Deportation and Ineffective Trial Counsel (Part 3)

Judge Rose continued in relevant part: As we recently observed, “where a defendant has neither acknowledged guilt, nor entered a guilty plea, successful completion of PTI would not constitute a ‘conviction’ under the INA.” State v. L.G.-M., (2020), certif. denied, ___ N.J. ___ (2020) (citing Pinho v. Gonzales, 432 F.3d 193, 215-16 (3d Cir. 2005)). Notably, in Pinho, the Third Circuit held that where the petitioner’s prior conviction had been vacated pursuant to a defect in the criminal proceedings, i.e., based on his IAC claim, the conviction no longer existed for immigration purposes. 432 F.3d at 215. Ultimately, the petitioner in Pinho was admitted to PTI without admitting guilt. Ibid. Where, however a defendant “has admitted sufficient facts to warrant a finding of guilt” – whether or not defendant has pled guilty in connection with a diversionary program – the INA’s definition of “conviction” has been satisfied. 

When defendant entered his guilty plea in 2015, the removal consequence of PTI with an admission of guilt was clear. Therefore, defendant’s plea attorneys were required to inform defendant of that consequence. Defendant’s sworn assertions that plea counsel failed to advise him that his plea of guilty would lead to removal – even if he successfully completed PTI – warrant an evidentiary hearing, where the advice given by defendant’s first plea counsel is not contained in the record and his second plea counsel stated during the plea hearing that “there may be negative ramifications” of defendant’s guilty plea. (Emphasis added). 

In that regard, we disagree with the PCR court’s determination that defendant was aware of the immigration consequences of his disposition because the plea court had so informed him. We have previously “recognized the distinct roles of the trial judge and counsel.”  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 (App. Div. 2016).

The holding regarding the distinct roles of counsel and judge might make a lot of the time spent during plea hearings superfluous. If judges are painstakingly telling non-citizen defendants about the potential for removal proceedings, they might be wasting precise time and judicial resources in light of this holding.