SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0226- 22 STATE OF NEW JERSEY, Plaintiff-Respondent,

v. JEAN BIEN-AIME-NICOLAS, Defendant-Appellant.

__________________________

Submitted March 5, 2024

– Decided March 18, 2024 Before Judges Rose and Perez Friscia. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 15- 05

- 0952. Jennifer Nicole Sellitti, Public Defender, attorney for appellant (Monique D. Moyse, Designated Counsel, on the brief). Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney for respondent (Hannah Faye Ku rt , Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0226

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Defendant Jean Bien-Aime-Nicolas appeals from the June 28, 2022 Law Division order , which denied his petition for post-conviction rel ief (PCR) without an evidentiary hearing. Defendant contends a rema nd for an evidentiary hearing is mandated because he made a prima facie s howing of ineffective assistance of counsel (IAC) by demonstrating plea counsel incorrectly advised him of deportation consequences and PCR counsel fai l ed to present his selfrepresented motion to withdraw his plea. We revers e and remand for an evidentiary hearing.
I. Defendant, a non-citizen, was born in France and be gan resid ing in the United States in 2007. After defendant pleaded guilty to unlawfully possessing a handgun, N.J.S.A. 2C:39-5(b)(1), and was sentence d in 2017 , he was deported. Defendant has two children residing in the United S tates

. On May 5, 2015, defendant was charged in a n Essex County grand jury indictment with : first-degree robbery, N.J.S. A. 2C:15-1(a)(1) (c ount one); second-degree kidnapping, N.J.S. A. 2C:13-1(b) (c ount two); second-degree possession of a weapon for an unlawful purpose, N.J .S. A. 2C:39-4(a) (c ount three); second-degree unlawful possession of a hand gun without a permit , N.J.S. A. 2C:39-5(b)(1) (c ount four); fourth-degree possession of a prohibited3 A- 0226

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weapon, N.J.S.A. 2C:39-3(d) (c ount five); third-degree terroristic threats,
N.J.S. A. 2C:12-3(b) (count six); third-degree endangering t he welfare of children, N.J.S. A. 2C:24-4(a) (c ount seven); and third-degree resisting arrest,
N.J.S. A. 2C:29-2(a )( 3)(a) (c ount e ight)

. Defendant entered a negotiated plea agreement. On June 2, 2017, defendant pleaded guilty to se cond-degree unlawful possession of a handgun after complet ing plea forms with plea counsel

. In response to question

seventeen , defendant indicated he was not a United States ci tizen. He also indicated he understood that his "guilty plea may r esult in [his] removal from the United States" and he had the " right to seek individualized advice from an attorney." Defendant, however, did not answer ques tion seventeen's remaining sub -parts regarding potential immigration consequences. Specifically, he failed to respond to whether he had "discussed . . . the p otential immigration consequences" of his plea with an attorney, and "[w]o uld like the opportunity to do so." Additionally, he failed to answer whether he "still wish[ed] to plead guilty" after being advised of the possible immigra tion consequences. During the plea hearing, the judge comprehensively asked several questions confirming that defendant understood the possibility of deportation, had discussed deportation consequences with counsel , and still wished to plead4 A- 0226

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guilty though deportation was likely. Defendant responded in the affirmative to the judge's specific question, "without knowing for sure, let us assume that you will be deported, do you still wish to plead guilty ?" The following exchange occurred regarding defendant's citizenship status a nd deportation:

THE COURT: Having been advised of the possible immigration consequences resulting from your guilty plea, do you still wish to plead guilty?
DEFENDANT: Yes.

. . . . THE COURT: [Plea counsel], are you satisfied the p lea should be entered and it's entirely voluntary on yo ur client's behalf? PLEA COUNSEL: Yes, Judge. I would just like to add, for purposes if the matter is ever revisited i n the immigration context, that I have been in contact fo r some time, repeated contact, with the immigration attorney, with the Office of the Public Defender in our Camden office, who has indicated that the plea here today to the second-degree possession of a gun and possession of a gun only is not a crime of moral turpitude and is not an aggravated felony. . . . What I'm placing on the record now is what I have been advis ed and what I have advised my client . . . it is not a mandatory deportation event. However, should [defendant] leave the country, in all probability, if not certainty, he will be barred from re-entry. And sh ould he wish to apply for U[nited] S[tates] citizenship, he will have to wait at least five years to re-establish good conduct.5 A- 0226

- 22 PLEA COUNSEL: [Defendant], is that accurate? Is that what you and I have discussed? DEFENDANT: Yes, sir.

