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NJ Criminal Defendant Claims Attorney Failed to Advise of Deportation

12
Aug
2010

by in Criminal Appeals

State v. Jaime Calero, unpublished opinion, App. Div. Docket No. A-6266-08T4 (June 22, 2010) – Denial of PCR reversed, case remanded for evidentiary hearing. “With respect to defendant’s allegations that his attorney pressured him into naming the wrong person [as the man he struck], thus obviating the court’s finding that he pled guilty freely and voluntarily, the PCR judge found that defendant’s claim lacked merit….

Here, we are satisfied that defendant’s claims required further exploration in an evidentiary hearing because, if in fact defense counsel pressured defendant into pleading guilty to assaulting a person other than the individual identified as the victim in the indictment, his guilty plea cannot stand…. we are satisfied that the record does not support the PCR court’s finding that defendant was not denied his constitutional right to effective assistance of counsel when his attorney allegedly gave him erroneous advice that his guilty plea would not result in his deportation.

Defendant’s answer on the plea form, which indicated that he understood that by pleading guilty he was subject to deportation, although probative, is not dispositive and cannot form the only basis for the court’s rejection of his claim of ineffective assistance of counsel. As is the case with defendant’s allegation of attorney misconduct, the PCR court must decide the question of defendant’s immigration status from the record developed at an evidentiary hearing.”

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