                            RECORD IMPOUNDED

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION


                                        SUPERIOR COURT OF NEW JERSEY
                                        APPELLATE DIVISION
                                        DOCKET NO. A-0790-18T1

STATE OF NEW JERSEY,

         Plaintiff-Respondent,              APPROVED FOR PUBLICATION

v.                                                 February 10, 2020

                                                APPELLATE DIVISION
L.G.-M.,1

         Defendant-Appellant.


               Submitted January 14, 2020 – Decided February 10, 2020

               Before Judges Fisher, Gilson and Rose.

               On appeal from the Superior Court of New Jersey, Law
               Division, Monmouth County, Indictment No. 14-12-
               2073.

               Joseph E. Krakora, Public Defender, attorney for
               appellant (Monique D. Moyse, Designated Counsel, on
               the brief).

               Christopher J. Gramiccioni, Monmouth County
               Prosecutor, attorney for respondent (Mary Rebecca
               Juliano, Assistant Prosecutor, of counsel and on the
               brief).




1
     We use initials to protect the privacy of the victim and witnesses.
      The opinion of the court was delivered by

ROSE, J.A.D.

      Defendant L.G.-M. – a non-citizen of the United States – appeals a Law

Division order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing.       On appeal, defendant challenges his attorney's

effectiveness prior to trial, claiming counsel failed to advise him about the

immigration consequences of pretrial intervention (PTI). The issue is one of

first impression in New Jersey.

      Because we are persuaded defendant established a prima facie claim that

the advice he received from trial counsel fell below professional norms , and we

cannot conclude on the record before us whether defendant was prejudiced by

his attorney's alleged ineffectiveness, we reverse and remand for an evidentiary

hearing. See Strickland v. Washington, 466 U.S. 668, 700 (1984) (recognizing

a defendant seeking PCR must demonstrate: (1) the deficiency of his counsel's

performance; and (2) prejudice to his defense, to warrant a hearing); see also

State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-pronged

analysis in New Jersey).

      Where, as here, the trial court does not conduct an evidentiary hearing on

a PCR petition, we may review de novo the factual inferences the court has


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                                       2
drawn from the documentary record. State v. O'Donnell, 435 N.J. Super. 351,

373 (App. Div. 2014). We summarize that record as follows.

      Seeking asylum, defendant immigrated to the United States from

Guatemala in 2012, when he was twenty-two years old. Two years later, he was

charged in a Monmouth County indictment with third-degree endangering the

welfare of a child and fourth-degree criminal sexual contact; and issued two

summonses for lewdness, a disorderly persons offense. The charges stemmed

from defendant's encounter with three teenage girls while swimming in the ocean

in Belmar: defendant allegedly exposed his penis to the trio, then grabbed the

vagina and buttocks of one of the teens.

      Defendant rejected the State's plea offer and declined the opportunity to

apply for PTI notwithstanding his eligibility to do so without the Prosecutor's

consent. Before testimony began on the trial date, counsel told the judge he

"had many opportunities to discuss the PTI program with [his] client[,]" but

defendant did not wish to apply. Counsel said he "explained to [defendant] the

advantages and maybe the disadvantages of . . . PTI but [defendant] feels

confident that he wants to move forward with this trial at this moment." Absent

from the record is any indication that trial counsel advised defendant about the

immigration consequences of PTI.


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                                       3
     The trial judge then engaged defendant in the following colloquy:

           THE COURT: . . . [T]here is a procedure called [PTI].
           Okay? And it appears you are eligible for that since
           you have no prior record of any offense . . . . If you
           were to successfully complete . . . PTI . . . there would
           be a suspension of the prosecution and the charges
           could be dismissed against you. Now, you've talked to
           your lawyer about that?

           []DEFENDANT: Yes.

                 ....

           THE COURT: [PTI] . . . would not require as I
           understand it, there's no demand that you plead guilty
           so you could participate in PTI, and if you are
           successful, then the charge[s] would be dismissed. Do
           you understand that?

           []DEFENDANT: I do.

           THE COURT: All right. Do you wish to apply for PTI
           or do you wish to accept the prosecution's offer of . . .
           noncustodial probation?

           []DEFENDANT:        I decide to continue on with the
           matter [sic].

           THE COURT: You don't want to apply for PTI even
           though that could result in dismissal of the charge[s]; is
           that correct?

           []DEFENDANT: Correct.

     Defendant waived his right to a jury trial and was convicted as charged by

the trial judge, who sentenced him to an aggregate six-month jail term on May

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19, 2016.     In addition to fines and penalties, the judge imposed parole

supervision for life and registration as a sex offender under Megan's Law.

