SUPERIOR COURT OF NEW JERSE Y APPELLATE DIVISION DOCKET NO . A

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- Respondent ,

v. ANSUMANI KAM AR A , Defendant

- Appellant

.

________ _______________

Submitted December 4, 2019

- Decided Before Judges Koblitz and Mawla

. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 13

- 03

- 0 707. Joseph E. Krakora, Publ ic Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, on the brief). Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; Roberta DiBiase, Supervising Assis ta nt Prosecutor, on the br ief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 c ase and its use in other cases is limited. R. 1:36

- 3.

December 16 , 20192 A

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Defendant Ansumani Kamara , who was born in Liberia, appeals from the February 16, 2018 order denying his petition for post

- conviction relief (PCR) without an evidentiary hearing following his guilty plea to first d egree robbery , N.J.S.A. 2C:15

- 1(a)(2)

. Because his counsel may have been ineffective in not explaining the deportation consequences of his August 2014 guilty plea, we reverse and remand for a plenary hearing.
We review a judge's denial of PCR without an evidentiary hearing de

n ovo. State v. Jackson , 454 N.J. Super. 284, 291 (App. Div. 2018). "Post

conviction relief is neither a substitute for direct appeal, R. 3:22

- 3, nor an opportunity to relitigate cases already decided on the merits, R. 3:22

- 5." St a te v. Preciose , 129 N.J. 451, 459 (1992). A defendant raises a cognizable PCR claim if it is based upon a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey. " R. 3:22

- 2(a). Because all criminal defendants have the constitutional right to the assistance of counsel in their defense, defendants may bring a PCR claim for ineffective assistance of counsel. U.S. Const. amend. VI; N.J. Con s t. art. I, ¶ 10.
To rev erse a conviction based on ineffective assistance of counsel, a defendant must demonstrate that both : (1) "counsel's performance was3 A

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deficient" and (2) counsel's " errors were so serious as to deprive the defendant of a fair trial ." Strickland v. Washingto n , 466 U.S. 668, 687 (1984); see State v. Fritz , 105 N.J. 42, 58 (1987) (adopting the Strickland two

- part test in New Jersey). Under the first prong, counsel's representation must be objectively unreasonable. State v. Pierre , 223 N.J. 560, 578 (2015). Under the second prong, a "reasonable probability [must exist] that, but for counsel's unprofessi onal errors, the result of the proceeding would have been different." Id. at 583 (quoting Strickland , 466 U.S. at 694). In reviewing a PCR petition seeking to set aside a guilty plea, a court will find ineffective assistance of counsel upon the defendan t's showing "that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'; and (ii) 't h at there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and wou ld have insisted on going to trial.'" State v. Nuñez

- Valdéz , 200 N.J. 129, 139 (2009) (quoting State v. DiFri sco , 137 N.J. 434, 457 (19 9 4)). In other words, defendant must show that not pleading guilty would have been "rational under the circumstances." State v. O'Donnell , 435 N.J. Super. 351, 371 (App. Div. 2014) (quoting Padilla v. Kentucky , 559 U.S. 356, 372 (2010)).4 A

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"[W]hile evide nti ary hearings are not required," a PCR judge has the discretion to grant such a hearing. State v. Jones , 219 N.J. 298 , 311 (2014). A defendant seeking PCR is entitled to an evidentiary hearing when (1) he or she sets forth a prima facie case of ineffec tiv e assistance of counsel; (2) the court determines "there are material issues of disputed fact that cannot be resolved by reference to the existing record"; and (3) the court determines "that an evidentiary hearing is necessary to resolve the claims for rel ief." R. 3:22

- 10(b). " The judge deciding a PCR claim should conduct an evidentiary hearing when there are disputed issues of material facts related to the defendant's entitlement to PCR, particularly when the dispute regards events and conversations t hat occur off the record or outside the presence of the judge." State v. Porter , 216 N.J. 343, 35 4 (2013)

. In making t his determination, the PCR judge must consider the facts in the light most favorable to the defendant. Jones , 219 N.J. at 302

. The Un ited States Supreme Court recognized that "[i]t is our responsibility under the Constitution to ensure that no criminal defendant

— whether a citizen or not

— is left to the 'mercies of incompetent counsel.'" Padilla , 559 U.S. at 374 (quoting McMann v. Richar dson , 397 U.S. 759, 771 (1970)). " I t is quintessentially the duty of counsel to provide [his or] her client5 A

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with available advice about an issue like deportation." Id. at 371 (quoting Hill v. Lockhart , 474 U.S. 52, 62 (1985)). If a non

