                                 NOT FOR PUBLICATION WITHOUT THE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-5176-17T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

MANUEL F. LOPEZ, a/k/a
MANUEL A. LOPEZ, and
MANUEL A. FALCON-LOPEZ,

     Defendant-Appellant.
______________________________

                    Submitted May 15, 2019 – Decided July 3, 2019

                    Before Judges Alvarez and Nugent.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 14-01-0087.

                    Andrew Robert Burroughs, attorney for appellant.

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Alanna M. Jereb, Assistant Prosecutor, on
                    the brief).

PER CURIAM
      Defendant appeals from an order that denied his petition for post-

conviction relief (PCR). He argues he did not enter his guilty plea to third-

degree bail jumping knowingly, intelligently, and voluntarily. He claims his

plea was coerced, he was not informed of the mandatory deportation

consequences of his plea, and he was denied counsel of his choice. He also

contends the assistant public defender who represented him at the plea

proceeding was ineffective for, among other reasons, letting these improprieties

occur. We agree and reverse.

                                       I.

                                      A.

      The record on appeal discloses the following facts.        Following his

negotiated guilty plea to third-degree unlawful possession of a weapon, based

on a recommended sentence of imprisonment for three years with three years of

parole ineligibility, defendant failed to appear for his June 8, 2011 sentencing

proceeding. Two and one-half years later, in January 2014, a Hudson County

grand jury charged defendant in a single-count indictment with third-degree bail

jumping, N.J.S.A. 2C:29-7. The parties do not dispute that bail jumping is an

offense that results in mandatory deportation under the United States

Immigration Code, 8 U.S.C.S. §1101(a)(43)(T). Defendant appeared for a status


                                                                        A-5176-17T4
                                       2
conference on Monday, March 10, 2014. The events of that proceeding are the

focus of this appeal.

      When the status conference commenced, the Hudson County assistant

prosecutor informed the judge that defendant was serving a sentence of three

years with three years of parole ineligibility "on a weapon offense out of Bergen

County." The prosecutor explained that defendant had also pled guilty in 2011

to a weapons offense with a recommended sentence of three years with three

years of parole ineligibility, but defendant did not appear for sentencing on that

offense. After the assistant prosecutor provided this information to the court,

the following colloquy ensued:

            [Prosecutor:]      [T]he State filed bail jumping. I just
            relayed a global offer to [defendant], which is a three
            consecutive to the three with three.

            [The Court:]       Three on the bail jumping and three
            on the gun?

            [Prosecutor:]      Well, he already - - three on the bail
            jumping and he was already looking at – he pled to three
            with three on the 2010 indictment.

            [The Court:]       Okay.

            [Prosecutor:]       If the defendant is not interested in
            taking that offer, the State is going to move to sentence
            [him] on the next status date. You took the plea.



                                                                          A-5176-17T4
                                        3
      After confirming the State's representations with defense counsel, the

court continued:

            [The Court:]       Well, then he's got today and today
            only to get a concurrent. If he doesn't take the offer
            today, it's consecutive.

      After additional discussion between defense counsel and the court,

defendant entered the discussion.

            [Defendant:]    So it's going to be – it's going to be
            concurrent? Everything is going to be concurrent?

            [Defense Counsel:]      Yes.

            [Defendant:]       Everything is going to be concurrent
            for the three years?

            [Defense Counsel:]      Yes. Okay. We'll do it now.

            [The Court:]      Thank you.

      Following a recess, a new prosecutor appeared for the State. Asked by

the court for the State's recommendation, the following colloquy occurred:

            [Prosecutor:]      The defendant is going to plead
            guilty on the Indictment 87-01-2014, to the sole count,
            bail jumping in the third degree.         The State's
            recommendation is three years consecutive to his open
            sentence.

            [Defense Counsel:]     That's our understanding,
            Judge, and, now, I understand for my client's sake, I
            want to make this very, very clear, that the Court has
            recommended that if [defendant] enters his plea to bail

                                                                       A-5176-17T4
                                      4
    jumping today, that when he comes back to be
    sentenced on the - - I believe it's the weapons charge
    that he was to have been sentenced on, on June 8th
    2011, that the Court will sentence him to that sentence,
    which is a three with three, sentence to a flat three on
    the bail jumping charge concurrent with the flat three
    and that those two sentences will be concurrent to his
    present sentence, which is a three with three in Bergen
    County.

