States at the time, on her guilty plea to the indictment to a

four-year term of probation, a specific condition of which was

enrollment in and successful completion of Drug Court.        On April

23, 1999, the judge imposed the same sentence to run concurrently

on the guilty plea to the accusation.

     Nearly twenty years later, on January 12, 2017, after she was

arrested in Pennsylvania and was in the custody of United States

Immigration   and   Customs   Enforcement    (ICE)   facing   possible

deportation, defendant moved to vacate her guilty pleas pursuant

to State v. Slater, 198 N.J. 145 (2009).1      In addition, as to her

guilty plea to the accusation, defendant argued that the court



1
  Defense counsel explained in her motion brief that defendant,
born in Cuba, did not face deportation to that nation. However,
defendant would lose her legal status and the benefits that
afforded her and would remain "deportable if at any future time
the United States beg[an] deporting people to Cuba."

                                  2                            A-2546-17T3
failed to comply with Rule 3:9-2.            See ibid. (providing, among

other things, that the court "shall not accept [a guilty] plea

without first questioning the defendant personally . . . and

determining . . . that the plea is made voluntarily . . . and with

an understanding of the nature of the charge and the consequences

of the plea").

       In an oral decision that followed argument, the motion judge,

who    was   not    the   plea   or   sentencing   judge,   concluded      that

defendant's guilty plea to the accusation was "constitutionally

defective."        Specifically, defendant was amongst a group of co-

defendants who the plea judge addressed en masse, not personally,

and the judge failed to advise defendant of the full panoply of

rights   she   was    waiving    by   pleading   guilty.    However,     after

considering the four factors outlined by the Court in Slater, 198

N.J. at 157-58, the judge denied defendant's motion to withdraw

her guilty pleas to the indictment. The judge entered a conforming

order, and this appeal followed.

       We listed the appeal originally on our Excessive Sentence

Oral   Argument     (ESOA)   calendar.      However,   shortly   before     the

scheduled argument date, defense counsel supplied us with a three-

page brief outlining an argument she intended to make, i.e., that

defendant did not enter a knowing, voluntary and intelligent guilty

plea to the indictment "because she was not advised that it was

                                        3                              A-2546-17T3
certain to lead to her deportation."       Counsel hastened to add that

neither the Slater paradigm nor "the ineffective-assistance-of-

counsel test in     Strickland v. Washington, 466 U.S. 668, 687

(1984)," applied to the claim.       Given the nature of the argument,

we transferred the appeal to the plenary calendar and ordered the

parties to brief the issue.     They have.

     Defendant raises a single point, that "because she was not

advised that the guilty plea to third-degree drug possession was

certain to lead to her deportation, [she] was denied due process

and the plea must be vacated."       We disagree and affirm.

     Initially, we dispense with the State's contention that we

should not consider the argument because defendant never raised

the issue before the trial court.         State v. Witt, 223 N.J. 409,

419 (2015).   Although it was not defendant's primary argument, the

letter brief submitted to the motion judge asserted that defendant

would not have pled guilty to the indictment had she known of the

"immigration consequences" of her guilty pleas.

     When defendant entered her guilty pleas in 1998, the state

of our jurisprudence was clear and unequivocal.         A defendant need

know only of the penal consequences of her guilty plea, not the

collateral    consequences   "such   as   loss   of   public   or   private

employment, effect on immigration status, voting rights, possible

auto license suspension, possible dishonorable discharge from the

                                     4                              A-2546-17T3
military, or anything else."   State v. Heitzman, 209 N.J. Super.

617, 622 (App. Div. 1986) (emphasis added) (citation omitted),

aff'd o.b., 107 N.J. 603, 604 (1987); see also State v. Chung, 210

N.J. Super. 427, 433 (App. Div. 1986) ("[I]t is not the present

responsibility of a New Jersey judge to advise a defendant of

federal deportation consequences at the time of the taking of the

guilty plea.").

     In State v. Garcia, 320 N.J. Super. 332 (App. Div. 1999), we

held that ambiguity surrounding the defendant's answer to question

#17 on the then-current plea form compelled an evidentiary hearing

on his petition for post-conviction relief (PCR).     Id. at 336,

340-41.    Based on possible misinformation about the immigration

consequences of his guilty plea, we concluded the defendant had

presented a prima facie case of ineffective assistance of counsel.

Id. at 341.

     Here, defendant's answer to question #17 on the plea form —

"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?"

— was "Yes." Defendant cites to statements in her motion counsel's

brief alleging there was no discussion of this with plea counsel.

However, the record contains no such certification from defendant

herself.   Defendant cites to the transcript of her guilty plea,

asserting it demonstrates insufficient inquiry by plea counsel or

                                5                          A-2546-17T3
the judge about her understanding of the immigration consequences

of   her    pleas.       However,    the       transcript   reveals     the     judge

specifically asked defendant if the answers on the plea form were

her answers, and if they were accurate.

      In any event, defendant does not argue that plea counsel

provided     ineffective       assistance.       Instead,     she   contends      that

despite the state of our jurisprudence at the time of her guilty

pleas, the judge had the obligation to explain affirmatively that

deportation was "virtually mandatory" as a result.                      Padilla v.

Kentucky, 559 U.S. 356, 359 (2010).

      We acknowledge that in State v. Nuñez-Valdéz, 200 N.J. 129

(2009),      our     Supreme     Court     rejected     the     penal-collateral

consequence dichotomy and recognized that defense counsel provided

ineffective assistance if he misinformed the defendant regarding

the immigration consequences of a guilty plea.                      Id. at 138-41.

The Court ordered further revision to question #17 on the plea

form.      Id. at 144.

      The majority of the Padilla Court expanded defense counsel's

obligation, holding an attorney must advise a client-defendant

whenever a plea places him at risk of deportation.                     559 U.S. at

373-74.      However, in State v. Gaitan, our Supreme Court held

Padilla did not apply retroactively, and that prior to Padilla,

plea counsel did not have an affirmative obligation to advise

                                           6                                  A-2546-17T3
clients of "the mandatory deportation consequences of certain

convictions."    209 N.J. 339, 375 (2012).

     Defendant's essential argument is that these cases recognize

a defendant's guilty plea does not comport with due process unless

it is entered knowingly and voluntarily and with full knowledge

of its immigration consequences.            She contends that the judge has

an obligation independent of defense counsel to assure compliance

with Rule 3:9-2.

     We have said that the judge's obligation to ensure a guilty

plea is entered voluntarily and "with an understanding of the

nature of the charge and the consequences of the plea," Rule 3:9-

2, "is related to, but distinct from the attorney's obligation to

render effective assistance."           State v. Blake, 444 N.J. Super.

285, 297 (App. Div. 2016) (citing State v. Jamgochian, 363 N.J.

Super. 220, 227 (App. Div. 2003)).             In rejecting the defendant's

PCR petition in Blake, a post-Padilla case, we recognized the

judge adhered to the plea form adopted by the Court, ibid.,

although we specifically did not consider whether the judge was

required to do more.        Id. at 298 n.4.

     In this case, defendant cites no authority supporting the

proposition     that   in    1998   a       trial   judge   was   required    to

affirmatively advise a defendant of the immigration consequences

of her guilty plea beyond that required by the plea form, or that

                                        7                              A-2546-17T3
the failure to do so rendered the guilty plea non-compliant with

Rule 3:9-2 and violated defendant's due process rights. We decline

the opportunity to hold so in the first instance.

     Affirmed.




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