Defendant withdrew his direct appeal.        In December 2017, defendant was

detained in federal immigration custody. 2

      Four months later, defendant filed a PCR petition through counsel. 3 In

support of his petition, defendant provided his own certification, and

certifications of his PCR attorney and his current immigration attorney.

Defendant claimed he met with his first immigration attorney one month after

he was arrested. According to defendant, that attorney did not render "any

immigration advice but she referred [him] to trial counsel."            Defendant

elaborated:

                     As far as PTI, I thought that I would have to
              declare myself guilty. [Trial counsel] always said that
              I had a strong case. If he had explained to me that it
              was a weak case, I would have NOT taken the case to
              trial. There was a language barrier and although my
              sister did the translating, she was very young at the
              time.



2
  As of the filing of defendant's merits brief in April 2019, defendant remained
in federal custody awaiting removal.
3
  Before defendant was placed in federal custody, he had filed a PCR petition
that was dismissed without prejudice for his failure to attend "multiple" initial
conferences.
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                                        5
                  [Trial counsel] never told me anything about the
            immigration consequences. Based on what he told me,
            I thought we had a strong case and would win so I didn't
            think there would be any immigration problems. If he
            had said that my defense was implausible and that I
            would be deported if we lost then I would have taken
            any alternative disposition in order to avoid being
            deported back to Guatemala. A place that I fled from
            and sought asylum in the United States [sic].

      PCR counsel certified he contacted trial counsel, who confirmed he "did

not provide any immigration advice" to defendant. Trial counsel acknowledged

defendant's "family members translated for him" during their meetings. PCR

counsel also contacted defendant's first immigration attorney, who confirmed

"she did not provide any immigration advice" to defendant and "merely referred

him" to trial counsel. Defendant's present immigration counsel likewise swore

she spoke with defendant's first immigration attorney, who said she told

defendant "she did not handle criminal immigration cases, and that he needed to

hire a criminal defense attorney." Trial counsel was among the three names that

the first immigration attorney gave to defendant.

      Following oral argument, the PCR judge, who was not the trial judge,

issued a written decision, denying defendant's petition. Relevant here, the judge

determined the United States Supreme Court's seminal decision in Padilla v.




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                                       6
Kentucky,4 and its New Jersey progeny did not apply here because defendant

did not enter a guilty plea. The judge also determined defendant failed to

demonstrate prejudice under the second Strickland prong. Accordingly, the

judge declined to address whether counsel was ineffective under the first

Strickland prong. This appeal followed.

       On appeal, defendant limits his ineffective assistance of counsel claims to

two points for our consideration:

                                    POINT ONE

             [DEFENDANT] IS ENTITLED TO RELIEF ON HIS
             CLAIM THAT HIS ATTORNEY RENDERED
             INEFFECTIVE ASSISTANCE OF COUNSEL
             DURING PLEA NEGOTIATIONS.

                                    POINT TWO

             IN THE ALTERNATIVE, [DEFENDANT] IS
             ENTITLED TO AN EVIDENTIARY HEARING ON
             HIS CLAIM THAT HIS TRIAL ATTORNEY
             RENDERED INEFFECTIVE ASSISTANCE OF
             COUNSEL DURING PLEA NEGOTIATIONS.

       We find insufficient merit in the arguments defendant raises in point I to

warrant discussion in a written opinion beyond the following brief comments.

R. 2:11-3(e)(2).



4
    559 U.S. 356 (2010).
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                                        7
      For the first time on appeal, defendant contends trial counsel was "per se"

ineffective under United States v. Cronic, 466 U.S. 648, 659 (1984), "by failing

to inform him of the deportation consequences of rejecting PTI, such that he

proceeded to trial based on this misadvice, was convicted and incarcerated, and

is being held for imminent deportation." Because defendant failed to raise that

contention before the PCR judge, we have reviewed the judge's decision for

plain error, Rule 2:10-2; State v. Gore, 205 N.J. 363, 383 (2011), and conclude

trial counsel's alleged errors were not so severe as to "trigger[] a presumption of

prejudice . . . ." State v. Miller, 216 N.J. 40, 70 (2013) (observing "only an

extraordinary deprivation of the assistance of counsel triggers a presumption of

prejudice").

      Turning to defendant's point II, merely raising a claim for PCR does not

entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999). Rather, trial courts should grant evidentiary

hearings only if the defendant has presented a prima facie claim of ineffective

assistance of counsel under the Strickland two-pronged test, material issues of

disputed fact lie outside the record, resolution of the issues necessitate a hearing,

Rule 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013), and when "the

attorney's testimony may be required[,]" State v. Preciose, 129 N.J. 451, 462


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                                         8
(1992). We review a trial court's decision to grant or deny a defendant's request

for a hearing under an abuse of discretion standard. State v. Russo, 333 N.J.