           And I have explained to [defendant] that what
    that may leave him with is two overlapping sentences
    of three with three and he may end up doing some more
    time for (indiscernible) - - But I - - without seeing a
    presentence report in front of me (indiscernible) and so
    forth, I can't - - I can't assess that accurately. But I - -
    that's our understanding.

    [The Court:]        Correct.

EXAMINATION OF [DEFENDANT] BY THE COURT:

         Q.   [Defendant]              did   you   hear    that
    recommendation?

    A.    Yes.

          Q.     Did [defense counsel] explain it to you?

    A.     He explained something there but why is it that
    the time that I've already done in prison isn’t there also
    concurrent?

          Q.     Because you're serving a sentence.

    A.    But I'm not hanging out. I'm in prison there.

          Q.     You can go to trial, if you want.

                                                                   A-5176-17T4
                                   5
A.   But they’re not giving me the option to be able to
come tomorrow to hire a private attorney.

      Q.     Sure we will. I'll tell you what, no plea.
Go to trial. Get you the consecutive term. Take him
away.

A.    I'm not that guilty.

      Q.    Good.

[The Court:]     Okay. Let's put - - he's arraigned?
Today was the arraignment date?

[Court Clerk:]      Today was the status date, Judge.

[The Court:]        He's been arraigned already?

[Court Clerk:]      He's been arraigned.

[The Court:]        Put him down for a plea cutoff on
Monday.

[Court Clerk:]      Monday?

[The Court:]        We'll set a trial date.

[Court Clerk:]      Yes. He's - -

[The Court:]      We'll just keep him there for a week.
Actually we can do plea cutoff – - [to defense counsel],
you're here on Thursday?

[Defense Counsel:]        The answer is - -

[Defendant:]      I have a private attorney. My private
attorney will come.


                                                           A-5176-17T4
                             6
             [The Court:]       Fine. Have him here Thursday.

             [Court Clerk:]     Do you [want] him remanded to the
             county jail?

             [The Court:] Remand him to the county until Thursday.

     Following a discussion concerning the assistant public defender's

scheduling conflicts, and his inability to appear on Thursday, the court

continued:

             [The Court:]     No. I'll tell you what we'll do. Let's
             produce him - - no. Do the plea cutoff papers now.
             Discovery is complete?

             [Prosecutor:]     Judge, I'm not aware.         I'm just
             standing in. I would imagine so.

             [Defense Counsel:]       Judge, I - - I really have not
             had a great deal of time to - -

             [The Court to Defense Counsel:]       It's a bail jumping
             charge. It's not real complicated. He wants a trial, we'll
             give him a trial. I mean, he's turned down a concurrent
             offer. There's nothing else we can do. He had a court
             date. He didn't show up. That's called bail jumping.
             Okay? The State has ruled - - I'm willing to run it
             concurrent.

                   He's not happy with it, so let him go to trial. If
             he goes to trial, it will be a five to ten consecutive.
             Okay? That's what he wants, that's what he gets. Bring
             him in the back. Do the plea cutoff papers today. I'm
             done with him.


                                                                          A-5176-17T4
                                         7
            [Defense Counsel:]       Hold on. Hold on.

            [The Court:]       I'm not going to hold on. Bring him
            in the back.

            [Defense Counsel:]       But he's not saying that.

            [The Court:]       I'm saying it. Bring him in the back.

            [Defense counsel:]       Okay.

      Following a further recess, defense counsel informed the court defendant

"had some difficulty understanding how these various sentences work together

and has been very paranoid about the issue of concurrency." Counsel added, "I

think he's straight now and he wants to proceed with the plea."

      The court asked defendant if he had "heard the recommendation" and

defendant replied that he had. The court asked if defense counsel had explained

it. Defendant answered "yes," and the court asked if he understood it. Defendant

replied, "yes."

