On July 24, 2020, a three-judge appellate panel decided the Passaic County case of State v. Amir Aburoumi. The principal issue under N.J.S.A. 2C:43-2 was whether the defendant was entitled to a post-conviction relief hearing regarding the immigration advice that he received from his attorneys.
Judge Rose wrote for the panel in relevant part: Where, as here, the PCR court has not conducted an evidentiary hearing, we review its legal and factual determinations de novo. State v. Jackson (App. Div. 2018). To establish an IAC claim, a defendant must demonstrate: (1) counsel’s performance was deficient; and (2) the deficient performance actually prejudiced the petitioner’s defense. Strickland v. Washington (1984); see also State v. Fritz, (1987) (adopting two-part Strickland test in New Jersey). Thus, to set aside a plea based on IAC, “a defendant must show that (i) counsel’s assistance was not ‘within the range of competence demanded of attorneys in criminal cases’; and (ii) ‘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. Nunez-Valdez, (2009) (alteration in original) (quoting State v. DiFrisco, (1994)). In other words, “a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky (2010).
In the present matter, if plea counsel recommended defendant accept an offer from the State to plead guilty as a condition of admission to PTI when, at that time, the PTI Guideline prohibited that requirement, defendant’s initial plea counsel’s performance might have been deficient. However, there could have existed strategic reasons for that advice. As PCR counsel postulates in his merits brief, defendant “seems to have pled guilty to the accusation in order for him not to be formally charged with the weapons charges.” Again, because the circumstances of the negotiations are not clear from the record, an evidentiary hearing is warranted on that basis. In that context, we consider defendant’s claim that his plea counsel failed to advise him about the immigration consequences of his guilty plea.
The holding in Padilla concerning rational decisions seems to confuse the inquiry regarding a deficient performance by counsel with an inquiry into the defendant’s though process. The former is an objective standard and the latter is subjective.
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