. . . . PLEA COUNSEL: Judge, before we close the record, and, again, relative to any immigration consequences, I was advised that the original plea tendered to [defendant] was a five-year maximum with a forty- two

month minimum. That five-year top number would, in fact, trigger immigration consequences. . . . [A]ft er speaking to Mr. Imhoff over lunch today, the forty- two

month maximum with a forty- two -month minimum should avoid that problem. [(Emphasis added) .] Further, after confirming his ability to read and w rite English, defendant acknowledged review ing and answer ing the plea forms. The judge did not address defendant's failure to respond to all the p lea form deportation questions. On July 17, 2017, pursuant to the plea agreement , the judge sentenced defendant to a forty- two -month term of imprisonment with a forty- two -month period of parole ineligibility pursuant to the Grav es Act, N.J.S.A. 2C:43-6(c) , and dismissed the remaining counts. At sentencing, the judge noted defendant had an "[Immigration and Customs Enforcement] detai ner" and stated, "presumably, when his sentence is through here, he will be deported."6 A- 0226

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Defendant contends he filed a self-represented PCR petition , a n accompanying brief, and a motion to withdraw his pl ea . He also filed multiple certifications and amendments dated between Decembe r 2020 and January 2021. It is unclear whether all the documents provided on appeal were submitted to the judge

. Defendant maintains he was unaware he was subject " to mandatory deportation" and not informed of "the immigration c onsequences of" his guilty plea. In a supplemental certification, defendant a ssert ed plea counsel "assured" him he "would not be deported" and that "there was no chance or risk of any deportation." He further averr ed "he would never have accepted the plea deal" if he knew deportation were possible. PCR counsel filed a supplemental PCR brief, incorporating defendant's self-represented a rguments. In pertinent part, PCR counsel argued: plea counsel provided ineffect ive assistance because defendant was not advised he was subject to mandato ry deportation; and genuine issues of material fact required a hearing. On June 28, 2022 , after argument, the PCR judge rendered an oral de cision and memorializing order denying defendant's PCR pet ition

. The judge found plea counsel "alert[ed] . . . defendant of the depo rtation risk associated with the plea." The judge concluded "the totality of circum stances" indicated "defendant was not misle[d] by [plea] counsel." He reasoned that counsel "had inquired of7 A- 0226

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immigration counsel " regarding "what the plea would mean in terms of the prospect or possibility of deportation," defendant "was made aware of that possibility," and defendant nonetheless "decided he wanted a plea deal . . . even assuming it meant deportation for him." The judge did not address defendant's self-represented motion to withdraw his plea. On appeal, defendant raises the following points : POINT ONE [DEFENDANT] IS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIM THAT [PLEA] COUNSEL RENDERED [IAC] BY FAILING TO INFORM HIM OF THE DEPORTATION CONSEQUENCES OF HIS PLEA. POINT TWO [DEFENDANT] 'S MOTION TO WITHDRAW HIS PLEA MUST BE REMANDED FOR A NEW PCR COUNSEL OR, IN THE ALTERNATIVE, FINDINGS OF FACT AND CONCLUSIONS OF LAW BY A PCR COURT.
II. In the absence of an evidentiary hearing, we review de novo the factual inferences drawn from the record by the PCR judge a s well as the judge's legal conclusions. State v. Aburoumi, 464 N.J. Super. 326, 338- 39 (App. Div. 2020). "We are not bound by, and owe no deference to, the trial court's legal8 A- 0226