      After defendant acknowledged that he wanted to plead guilty, defense

counsel asked defendant: "Is it true that on June 8th, 2011, you were required to

appear before [the judge] to be sentenced on an unrelated case and that you failed

to appear?" Defendant acknowledged that he had failed to appear. Defendant

further acknowledged that on the "previous case, [he] had pled guilty to third-

degree unlawful possession of a weapon."

                                                                          A-5176-17T4
                                        8
      The court informed defendant the maximum penalty for the third-degree

bail jumping offense was five years. The court also explained the fines and

assessments. The court then stated: "You know I'm giving you a three flat

concurrent to the previous charge, correct." Defendant responded affirmatively.

      During the court's colloquy with defendant, the court asked defendant to

look at the plea forms his attorney "is showing you, the green sheets." The court

had defendant acknowledge his attorney "went over all those questions and

explained all the material to [him]." Defendant acknowledged that he had

answered the questions honestly. The court asked additional questions to assure

defendant was voluntarily pleading guilty. The court also had defense counsel

acknowledge his satisfaction that defendant was pleading guilty voluntarily.

The court determined defendant had freely and voluntarily entered into the plea.

      The parties have not provided the sentencing transcript as part of the

appellate record. They have provided the New Jersey Judiciary Plea Form. The

questions and answers include the following:

            17.   a.    Are you a citizen of the United States?
                                          [Yes]        [No]

                   If you answered "No" to this question, you must
            answer questions 17b-17f. If you have answered "Yes"
            to this question, proceed to Question 18.



                                                                         A-5176-17T4
                                       9
                  b.    Do you understand that if you are not a
           citizen of the United States, this guilty plea may result
           in your removal from the United States and/or stop you
           from being able to legally enter or re-enter the United
           States?                                 [Yes]     [No]

                 c.    Do you understand that you have the right
           to seek individualized advice from an attorney about
           the effect your guilty plea will have on your
           immigration status?                 [Yes]      [No]

                 d.    Have you discussed with an attorney the
           potential immigration consequences of your plea? If
           the answer is "No," proceed to question 17e. If the
           answer is "Yes," proceed to question 17f.
                                               [Yes]     [No]

                 e.    Would you like the opportunity to do so?
                                              [Yes]        [No]

                 f.   Having been advised of the possible immigration
           consequences and of your right to seek individualized legal advice
           on your immigration consequences, do you still with to plead
           guilty?
                                               [Yes]      [No]

     During the plea proceeding, no one discussed defendant's citizenship, the

immigration consequences of his plea, or his apparent inconsistent answers to

question seventeen's subparts (d) and (e). No one noted that defendant had

circled "Yes" to the question that asked if he would like the opportunity to

discuss the potential immigration consequences of his plea with an attorney.

Nor did anyone attempt to determine if defendant could read English.


                                                                       A-5176-17T4
                                     10
      According to the Judgment of Conviction (JOC), on April 24, 2014, the

Judge sentenced defendant on the bail jumping offense to imprisonment for three

years. The JOC states that this sentence is "concurrent with Bergen County 11-

02-234-I and consecutive to 10-04-747-I."         No one has explained the

inconsistency between what the plea judge told defendant about concurrent

sentences and the consecutive sentence documented on the JOC.

                                      B.

      In December 2017, defendant filed a PCR petition. He explained that he

was a native of the Dominican Republic, not a United States citizen, and his

attorney never inquired about his immigration status or advised him about the

immigration consequences of pleading guilty to the bail jumping charge.

Defendant later learned that bail jumping is considered an aggravated felony

under federal law, and a conviction subjects a defendant to mandatory

deportation. Defendant claimed that had he known this, he would not have pled

guilty.

      Defendant also alleged that he met with his public defender once, the day

of the plea hearing. With the exception of their discussions that day, defendant

had no communications with his attorney. He explained that his family, out of

concern about the "quality of [his] public defender," hired another attorney. He


                                                                        A-5176-17T4
                                      11
alleged that though he asked the trial judge to adjourn the hearing so that his

private attorney could appear, his request was ignored and his public defender

made no effort to argue a motion for an adjournment and substitution of counsel.

