NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1069-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. 

PAK L. CHAU, a/k/a 

XAVIER P. CHAU,

Defendant-Appellant.

_______________________

Argued November 29, 2021 – Decided September 7, 2022

Before Judges Messano,1 Accurso and Enright.

On appeal from the Superior Court of New Jersey, 

Law Division, Atlantic County, Indictment Nos. 11-

01-0223 and 12-09-2133.

Ronald P. Mondello argued the cause for appellant.

John J. Santoliquido, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for respondent (Cary Shill, Acting Atlantic County 

Prosecutor, attorney; John J. Santoliquido, of counsel 

and on the brief).

1

 Judge Messano did not participate in oral argument. He joins the opinion 

with counsel's consent. R. 2:13-2(b). 
A-1069-20 2

The opinion of the court was delivered by

ACCURSO, J.A.D.

Defendant Pak L. Chau appeals from an order dismissing his petition for 

post-conviction relief (PCR) as time-barred and denying his Slater2 motion 

premised on alleged ineffective assistance in connection with two guilty pleas 

he entered nearly ten years ago. We reverse and remand for an evidentiary 

hearing. 

Having reviewed the record, we are satisfied defendant established 

excusable neglect for failing to file a timely PCR petition in accordance with 

State v. DiFrisco, 187 N.J. 156, 166 (2006), as his Texas immigration counsel, 

who has represented defendant since shortly after he was placed in U.S. 

Department of Homeland Security, Immigration and Customs Enforcement

(ICE) detention in 2014, certified he failed to advise defendant until September 

2019 of the availability of a PCR application in New Jersey. Defendant 

obtained New Jersey counsel the same month, who filed this application on his 

behalf. 

We are also convinced there is a reasonable probability that if 

defendant's factual assertions that he pleaded guilty to receiving stolen 

property, not because he was guilty but because he got erroneous advice about 

2

 State v. Slater, 198 N.J. 145, 157 (2009). 
A-1069-20 3

the immigration consequences of risking trial and a jail term, are found to be 

true, "enforcement of the time bar would result in a fundamental injustice." R.

3:22-12(a)(1)(A). The court is also to reconsider defendant's Slater motion on 

remand, as defendant's testimony in support of his ineffective assistance claim 

may inform the court's assessment of defendant's colorable claim of innocence 

and the strength of his reasons for wishing to withdraw his plea, the first two 

factors in a Slater analysis. See State v. O'Donnell, 435 N.J. Super. 351, 370-

71 (App. Div. 2014).

Because the trial court rendered its decision without an evidentiary 

hearing, our review of both its legal and factual determinations is de novo.

State v. Harris, 181 N.J. 391, 421 (2004); State v. Aburoumi, 464 N.J. Super. 

326, 338-39 (App. Div. 2020). As directed by our Supreme Court, we "view 

the facts in the light most favorable to the defendant." State v. Jones, 219 N.J. 

298, 311 (2014).

Defendant came to this country as a lawful permanent resident in 2005 

with his mother and sisters. He was fifteen years old. His father remained 

behind in Hong Kong to manage the family's business. In August 2010, he 

was charged with fourth-degree shoplifting from a ShopRite in Galloway 
A-1069-20 4

Township.3 Two months later, he was again charged with shoplifting, this 

time in the third degree, from a ShopRite in Galloway Township. He was 

admitted into the pre-trial intervention (PTI) program in 2011.

A year later, defendant was charged with third-degree receiving stolen 

property, specifically a 1993 Mazda Miata. Defendant was arrested after he 

contacted police following a call from his mother that police wanted to speak 

to him about the Miata. He told police he was selling a 1990 Miata and parts 

on Craigs List. "[S]ome guy" who'd apparently seen defendant's listing 

contacted him online to ask him if he were interested in buying a 1993 Miata 

special edition. Defendant purchased the Miata for $3,000, consisting of $500 

in cash and a supercharger valued at $2,500. "The guy" told defendant he 

would mail him the title, or he could get one from the Division of Motor 

Vehicles for $200. Defendant told police he put the tags from his 1990 Miata 

on the car until he could get the new title. Police tracked him through his old 

tags.