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conclusions." State v. Alvarez, 473 N.J. Super. 44 8, 455 (App. Div. 2022) (citing State v. Harris, 181 N.J. 391, 4 15 (2004)). A petitioner must establish entitlement "to PCR by a preponderance of the evide nce." State v. O'Donnell , 435 N.J. Super. 351, 370 (App. Div. 2014). To succeed on an IAC claim, a defendant must satisf y both prongs of the test set forth in Strickland v. Washington, 466 U.S . 668, 687 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). "First, the defendant must show that counsel's performance was deficient." Strickland, 466 U.S. at 687. This requires demonstrating that "cou nsel made errors so serious that counsel was not functioning as the 'counsel' g uaranteed the defendant by the Sixth Amendment." Ibid. The United States Constitution requires "reasonably effective assistance." Ibid. An attorney's performance will not be deemed deficient if counsel acted "within the range of com petence demanded of attorneys in criminal cases." Ibid. (quoting McMan n v. Richardson, 397 U.S. 759, 771 (1970)). Therefore, "[w]hen a convicted d efendant complains of the ineffectiveness of counsel's assistance, the defend ant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-
88. A petitioner is not automatically entitled to an evid entiary hearing by simply raising a PCR claim. State v. Cummings, 321 N.J. S uper. 154, 170 (App. Div.9 A- 0226

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1999). When assessing the first Strickland prong, "[j]udicial scrutiny of counsel's performance must be highly deferential," and "every effort [must] be made to eliminate the distorting effects of hindsig ht." 466 U.S. at 689. Under the second prong, "the defendant must show th at the deficient performance prejudiced the defense." Id. at 687. This means "counsel's errors were so serious as to deprive the defendant of a fa ir trial, a trial whose result is reliable." Ibid. It is insufficient for the defendant to show the errors "ha d some conceivable effect on the outcome." Id. at 693. In the context of a PCR petition challenging a guil ty plea based on an IAC claim, the second prong is established when the def endant demonstrates a "reasonable probability that, but for counsel's err ors, [the defendant] would not have pled guilty and would have insisted on going t o trial." State v. Nuñez Valdéz, 200 N.J. 129, 139 (2009) (alteration in ori ginal) (quoting State v

. DiFrisco, 137 N.J. 434, 457 (1994)). However, a de fendant also must show "a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010). Our Supreme Court , in State v. Gaitan, addressed deportation advice of counsel, establishing that "an attorney must tell a client when removal is mandatory when consequences are certain." 209 N.J. 339, 380-81 (2012).10 A- 0226

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Defendants can establish IAC if their attorney prov ided false or inaccurate advice that the plea would not result in deportatio n. Nuñez-Valdéz, 200 N.J. at
1 41

- 42. The United States Supreme Court has clarified tha t counsel's duty is not limited to avoiding false or misleading informa tion, but also includes an affirmative duty to inform a defendant entering a g uilty plea of the relevant law pertaining to mandatory deportation. See Padilla v. Kentucky, 559 U.S. 356, 369 (2010). When deportation is a clear consequenc e of a guilty plea, the defendant's counsel has an affirmative duty to addr ess the subject and give correct advice. See i d. at 3 69 . Conversely,"[w]hen the law is not succinct and straightforward . . . a criminal defense attorney n eed do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences." State v. Chau, 473 N.J. Super. 430, 443

- 44 (App. Div. 2022) (alterations in original) (quoting Padilla, 559 U.S. at 369). Counsel's "failure to advise a noncitizen client that a guilt y plea will lead to mandatory deportation deprives the client of the effective as sistance of counsel guaranteed by the Sixth Amendment." State v. Barros, 425 N.J. S uper. 329, 331 (App. Div.
2012 ) (citing Padilla, 559 U.S. at 369 ).11 A- 0226

- 22 A. Defendant argues the PCR judge erred in failing to hold an evidentiary hearing because he demonstrated a prima facie showi ng that he would not have ple ad ed guilty , and would have gone to trial, had he known his de portation was mandatory. We agree. The judge denied the petitio n without an evidentiary hearing, finding that defendant was aware of the de portation consequences of his plea; however, the plea forms and c olloquy indicate otherwise

. Relevantly, when defendant pleaded guilty , section 237(a) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a), provided that an alien "shall . . . be removed if the alien is withi n one or more of the following classes," including " [c]ertain firearm offenses." Section 237(a)(2)(C) of the
INA stat ed : Any alien who at any time after admission is convic ted

under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offe r for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in [18 U.S.C. § 921( a)]) in violation of any law is deportable. [8 U.S.C. § 1227(a)(2)(C). ] 18 U.S.C. § 921 (a)(3)(A) defines a firearm as "any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a12 A- 0226