      The judge who heard defendant's PCR petition – not the judge before

whom defendant entered his plea – denied it.        The PCR judge concluded

defendant was not coerced into pleading guilty, was not deprived of the right to

counsel of his choice, and would not have declined to plead guilty had the

immigration consequences of his plea been explained to him. The judge filed a

memorializing order from which defendant appealed.

                                      II.

                                      A.

      On appeal, defendant argues:

            POINT I: THE PCR COURT ERRED WHEN IT
            FOUND       PETITIONER      KNOWINGLY,
            INTELLIGENTLY,     AND     VOLUNTARILY
            ENTERED A GUILTY PLEA TO BAIL JUMPING.

            POINT II: THE PCR COURT WAS WRONG WHEN
            IT HELD PETITIONER WAS NOT DENIED HIS
            RIGHT TO HIS COUNSEL OF CHOICE.

            POINT III: THE PCR COURT ERRED WHEN IT
            HELD PETITIONER HAD RECEIVED EFFECTIVE
            ASSISTANCE OF COUNSEL.



                                                                        A-5176-17T4
                                      12
                  (1) Defense counsel failed to inform
                  Petitioner that he faced mandatory
                  deportation by entering a guilty plea to
                  third degree bail jumping.

                  (2) Defense counsel failed to recuse
                  himself when Petitioner indicated he had
                  retained private counsel to represent him
                  on the bail jumping charge.

                  (3) Defense counsel failed to ask the trial
                  judge to inquire whether Petitioner wished
                  to exercise his right to counsel of choice.

                  (4) Trial counsel failed to object when the
                  trial judge effectively coerced Petitioner to
                  waive his right to counsel of choice and
                  enter a guilty plea.

                  (5) Defense counsel's cumulative errors
                  denied Petitioner his right to effective
                  assistance of counsel as guaranteed by the
                  Sixth Amendment.

            POINT IV: AS THERE ARE GENUINE ISSUES OF
            MATERIAL     FACTS   IN   DISPUTE,    AN
            EVIDENTIARY HEARING WAS REQUIRED.

      When we review an order denying a PCR petition in a case where the Law

Division judge has denied defendant an evidentiary hearing, and no issues turn

on credibility, our review is de novo. See State v. Harris, 181 N.J. 391, 421

(2004); see also State v. Hyland, ___ N.J. ___, ___ (2019) (slip op. at 9) ("Our

analysis requires that we apply the law, as we understand it, and afford no


                                                                        A-5176-17T4
                                      13
special deference to the trial court's interpretation of the law or the legal

consequences that flow from established facts.") (citing State v. Miles, 229 N.J.

83, 90 (2017)).

      To establish a claim that trial counsel was constitutionally ineffective, a

defendant must establish two elements. First, a defendant must show that

"counsel's performance was deficient," that is, "that counsel made errors so

serious that counsel was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668,

687 (1984); accord State v. Fritz, 105 N.J. 42, 52 (1987). Second, a defendant

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

unprofessional errors, the result of the proceeding would have been different."

Fritz, 105 N.J. at 60-61 (quoting Strickland, 366 U.S. at 694). To set aside a

guilty plea based on ineffective assistance of counsel, a defendant must establish

under Strickland's second prong "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. DiFrisco, 137 N.J. 434, 457 (1994) (quoting

Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

                                       B.




                                                                          A-5176-17T4
                                       14
      Defendants are entitled to an evidentiary hearing if they establish a prima

facie case in support of post-conviction relief, the court determines there are

material issues of disputed fact that cannot be resolved by reference to the

existing record, and the court determines that an evidentiary hearing is necessary

to resolve the claims for relief. R. 3:22-10(b). To establish a prima facie claim

of ineffective assistance of counsel, a defendant must demonstrate the

reasonable likelihood of succeeding under the Strickland-Fritz test. See State v.

Preciose, 129 N.J. 451, 463 (1992). "As in a summary judgment motion, the

motion judge should view the facts in the light most favorable to a defendant to

determine whether a defendant has established a prima facie claim." State v.

Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). If a defendant has

presented a prima facie claim and the facts supporting the claim are outside of

the trial record, the trial court should ordinarily grant an evidentiary hearing to

resolve the claim. Ibid.

      In the case before us, defendant first contends his plea counsel was

ineffective for allowing him to be coerced into pleading guilty. He argues he

was coerced by the trial judge's "outbursts," the judge's arbitrary moving of the

plea cutoff date to prevent him from speaking to counsel of his choice, and the

assistant public defender's failure to advise him of the deportation consequences


                                                                           A-5176-17T4
                                       15
of his plea. Our evaluation of these arguments is guided by the following legal

principles.

      "For a plea to be knowing, intelligent and voluntary, the defendant must

understand the nature of the charge and the consequences of the plea." State v.

Johnson, 182 N.J. 232, 236 (2005). In State v. Slater, 198 N.J. 145 (2009), the

Court explained the factors trial courts must balance in exercising their

discretion to grant defendants' motions to withdraw guilty pleas. Id. at 157-58.

The Court later explained, however, "when the issue is solely whether an

adequate factual basis supports a guilty plea, a Slater analysis is unnecessary."

State v. Tate, 220 N.J. 393, 404-05 (2015) (citing State v. Campfield, 213 N.J.

218, 230-32, 235-37 (2013)). We perceive no legally significant difference

between a plea entered without a factual basis, and a plea entered unknowingly

or involuntarily. See R. 3:9-2; State v. Lipa, 219 N.J. 323, 331 (2014). Because

defendant claims he unknowingly and involuntarily entered his plea, we must

first address this threshold issue. An analysis under Slater is unnecessary. See

Tate, 220 N.J. at 404.

      "Before deciding whether to plead guilty, a defendant is entitled to 'the

effective assistance of competent counsel.'" Padilla v. Kentucky, 559 U.S. 356,

364 (2010) (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).


                                                                         A-5176-17T4
                                      16
Considering that "changes to our immigration law have dramatically raised the

stakes of a noncitizen's criminal conviction[,] [t]he importance of accurate legal

advice for noncitizens accused of crimes has never been more important." Ibid.

It is now settled that an attorney provides a defendant with ineffective assistance

if the attorney does not advise the client of the potential deportation

consequences of pleading guilty. Id. at 371; State v. Gaitan 209 N.J. 339, 346

(2012).

      Defendants are not only entitled to competent counsel, they are, in

general, entitled to counsel of their choice. "The United States Supreme Court

has recognized a defendant's Sixth Amendment right to 'a fair opportunity to

secure counsel of his own choice.'" State v. Miller, 216 N.J. 40, 62 (2013)

(quoting Powell v. Alabama, 287 U.S. 45, 53 (1932)). "'Deprivation of the right

is "complete" when the defendant is erroneously prevented from being

represented by the lawyer he wants, regardless of the quality of the

representation he received.'" Ibid. (quoting United States v. Gonzalez-Lopez,

548 U.S. 140, 148 (2006)).

      Applying the foregoing principles to the case before us, we conclude

defendant's guilty plea was not made knowingly and voluntarily. Following

preliminary discussions during the proceeding that culminated in defendant's


                                                                           A-5176-17T4
                                       17
plea, the judge announced that defendant had "today and today only to get a

concurrent. If he doesn't take the offer today, it's consecutive." The judge's

comment could have been intended for no other purpose than to induce

defendant to plead guilty before the proceeding's end. The inducement appeared

to be effective. After assuring defendant that "everything is going to be

concurrent," defense counsel said "[w]e'll do it now."

      Following    a   recess,   defense    counsel      confirmed   the    State's

recommendation was "three years consecutive to his open sentence," but "the

court has recommended that [only] if [defendant] enters his plea to bail jumping

today." Defense counsel further confirmed that the "flat three" on the bail

jumping offense would be concurrent to both the open weapons charge and the

sentence defendant was serving. However, when defendant informed the court

"they're not giving me the option to be able to come tomorrow to hire a private

attorney," the court responded: "Sure we will. I'll tell you what, no plea. Go to

trial. Get you the consecutive term. Take him away."