As defendant was leaving the stationhouse, he heard a man in the lobby 

talking on the phone to dispatch about the stolen Miata and asked if he was the 

owner. Defendant apologized about the incident and told the owner he'd 

3

 Defendant had already been convicted of the disorderly persons offense of 

shoplifting in municipal court in Absecon in 2009. 
A-1069-20 5

bought the car from a guy on Craig's List. He also offered to try to reimburse 

the owner for the storage fees the police were charging him to store the car. 

The only information he could offer about the seller was that he was "a 

Spanish guy." The owner told police he'd fired a new employee of his 

business the week before; an Hispanic man, who the owner claimed was a 

recovering heroin addict. The Miata was stolen from the parking lot of the 

owner's business.

Defendant, represented by the same public defender who had gotten him 

into PTI, pleaded guilty to receiving stolen property in November 2012, even 

though, as the judge taking his plea informed him, "this guilty plea to this new 

charge will really almost certainly terminate your PTI unsuccessfully." 4 On 

learning defendant was not a citizen, the judge also ensured defendant was 

aware that if a federal immigration judge concluded the charge to which 

defendant was pleading guilty "is what they call an aggravated felony," he 

"would certainly be deported" and understood the judge could not tell him 

"with any certainty at all what the federal authorities will or will not do with 

respect to your immigration status because of this guilty plea."

4

 Defendant had two weeks earlier entered a not-guilty plea and his counsel 

had asked for a status conference in two weeks, saying the defense had 

"discovery and an offer from the State." Defendant pleaded guilty at the status 

conference with a "[r]ecommended sentence by the State [of] probation with 

no jail time." 
A-1069-20 6

Defendant declined the judge's invitation to postpone his plea in order to 

consult with immigration counsel and told the judge he understood the charge 

and the rights he was waiving by entering a guilty plea. When the judge asked 

if defendant intended to plead guilty after being provided all that information, 

defendant responded, "Well, I don't have a choice, so." When the judge 

advised defendant he did "have a choice," defendant replied he "[didn't] want 

to risk going to jail, so." Defendant thereafter answered yes to the three 

questions put to him by his lawyer — was he in Atlantic City on May 15, 

2012; did he have property in his possession, which he knew or believed was 

stolen; and was that property a 1993 Mazda Miata — and the judge accepted 

his plea to third-degree receiving stolen property.

Two months later, in January 2013, the same public defender who had 

represented defendant throughout the proceedings advised the court defendant

would not oppose the State's motion to terminate PTI and wished to plead 

guilty to the third-degree shoplifting charge with the State's recommendation 

of probation with no jail time concurrent to his anticipated sentence for 

receiving stolen property. When the judge asked defendant in the course of the 

plea colloquy if he understood his plea could have "immigration 

consequences," the two engaged in the following exchange.

A. Yes. I talked to a lawyer. 
A-1069-20 7

Q. Oh, you did? 

A. Yeah, I talked to a lawyer already. 

Q. To an immigration lawyer? 

A. Well, they won't — as long as I stay out of jail and 

then I'll be fine. That's what he told me. 

Q. Who was the lawyer you spoke to? 

A. Well, I talked to the guy in Atlantic City. 

Q. Yeah. 

A. Yeah. 

Q. Well, do you understand that if a federal 

immigration court concluded that these State charges 

that you've pled guilty to are what they call aggravated 

felonies, then you would be deported? 

A. Yeah. 

Q. And do you — do you understand that I can't tell 

you — I'm not empowered to tell you with any 

certainty at all what the federal authorities will or will 

not do because of these guilty pleas? 

