The Appellate Division concluded with the following in relevant part: Moreover, the plea court here specifically stated it did not know the effect of “going into PTI with a guilty plea,” then stated defendant should “assume the worst.” But it was not the court’s ultimate responsibility to advise defendant about the immigration consequences of his plea. In any event, that advice was not accurate here, where removal was certain.
We are also convinced the record demonstrates a reasonable probability that but for his counsels’ purported errors, defendant would not have pled guilty and would have gone to trial. Putting aside defendant’s admissions during his plea, it appears only he was a passenger in a car from which a paintball gun was shot by another. Given the difficulties those circumstances would have presented to the State in proving beyond a reasonable doubt defendant’s culpability, it would have been rational for him to reject the plea and proceed to trial if he had been properly advised his plea would result in his certain deportation and separation from his family.
We conclude defendant has established a prima facie case entitling him to a hearing regarding his plea counsel’s advice. If at the remand hearing, defendant satisfies his claim that the advice given by either or both of his plea counsel fell below professional norms, the court must then consider whether defendant “demonstrated that he would not have pled guilty if he had been provided with accurate information” from his plea counsel. When a defendant pled guilty prior to trial based on incorrect advice from counsel about deportation consequences, the court must determine “whether the defendant was prejudiced by the ‘denial of the entire judicial proceeding . . . to which he had a right.'” Roe v. Flores-Ortega (2000).
We express no view on the merits of any of defendant’s contentions. We leave it the PCR court on remand to assess the credibility and reliability of defendant’s contentions then apply the controlling legal principals we have identified to its factual findings. In view of our decision, we need not reach the court’s Slater analysis.
Reversed and remanded. We do not retain jurisdiction. The Slater analysis is relevant to a motion to withdraw a guilty plea. One of the Slater factors is whether the defendant has demonstrated “a colorable claim of innocence.” The Appellate Division did not have to assess this factor in light of the patently incorrect advice that the defendant received from his attorney(s).
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