      Perhaps the judge's remark, removed from the context of the ensuing

colloquy, could be interpreted as merely informing defendant of the

consequences of a delay in proceedings. During the ensuing colloquy, however,

the judge decided to arbitrarily designate the day of the proceeding as the plea


                                                                           A-5176-17T4
                                      18
cutoff date. The judge did not explain his reason for doing so, even though

defendant agreed to have his private attorney appear three days later – four days

before the day the court had initially determined to "[p]ut him down for a plea

cutoff."

      When defendant interjected that he had a private attorney who would

appear on Thursday, the court said that was fine and directed that defendant be

remanded to county jail until Thursday. However, when the assistant public

defender disclosed he could not be available on Thursday the judge decided to

"[d]o the plea cutoff papers now." After the assistant prosecutor acknowledged

he was unaware of whether discovery had been complete, defense counsel

protested that "I really have not had a great deal of time to - - ." He didn't finish

his sentence because the judge cut him off and commented on the uncomplicated

nature of the bail jumping offense. The judge then said though he was willing

to run the sentence concurrent, defendant was not happy with it, so he could go

to trial and "it will be five to ten consecutive. Okay? That's what he wants,

that's what he gets."

      The judge did not couch his remarks in explanatory terms; rather, he

declared what the sentence would be if defendant went to trial.      The judge was,

of course, incorrect in suggesting that a trial and five to ten year consecutive


                                                                             A-5176-17T4
                                        19
sentence was what defendant wanted. What defendant wanted was advice from

counsel of his choice. It is difficult to discern any reason for the judge's

comments other than to coerce defendant into foregoing the right to counsel of

his choice and pleading guilty immediately. Such "an unreasoning and arbitrary

insistence upon expeditiousness in the face of a justifiable request for delay

violates the right to the assistance of counsel." State v. Martinez, 440 N.J.

Super. 537, 544 (App. Div. 2015) (citations omitted). That is what happened

here.

        The prejudice to defendant was exacerbated by the absence of any

discussion about the deportation consequences of his plea. Assuming either that

defendant could speak English and read the plea forms, or that his attorney read

him the subparts of question seventeen on the plea form, the form contained an

ambiguity that no one corrected or addressed: defendant's answer that he would

like the opportunity to discuss the immigration consequences of his plea with an

attorney.

        True, another recess was taken after which defendant entered a plea and

said he was doing so voluntarily, as confirmed by his counsel. But no one asked

him if he had reconsidered his constitutional right to counsel of his choice, no

one attempted to clarify his statement on the plea form that he wanted the


                                                                        A-5176-17T4
                                      20
opportunity to speak with an attorney about the immigration consequences of

his plea, and no one disabused him of the notion that the judge would sentence

him to "five to ten consecutive" if he exercised his right to consult with counsel

of his choice. Moreover, the appellate record includes no explanation of the

discrepancy between the inducement for defendant to enter a plea immediately

– a three year term concurrent to the three years he would serve on each of the

two weapons offenses, which would also be concurrent – and the judgment of

conviction, which states "this three year term for bail jumping is consecutive to"

the three year term imposed on the weapons offense for which he had not been

sentenced at the time of his plea.

      Reviewing the record in the light most favorable to defendant, Cummings,

321 N.J. Super. at 170, defendant has established a prima facie claim.

Generally, when a defendant has established a prima facie case of ineffective

assistance because counsel has not informed him of the immigration

consequences of a plea, and a hearing is necessary to determine the second

Strickland prong, namely, whether defendant would have rejected the plea, a

remand for a hearing is necessary. There are, however, "circumstances that are

so likely to prejudice the accused that the cost of litigating their effect in a

particular case is unjustified." Miller, 216 N.J. at 58. We find this to be such a


                                                                          A-5176-17T4
                                       21
case of self-evident prejudice. The record discloses defendant was coerced into

pleading guilty and deprived not only of his right to consult with counsel about

the immigration consequences of his plea, but also of the right to counsel of his

choice. For these reasons, we vacate the plea to the bail jumping offense and

remand the matter for further proceedings.

      Reversed and remanded. We do not retain jurisdiction.




                                                                         A-5176-17T4
                                      22