A. Yes. 

Q. Do you have any desire to postpone the entry of 

this plea today so that you can consult further with an 

attorney who specializes in —

A. No. 

Q. — immigration law? 

A. No, that's my decision now. 
A-1069-20 8

Q. I'm sorry? 

A. That's my decision right now. 

Q. That's your position. 

A. That's my decision. 

Q. That's your decision right now? 

A. Yeah. 

Q. Okay. You don't feel that you need the time to 

consult further with somebody in more detail? 

A. No.

In his certification accompanying his verified petition, defendant avers 

he didn't "have any money" when he "got into trouble" and thus couldn't afford 

"a paid immigration consultation." He certified he called "all the numbers" he 

could find for immigration attorneys, until he "found one who gave [him] a 

free consultation over the phone," who told him he "would not be deported for 

these relatively minor offenses without any jail." Defendant averred he would 

never have pleaded guilty if he understood he was pleading to offenses that 

would make him deportable. He would have instead asked his public defender 

to try and gain his re-admittance to PTI or asked her "to try and obtain a nondeportable plea bargain." Defendant averred he would have rather "taken [his] 

chances at a trial knowing that [he] may have been sent to jail rather than plead 

guilty to crimes that [made him] deportable." 
A-1069-20 9

The judge accepted defendant's guilty plea to third-degree shoplifting 

and proceeded to sentencing. Asked if he wanted to speak on his own behalf, 

defendant declined, saying only that he "apologize[d] for what I did before, 

and it won't happen again." Noting defendant was twenty-two years old with 

one disorderly conviction, the judge found aggravating factor nine, the need to 

deter, and mitigating factor ten, that defendant is amenable to probation. 

Finding the aggravating and mitigating factors in equipoise, the judge 

sentenced defendant to three years' probation on both third-degree convictions 

to run concurrently. The judge advised defendant of his appeal rights and that 

he had five years in which to file a petition for PCR "on either one or both of 

these convictions." Observing that it appeared defendant had "got a lot of 

things going for [him]," the judge said he was "not getting where these 

offenses sprung up," but hoped defendant could maintain his resolve to stay 

out of a courtroom and wished him the best.

Shortly after his sentencing, defendant got an offer from a friend for a 

job in Dallas. Defendant accepted the job and moved there, transferring his 

probation to Texas. His longtime girlfriend followed him six months later. 

Defendant reports he was happy and working hard, meeting all the 

requirements of his probation and feeling he'd gotten his life back on track. 

His guilty pleas to the shoplifting and receiving stolen property charges, 
A-1069-20 10

however, constituted convictions to two crimes of moral turpitude not arising 

out of a single occurrence, rendering him deportable under section 

237(a)(2)(A)(ii) of the Immigration and Nationality Act. See 8 U.S.C. § 

1227(a)(2)(A)(ii). Defendant was taken into ICE custody in December 2014, 

nearly two years after his plea to third-degree shoplifting.

Defendant hired an immigration attorney in Texas, Vinesh Patel, shortly 

after being detained. In a certification submitted in support of defendant's 

petition, Patel explained he was able to secure the government's agreement to 

exercise prosecutorial discretion to terminate defendant's deportation 

proceedings in November 2015, arguing defendant had been rehabilitated and 

was eligible to "readjust status" via his marriage to his long-time girlfriend, a 

United States citizen, while he was in ICE custody. Patel certified he advised 

defendant in 2015 "he eventually could naturalize without fear of being 

removed." Defendant certified Patel "thought that if we just waited out this 

[then-]current presidential administration's immigration policy that [he] could 

become a USC," a United States citizen.

Patel averred he "later learned that this readjustment of status was 

simply not possible" for defendant. Further, Patel certified that in June 2018, 

the federal government issued a memorandum instructing United States 

Citizenship and Immigration Services officials "to place in deportation 
A-1069-20 11

proceedings applicants who are denied naturalization, so long as they are 

removeable in theory for any offense, however minor." Patel claimed this was 

a change in policy, as previously "the Department of Homeland Security would 

not place applicants for naturalization in removal proceedings unless they 

presented egregious public safety threats." Patel averred defendant thus 

became subject to removal again with the June 2018 policy change and

remains so without the vacatur of his two New Jersey convictions. Patel 

further averred that despite his having represented defendant since shortly after 

his arrest by ICE, he did not advise defendant until September 2019 about the 

availability of PCR "to solve his deportation problem."