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projectile by the action of an explosive." T hus, defendant's conviction for possession of

a handgun without a permit mandated deportation under the INA.
It is undi sputed defendant 's agreement to plead guilty contemplated potential deportation consequences resulting from his conviction. In negotiating the plea agreement with the State, defendant's plea counsel asked immigration counsel regarding mandatory deportation for a posse ssion of a handgun conviction with a forty- two -month term of imprisonment sentence. During the plea colloquy, plea counsel clarified that " relative to any immigration consequences, [he] was advised that . . . the forty

- two -month maximum with a forty- two -month minimum should avoid" deportation. On the record, plea counsel asserted that he explain ed to defendant the handgun conviction was " not a mandatory deportation event." Plea counsel's basis for advising defendant that the conviction was not a mandatory deportation clas s offense under the INA was based on his consultation with an immigration attor ney. There is n o further information in the record indicating plea counsel's reasons for concluding that defendant's sentencing term in a third-degree range would avoid mandatory deportation.
W e further observe at the plea hearing, the judge did not address defendant's failure to respond to the plea form questions regarding whether he13 A- 0226

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had previously discuss ed with plea counsel the potential immigration consequences and whether he wanted to pursue "the righ t to seek individualized legal advice" on immigration issues. Nor is there any indication in the record that defendant was afforded an opportunity to speak with the immigration attorney referenced by his attorney during the plea hearing. For these reasons , we part ways with the PCR judge's finding that the record demonstrates defendant "was not misled to believe that he would[ ] [not] be deported." We conclude defendant has sufficiently established a prima faci e showing that plea counsel misinformed defendant regarding t he immigration consequences of his guilty plea. W hen the deportation consequence after a conviction is clear, "an attorney must tell a client when remova l is mandatory." See Gaitan, 209 N.J. at 380. It is clear an evidentiary hearing is warranted when,

as here, "[w]e cannot discern from [ th e] record whether . . . plea counsel could have easily determined with ' only very basic legal research' that these plea [] would render defendant deportable." See Chau, 473 N.J. Super. at 446

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. Defendant demonstrated material issues of fact rega rding the reasonable probability that but for plea counsel's alleged IAC as to the immigration consequences, he would have gone to trial and not p leaded guilty. See R. 3:22

- 10(b) (noting entitlement to an evidentiary hearing requires "a prima facie case14 A- 0226

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in support of [PCR], [and] . . . material issues of disputed fact that cannot be resolved by reference to the existing record"). " Because plea counsel's understanding of the law and h[is] advice to defendant . . . about the [mandatory] immigration consequences of his plea lie outside the record, . . . an evidentiary hearing is " required to address defendant's assertions of IAC and any resulting prejudice. Chau, 473 N.J. Super. at 446

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. B. We briefly address defendant's arguments that a remand is mandated because PCR counsel failed to present defendant's s elf-represented motion to withdraw his guilty plea , thereby requiring appointment of a new PCR counsel , and the PCR judge failed to address the motion

. In New Jersey, the right to the effective assistanc e of counsel extends to PCR counsel. See State v. Rue, 175 N.J. 1, 18-19 (20 02). PCR counsel "should advance all of the legitimate arguments requested b y the defendant that the record will support." R. 3:22 -6(d). Thus, "PCR counsel must communicate with the client, investigate the claims urged by the cli ent, and determine whether there are additional claims that should be brought forward." State v. Webster , 187 N.J. 254, 257 (2006). However, PCR counsel is not required to bolster claims raised by a defendant that are without found ation. Ibid.15 A- 0226

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In the present matter, defendant limits his content ions to the adequacy of the factual basis for his guilty plea. We recogniz e the PCR judge did not address defendant's contentions. See R. 3:22 -11 (requiring the court to "state separately its findings of fact and conclusions of law" in its disposition of a PCR petition). However, it is unclear from the record provided on appeal that defendant filed the motion for the judge's consideration. The remand hear ing, therefore, should also encompass defendant's motion. PCR counsel sho uld ensure defendant's multiple petitions and certifications are provided to the judge. However, we discern no reason for appointment of new PCR counse l. In summary, the matter is remanded for an evidentia ry hearing on defendant's IAC claims and consideration of his self-represented motion to withdraw his guilty plea, limited solely to the ade quacy of the factual basis underscoring his guilty plea. We express no view on the merits of any of defendant's contentions. Reversed and remanded. We do not retain jurisdicti on .