Super. 119, 140 (App. Div. 2000). But, we review de novo the PCR court's

conclusions of law. State v. Nash, 212 N.J. 518, 541 (2013).

      It is now well-settled that a defense attorney "must tell a client when

removal is mandatory – when consequences are certain –" in order to provide

effective assistance of counsel. State v. Gaitan, 209 N.J. 339, 380 (2012); see

also Padilla, 559 U.S. at 369. Accordingly, "when counsel provides false or

affirmatively misleading advice about the deportation consequences of a guilty

plea, and the defendant demonstrates that he would not have pled guilty if he

had been provided with accurate information, an ineffective assistance of

counsel claim has been established." Gaitan, 209 N.J. at 351.

      Conversely, where "the law is not succinct and straightforward . . ., a

criminal defense attorney need do no more than advise a noncitizen client that

pending criminal charges may carry a risk of adverse immigration

consequences." Padilla, 559 U.S. at 369; see also Gaitan, 209 N.J. at 381

(holding that where deportation is not mandatory, "counsel must highlight for

noncitizen clients that entering a guilty plea will place them at risk of removal").

Failure by counsel to adhere to these requirements constitutes deficient


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                                         9
representation, satisfying the first prong of the Strickland/Fritz standard. See

Padilla, 559 U.S. at 369; Gaitan, 209 N.J. at 380.

      Our courts have not specifically considered whether Padilla and Gaitan

require defense counsel to advise their clients whether – and under what

circumstances – the successful completion of PTI would permit a defendant to

avoid immigration consequences. Under the Immigration and Nationality Act

(INA):

            The term "conviction" means, with respect to an alien,
            a formal judgment of guilt of the alien entered by a
            court or, if adjudication of guilt has been withheld,
            where – (i) a judge or jury has found the alien guilty or
            the alien has entered a plea of guilty or nolo contendere
            or has admitted sufficient facts to warrant a finding of
            guilt, and (ii) the judge has ordered some form of
            punishment, penalty, or restraint on the alien's liberty
            to be imposed.

            [8 U.S.C. § 1101(a)(48)(A) (emphasis added).]

      Accordingly, where a defendant has neither acknowledged guilt, nor

entered a guilty plea, successful completion of PTI would not constitute a

"conviction" under the INA. See Pinho v. Gonzales, 432 F.3d 193, 215-16 (3d

Cir. 2005) (holding a conviction vacated on ineffective assistance of counsel

grounds was not considered a "conviction" that would otherwise mandate

deportation under the INA because defendant was ultimately admitted into New


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                                      10
Jersey's PTI program without admitting guilt).        Conversely, the successful

completion of PTI, where a defendant has not pled guilty – but has

acknowledged guilt – could result in removal.

      Neither Padilla nor Gaitan expressly limits its holding to cases in which a

defendant enters a guilty plea, and we decline to narrowly construe their

application only to those dispositions. Instead, we interpret Padilla and Gaitan

to impose an obligation upon defense attorneys to advise their clients of the

potential immigration consequences of any criminal disposition whether that

disposition will result from a guilty plea, trial, or diversionary program.

      In addition to his own certified statements supporting his PCR petition,

defendant submitted the certifications of his present immigration counsel and

PCR counsel. Those sworn statements expound upon the trial record. For

example, trial counsel told the judge on the first day of trial: "I informed

[defendant] about the immigration consequences, in that I am not an immigration

attorney.   [Defendant] did inform me that he did speak to an immigration

attorney regarding the consequences of deportation." Defendant also told the

trial judge he had spoken with an immigration attorney.

      But, defendant's certification in support of his PCR petition explains he

was referring to the first immigration attorney who did not provide immigration


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advice about his criminal charges; instead she referred defendant to trial counsel.

Although the certifications of PCR counsel and defendant's present immigration

counsel contain hearsay statements about their conversations with trial counsel

and the first immigration attorney, they corroborate defendant's prima facie

claims.

      We conclude an evidentiary hearing was necessary to assess credibility

and further develop the facts underlying the advice rendered to defendant

concerning the immigration consequences of PTI. See Porter, 216 N.J. at 353.