Following that advice, defendant immediately hired his current New 

Jersey counsel, who filed this petition three months later. The trial court, after 

reviewing the petition and defendant's certification, his wife's and Patel's, from 

which these facts have been taken, as well as the parties' briefs and after 

hearing oral argument, denied the petition as time barred. Although noting the 

pleas were "a little bit out of order" because defendant's guilty plea to the 

receiving stolen property charge made him "in violation of PTI" by operation 

of law, the PCR judge found the judge who took defendant's pleas and 

sentenced him to probation made him aware of the deportation consequences 

of the pleas and, while "the case law says that what the judge says to the 
A-1069-20 12

petitioner doesn't substitute for immigration advice," see State v. Blake, 444 

N.J. Super. 285, 297 (App. Div. 2016), defendant "affirmatively represented to 

[the judge] that he had immigration advice."

The PCR judge found no excusable neglect in defendant "finally 

[getting] an immigration attorney," who allegedly told him "not to pursue 

naturalization until after the [then-]current presidential administration 

concludes." Noting defendant allegedly got that advice in March 2016, 

although the then-current administration did not take office until January 2017, 

the judge found that not "competent evidence."5 The judge also found no 

fundamental injustice because there was no pending removal proceeding and 

the immigration advice given, or not given, did not have "anything to do with a 

determination" of defendant's guilt "as to these two offenses." The judge 

found defendant "allocuted. He stated what needed to be stated, and he was 

found guilty." Because the judge found defendant failed to satisfy the 

standards for relaxing the time restriction for a first petition pursuant 

to Rule 3:22-12(a)(1)(A), she determined she was without jurisdiction to 

5

 Defendant's PCR counsel admits that finding of the court was based on his 

error in his brief in the trial court, and that "defendant never said this." 

Counsel represents the date should have been March 2017. We note there is 

no date attributed to the advice in defendant's certification. 
A-1069-20 13

consider the merits of defendant's petition. See State v. Brown, 455 N.J. 

Super. 460, 470 (App. Div. 2018).

The court further found defendant could not succeed on his application 

to withdraw his plea, because none of the Slater factors could be found in his 

favor.6 The court found defendant had not asserted a colorable claim of 

innocence, and his reason for wishing to withdraw his plea — "frankly that he 

was unaware that he could be deported" — was belied by the plea colloquy and 

"[t]here's not even an allegation as to who that lawyer was" who gave him the 

advice that if he stayed out of jail there would be no immigration 

consequences to the plea. The court further found there was "a plea bargain on 

both of these cases," and that "[i]t would be very difficult for the State to bring 

forward witnesses at this time on these particular allegations."

Defendant appeals, arguing he established excusable neglect, and 

enforcement of the time bar would result in fundamental injustice. He also 

contends he received ineffective assistance of counsel based on the erroneous 

advice he received as to the immigration consequences of his plea; plea 

counsel's failure to correct the mis-advice; plea counsel's failure to contest the 

6

 The four Slater factors are: "(1) whether the defendant has asserted a 

colorable claim of innocence; (2) the nature and strength of defendant's 

reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether 

withdrawal [will] result in unfair prejudice to the State or unfair advantage to 

the accused." 198 N.J. at 157-58.
A-1069-20 14

PTI termination or to attempt to have defendant re-admitted to PTI, and that 

there exists a presumption of prejudice, "or, at the very least, a reasonable 

probability" that but for the errors the result of the proceedings would have 

been different. Finally, defendant contends he "meets the 'manifest injustice' 

four factor balancing test" to withdraw his guilty plea.

As already noted, we agree defendant established excusable neglect for 

his failure to file his petition within five years of his January 2013 convictions. 