- citizen is not ma de o f aware of the immigration consequences of a guilty plea, counsel's performance is deficient, and the first prong of Strickland is satisfied. Ibid. Padilla does not distinguish between "providing affirmative misadvice and providing no advice, re asonin g t hat to limit the holding to affirmative misadvice would absurdly give counsel 'an incentive to remain silent on matters of great importance, even when answers are readily available.'" State v. Gaitan , 209 N.J. 339, 356 (2012) (quoting Padilla , 55 9 U.S. at 370). "When the law is n ot 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. In contrast, "when the deportation consequence is truly clear . . . the duty to give correct advice is equally clear." Ibid. Defendant claim s his lawyer knew he was not a United States citizen but neglected to advise defendant of the immigration co nseque nce s of his guilty plea. Defendant says he told his lawyer he had a green card . Also, the pre

sentence report stated he was born in Liberia. Defendant says his counsel should have inquired into the accuracy of the information on the guilty plea6 A

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form and ex plain ed to him how his right to stay in the United Sta t es was impacted by the guilty plea. D efendant argues that a remand for an evidentiary hearing is necessary to investigate wh ether plea counsel knew defendant was
not a U nited States citizen

. We ag ree . The plea form was completed by counsel . A fter reviewing the form, defendant signed it. In response to question 17a on the plea form , which asked whether defendant was a United States citizen, the form indicated "yes." Because the form indicated de fen dant was a citizen, q uestions 17b

- 17 f, which inquired into whether defendant understood that pleading guilty may result in his removal from the country and that he was entitled to individualized advice from an immigration attorney , were crossed out. Du rin g the plea hearing, d efendant testified that the answers on the plea form were "truthful and
accurate." T he judge did not ask defendant about his immigration status , nor whether he was aware of the immigration consequences of a guilty plea for a noncit ize n . Defendant's pre - sentence report , which was prepared after the plea hearing, revealed that defendant was born in Liberia. At sentencing, w hen asked by the judge whether the report was accurate, counsel did not bring to7 A

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the judge's attention that w hile the plea form stated defendant was a citizen, the report stated he was bo rn in a foreign country

. At the PCR hearing, defendant first tol d his PCR counsel that he had informed his plea counsel of his green card. T he judge granted defendant thirty days to supplement the record with proof that he had a gre en card when he pled guilty. When defendant failed to provide the proof within the thirty days, the PCR court denied defendant's petition wi thout an evidentiary hearing. About two months after th e judge issued his order, PCR counsel submitted a request to reconsider the denial of def e n dant's application. The judge noted in his May 2019 letter to PCR counsel that he was in receipt of a photocopy of defendant's green card, but "[s]ince this matter is alrea dy on appeal and this [c]ourt has already issued a decision, which in this [c]our t's opinion disposes of the issues properly, this [c]ourt believes the matter should continue through the appellate process."
P rofessional norms suggest that plea c ounsel "sho uld determine a client's citizenship and immigration status

. " American Bar As sociation, Criminal Justice Standards for the Defense Function 4

- 5.5(a) (4th ed. 2015)

.

" P revailing norms of practice as reflected in American Bar Association8 A

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standar ds and the like . . . are guides to determining w hat is reasonable , but they are only guides." Strickland , 466 U.S. at 688. Assuming plea counsel was aware that defendant was not a citizen and in fact held a green card, plea counsel's failure to inform d efendant th at pleading guilty may result in his removal from the country clearly viola tes Padilla , and was not "within the range of competence demanded of attorneys in criminal
cases." Nuñez

- Valdéz , 200 N.J. at 139 (quoting DiFri sco , 137 N.J. at 457). It is not un r easonable to believe, as defendant asserted, that had he known of the depor tation consequence he would not have pled guilty. Whether plea counsel was told that defendant was not a citizen is a "material issue[] . . . that cannot be resolved b y reference t o the existing record." R. 3:22

- 10(b). In revealing plea counsel's know ledge about defendant's immigration status, defendant did more than make a "bald assertion" that plea counsel was ineffective. See Porter , 216 N.J. at 355 (quoting State v. Cummings , 321 N.J. Super. 154, 170 (App. Div. 1999) ). Instead, defendant articulates a specific fact that "demonstrates counsel's alleged substandard performance." See Cummings , 321 N.J. Super. at 170.9 A

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A hearing to determine wh ether plea counsel ha d sufficient i nformation to trigger an investigation into d efendant's citizenship at the time of the guilty plea is necessary. Reversed and remanded for a plenary hearing. We do not retain jurisdiction.