Those conversations between defendant and his trial counsel and first

immigration attorney are not part of the record. R. 3:22-10(b). Accordingly,

defendant has set forth a prima facie showing of counsel's deficient performance

under the first Strickland prong. 466 U.S. at 687; see also Padilla, 599 U.S. at

374; Gaitan, 209 N.J. at 380.5

      Turning to the second prong of Strickland, we disagree with the PCR

judge that defendant was unable to demonstrate prejudice. Relevant here, the



5
  Trial counsel's purported use of defendant's minor sister as an interpreter
during their meetings raises further questions about counsel's effectiveness. As
we have long observed "[a] language barrier between counsel and client is
merely one circumstance probing the questions of whether the accused has been
adequately represented by counsel." State v. Perez, 100 N.J. Super. 427, 430
(App. Div. 1968).
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                                       12
PCR judge determined the record belied defendant's claim he was unaware of

the removal consequences of his conviction because the trial judge had informed

defendant he would likely be deported.        The judge also found defendant's

repeated assertions of innocence precluded PTI as a viable option.

      We have recognized the distinct roles of the trial judge and counsel,

concluding a "judge's statements may not be imputed to counsel. The judge is

obliged to ascertain that a plea is entered voluntarily . . . . That obligation 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). Indeed,

during the plea cutoff status conference, the trial judge correctly stated he coul d

not give defendant immigration advice. In any event, the judge only made

defendant aware of the potential immigration consequences if defendant were

convicted at trial; the judge did not discuss those consequences regarding the

successful completion of PTI. The judge told defendant: "if you are found

guilty of any of these charges . . . it may well and probably would, I would say

almost certainly would, although I'm not giving you advice on immigration, have

an effect on your status and I would expect would result in deportation."

      Obviously, we cannot speculate and conclusively say defendant would

have been accepted into the PTI program had he made a timely application. The


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                                        13
State repeatedly informed the trial court, defendant "certainly appears eligib le

to apply" to PTI based upon the degree of the charges. But on appeal, the State's

merits brief contains a footnote stating: "For the reasons discussed above, this

Office would not accept defendant into PTI." Those reasons included the nature

of the charges, the extent to which defendant may pose a danger to others, the

offenses were not "victimless," and the harm to society by abandoning

prosecution where, as here, the charges carry the Megan's Law consequences of

parole supervision for life and registration. Indeed, those factors bode against

defendant's admission into the PTI program but, because defendant never

applied for PTI, the summary statement contained in the State's footnote is not

a formal rejection of defendant's application.

      We acknowledge, as the PCR judge correctly observed, defendant

maintained his innocence throughout the proceedings, including his post -

conviction mental status evaluation, precluding the evaluator from "mak[ing] an

assessment as to what his motivation may have been in the instant offense."

Under Rule 3:28-5(b)(1),6 "[e]nrollment of defendants who maintain their



6
  Rule 3:28-5(b)(1), effective July 1, 2018, replaced former Rule 3:28, which
was in effect at the time defendant would have applied to PTI. The relevant
portion of the current Rule contains identical language to Guideline 4 of former
Rule 3:28.
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                                      14
innocence is to be permitted unless the defendant's attitude would render [PTI]

ineffective." Because defendant claims his "limited ability to speak English and

the absence of a translator" other than his minor sister when she was available,

prevented him from understanding his attorney's "advice about what PTI

actually was[,]" it is unclear from the record what advice trial counsel gave

defendant regarding PTI, and whether those discussions impacted defendant's

assertions of innocence.

      Importantly, although deciding whether to permit diversion to PTI "is a

quintessentially prosecutorial function[,]" State v. Wallace, 146 N.J. 576, 582

(1996), a prosecutor's decision is nonetheless subject to judicial review, see

State v. K.S., 220 N.J. 190, 200 (2015) (recognizing "to overturn a prosecutor's

decision to exclude a defendant from the program, the defendant must 'clearly

and convincingly' show that the decision was a 'patent and gross abuse of . . .

discretion.'"). We therefore decline to speculate whether defendant would have

been admitted into the PTI program.

      Because we conclude defendant has made a prima facie claim of

ineffective assistance of counsel, we remand for an evidentiary hearing to

determine whether defendant received adequate advice about PTI, his potential

acceptance into PTI, and how deportation consequences would be impacted if


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                                      15
he were accepted into PTI. Preciose, 129 N.J. at 462. If at the hearing, defendant

satisfies his claim that the advice given fell below professional norms, the

hearing should encompass, and the judge should determine, the probability of

defendant's admission into the PTI program and the probability of whether

admission would favorably impact the deportation consequences that would

follow. See Pinho, 432 F.3d at 215-16; 8 U.S.C. § 1101(a)(48)(A). Defendant

shall be permitted to supplement the record with any documentation that he

otherwise would have provided in an initial application that would bear upon his

acceptance into PTI. Defendant's conviction and sentence remain in force unless

and until defendant satisfies both prongs of the Strickland analysis. We express

no view on the merits of any of defendant's contentions, including his admission

into the PTI program.

      Reversed and remanded. We do not retain jurisdiction.




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