Defendant retained Patel shortly after he was placed in ICE custody in 

December 2014. The immigration lawyer obviously represented defendant

zealously in the removal proceedings, successfully securing his release from 

ICE custody and convincing the government to defer prosecution of his 

deportation. But Patel also advised defendant, wrongly, that he could end the 

threat of deportation through naturalization proceedings. It was not until 

September 2019, after the running of the five-year period for filing a petition, 

that Patel advised defendant the only way he could remove the threat of 

deportation was through a PCR proceeding in New Jersey. Upon receipt of 

that advice, defendant retained his current New Jersey counsel the same 

month, who filed this action promptly. 

Based on those facts, we cannot find defendant slept on his rights. 

Indeed, we find the circumstances indistinguishable from those the Court 
A-1069-20 15

deemed excusable neglect in DiFrisco. 187 N.J. at 166 (finding excusable 

neglect based on "defense counsel's candid statement" that "he did not realize 

the full effect" of a decision of the Court favorable to the defendant issued 

during the pendency of the defendant's first PCR proceeding until after review 

of the defendant's first PCR petition was complete). 

Defendant promptly engaged obviously able counsel to assist him in 

contesting his deportation and ending the threat of his removal. That lawyer 

concedes his error in not advising defendant earlier that he needed to file a 

PCR petition in New Jersey. When counsel finally advised defendant he 

needed to file a PCR petition, defendant acted immediately to do so. Given 

those circumstances, we find defendant's failure to file his petition within the 

five-year deadline the result of his excusable neglect. See State v. Milne, 178 

N.J. 486, 492 (2004) (noting "[t]he five-year time limit is not absolute").

As to whether defendant established he would suffer a fundamental 

injustice absent relaxation of the time bar, we are guided by the Court's 

counsel in State v. Afanador that "[t]he court should consider the extent and 

cause of the delay, the prejudice to the State, and the importance of the 

petitioner's claim in determining whether there has been an 'injustice' sufficient 

to relax the time limits" of Rule 3:22-12. 151 N.J. 41, 52 (1997). We have 

already discussed the reasons for the delay — defendant was not aware he'd 
A-1069-20 16

received faulty immigration advice until his arrest by ICE in 2014, and 

although he promptly retained immigration counsel following his detention, 

that lawyer did not advise defendant he needed to file a PCR petition in New 

Jersey until 2019, when defendant did so promptly. The prejudice to the State 

is difficult to assess. Defendant concedes his guilt as to the shoplifting charge, 

so the prejudice to the State is only as to the charge of third-degree receipt of 

stolen property, which may have been difficult for the State to prove when the 

charge was made, absent a confession by the thief that defendant was aware 

the Miata was stolen. The State asserted no specific claim of prejudice, 

relying on only the significant passage of time, a consideration echoed by the 

court. 

Balanced against that difficult to quantify claim of prejudice to the State, 

is defendant's claim that he unwittingly pleaded guilty to two crimes of moral 

turpitude post-Padilla v. Kentucky, 559 U.S. 356 (2010), because his plea 

counsel failed to advise him of the immigration consequences of the pleas and 

to correct what he claims was patently incorrect advice that the pleas would 

have no immigration consequences because he was sentenced to probation 

with no jail time. Defendant claims that based on that incorrect advice, he 

spent a year in ICE detention, and faces the threat he can be deported at any 

time. We conclude that assuming defendant's factual assertions are true —
A-1069-20 17

including that he pleaded guilty to receiving stolen property not because he 

was guilty but because he got erroneous advice about the immigration 

consequences of risking trial and a jail term — enforcement of the time bar 

would be fundamentally unjust.7 See R. 3:22-12(a)(1)(A). 

These were post-Padilla pleas, meaning defendant's plea counsel was 

obligated to "advise her client regarding the risk of deportation." Padilla, 559 

U.S. at 367. The Supreme Court in Padilla made clear that "[w]hen the law is 

not 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." Id. at 369. But the Court also 

held that "when the deportation consequence is truly clear, . . . the duty to give 

correct advice is equally clear." Id. at 357. 

