NJ criminal defense attorneys need to be especially attentive to clients that are facing deportation. In this recent case decided on appeal, the Appellate Division reversed the Post Conviction Relief (PCR) denial of a woman who claims her attorney failed to advise her that her guilty plea could result in her deportation. Summary by Mark Friedman.
State v. Sarah Creque, unpublished opinion, App. Div. Docket No. A-0350-08T4 (November 12, 2009) – Denial of PCR reversed, case remanded for evidentiary hearing. “The Law Division determined that defendant could not possibly prove her allegations of ineffective assistance of counsel because she was deported and could not return to testify.
Her deportation was allegedly a result of being convicted of the crime from which she sought relief…. We conclude that defendant’s written submissions established a prima facie case warranting an evidentiary hearing…
The PCR court must assume contested facts most favorably to defendant and determine whether those facts would entitle defendant to relief from the conviction if they are true…. In this case, defendant Creque certified that her prior attorney told her the guilty plea would not affect her immigration and residency status.
To establish the second part of the Strickland test, she also certified that she would not have pleaded guilty if she knew she might be deported. If true, those facts establish a prima facie case of ineffective assistance of counsel…. The court’s legal error was in viewing the preliminary ruling of whether defendant had established a right to an evidentiary hearing as a conditional ruling.
Because defendant showed a prima facie case of ineffective assistance, she is entitled to an evidentiary hearing, and the court should have so ruled and scheduled a hearing. At that hearing, defense counsel will have the burden of presenting sufficient evidence, with or without defendant, to prove her entitlement to relief…. Nothing in our court rules requires that defendant be present for a PCR hearing.” (Adam W. Toraya, Designated Counsel)