7

 The State asserts on appeal, as it did in the trial court, that defendant's

statement during his first plea colloquy that he "[didn't] have a choice" other 

than to plead guilty, because he "didn't want to risk going to jail," 

demonstrates "consciousness of his guilt and his desire to avoid prison time" 

were his chief motivators in pleading guilty, not avoiding deportation. 

Defendant contends the statement is consistent with the mis-advice he got that 

he could not risk going to jail because going to jail risked deportation. While 

the State will have the opportunity to convince a court of its view of the 

statement in an evidentiary hearing, at this stage of the proceedings, "we 

consider petitioner's contentions indulgently and view the facts asserted by 

him in the light most favorable to him." State v. Cummings, 321 N.J. Super. 

154, 170 (App. Div. 1999). 
A-1069-20 18

Accordingly, it wasn't enough when these pleas were entered for 

defendant's plea counsel to simply avoid giving defendant incorrect advice, or 

to avoid giving him any advice as to the deportation consequences of these 

guilty pleas. See State v. Gaitan, 209 N.J. 339, 356 (2012) (noting the Court in 

Padilla "recognized no distinction between providing affirmative misadvice 

and providing no advice, reasoning that 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'" and 

"'deny a class of clients least able to represent themselves the most 

rudimentary advice on deportation even when it is readily available'" (quoting 

Padilla, 559 U.S. at 370-71)). 

Plea counsel was obligated to determine whether there was a clear 

answer to whether defendant's guilty pleas to third-degree shoplifting and 

third-degree receipt of stolen property were considered crimes of moral 

turpitude — because the law was clear at the time of the pleas that a noncitizen convicted of two crimes of moral turpitude "not arising out of a single 

scheme of criminal misconduct," regardless of whether he went to jail, was 

deportable, 8 U.S.C. § 1227(a)(2)(A)(ii). See Aburoumi, 464 N.J. Super. at

341 (holding that when the "defendant entered his guilty plea in 2015, the 
A-1069-20 19

removal consequence of PTI with an admission of guilt was clear" and thus 

plea counsel was "required to inform defendant of that consequence").

Defendant's PCR counsel insists that when defendant entered his guilty 

pleas in November 2012 and January 2013, the immigration consequences of 

the charges as crimes of moral turpitude were "clear and easily discerned." 

See State v. Castagna, 187 N.J. 293, 314 (2006) (noting a court is to judge the 

reasonableness of a lawyer's actions or inactions as of the time of the conduct). 

Counsel also asserts the advice defendant received from his free telephone 

consult with an attorney in Atlantic City that he would "be fine" so long as he 

"stay[ed] out of jail," was obviously, patently, incorrect and plea counsel had 

an obligation to so advise him.

There is now, of course, no question but that a defendant is entitled to 

effective assistance in the process of negotiating a plea. Missouri v. Frye, 566 

U.S. 134, 144 (2012); Lafler v. Cooper, 566 U.S. 156, 168 (2012) ("If a plea 

bargain has been offered, a defendant has the right to effective assistance of 

counsel in considering whether to accept it."). A claim of ineffective 

assistance of counsel in connection with a plea is measured by the familiar 

two-part Strickland8standard, with the defendant required to demonstrate 

counsel's advice was not "'within the range of competence demanded of 

8

 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). 
A-1069-20 20

attorneys in criminal cases.'" Tollett v. Henderson, 411 U.S. 258, 266 (1973) 

(quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)). "[I]n order to 

satisfy the 'prejudice' requirement, the defendant must show that there is a 

reasonable probability that, but for counsel's errors, he would not have pleaded 

guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 

52, 59 (1985); see also Lee v. United States, 137 S. Ct. 1958, 1968-69 (2017) 

(holding even a petitioner with little chance of prevailing at trial can establish 

prejudice from erroneous immigration advice leading to a guilty plea if 

deportation was the determinative issue for petitioner in plea negotiations). 

Although Padilla and Gaitan make clear plea counsel had to avoid both 

no advice and affirmative mis-advice as to the deportation consequences of the 

proffered pleas, Gaitan, 209 N.J. at 356, the question of whether plea counsel 

had an obligation to correct immigration counsel's incorrect advice has not yet 

been decided in our State, although courts elsewhere have imposed such a duty 

on plea counsel when the mis-advice was clear. See, e.g., United States v. 

Swaby, 855 F.3d 233, 237, 240 (4th Cir. 2017) (holding plea counsel's error in 

supplying immigration counsel with the incorrect criminal statute and failing 

to read the statute to confirm immigration counsel's advice, or both, was

deficient performance); Madrigal-Estrella v. State, 463 P.3d 23, 27, 30 (Or. Ct. 

App.) (explaining if the immigration consequences of the defendant's plea 
A-1069-20 21

were clear and easily ascertainable, then plea counsel was responsible to

ensure the defendant received that advice and could not simply assume

immigration counsel would provide the defendant correct advice), review 

denied, 470 P.3d 363 (Or. 2020). 

We cannot discern from this record whether defendant is correct that 

plea counsel could have easily determined with "only very basic legal 

research" that these pleas would render defendant deportable, and her failure to 

so advise him was inconsistent with prevailing norms of practice in late 2012 

and early 2013. We are convinced, however, defendant has mustered 

sufficient evidence to establish a prima facie claim of both ineffective 

assistance of counsel and prejudice — that is, as a result of his counsel's

alleged failure to render advice about the deportation consequences of the 

proffered guilty pleas and to correct the mis-advice he voiced during the 

second plea colloquy, there is a reasonable probability defendant "'would not 

have pled guilty and would have insisted on going to trial'" on at least one of 

those offenses. State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting

DiFrisco, 137 N.J. at 457).

Because plea counsel's understanding of the law and her advice to 

defendant, if any, about the immigration consequences of his plea lie outside 

the record, as does proof of the prevailing professional norms of practice when 
A-1069-20 22

defendant entered his pleas, an evidentiary hearing is necessary to test 

defendant's assertions of the ineffective assistance of his counsel and resulting 

prejudice. See State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998)

(explaining determinations of ineffective assistance claims based on off-therecord conversations between petitioner and his or her counsel "are best made 

through an evidentiary proceeding with all its explorative benefits, including 

the truth-revealing power which the opportunity to cross-examine bestows").

The court on remand is also to reconsider defendant's motion to 

withdraw his plea under the four-part Slater test. As we explained in 

O'Donnell, although a claim of ineffective assistance of counsel and a motion 

to withdraw a guilty plea are different applications that must be analyzed 

separately, "the two tests may overlap." 435 N.J. Super. at 370 (explaining 

how "[a] defendant may rely on discovery of his or her attorney's 

misinformation about the consequences of a plea" to establish the reasons for 

seeking to withdraw the plea under the second Slater factor as well as to 

establish counsel's representation was not objectively reasonable under the 

first prong of Strickland). Here, defendant's testimony in support of his 

ineffective assistance claim may inform the court's assessment of the first two 

Slater factors — defendant's colorable claim of innocence and the strength of 

his reasons for wishing to withdraw his plea. The court may also hear 
A-1069-20 23

evidence to allow it to test the State's claim of prejudice under the fourth Slater

factor. 

To be clear, we do not suggest by our discussion that defendant has 

established his plea was not knowing and voluntary under Rule 3:9-2, or that 

he received less than competent representation or was in any way prejudiced 

by the representation provided him. We conclude only that he is entitled to 

relaxation of the time bar under the standard established in Rule 3:22-

12(a)(1)(A) and has established the right to present his claims at an evidentiary 

hearing for the court to consider under Strickland and Slater. 

Reversed and remanded. We do not retain jurisdiction.