State v. Chung

Decision Date21 May 1986
Citation510 A.2d 72,210 N.J.Super. 427
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Lascelles CHUNG, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Louis C. Esposito, Orange, for defendant-appellant.

Leslie F. Schwartz, Deputy Atty. Gen., for plaintiff-respondent (W. Cary Edwards, Atty. Gen., attorney).

Before Judges KING, O'BRIEN and SIMPSON.

The opinion of the court was delivered by

KING, P.J.A.D.

This case presents a claim that defense counsel was ineffective because he did not properly advise his client on the consequences of a guilty plea. On July 12, 1985 defendant Chung moved before the trial judge to withdraw a guilty plea to possession of marijuana with intent to distribute, on the basis that he had not been properly advised by trial counsel that a probable consequence of his August 30, 1982 guilty plea would be deportation. The motion was opposed by the State and denied by the trial judge.

This is the case history procedurally. On April 20, 1982 Chung was indicted by a Middlesex County Jury on four counts. The indictment charged him in the first count with possession of a controlled dangerous substance, contrary to N.J.S.A. 24:21-20a(4); the second count charged possession of a controlled dangerous substance (CDS) with intent to distribute, contrary to N.J.S.A. 24:21-19a(1); the third count charged possession of a handgun without a permit, contrary to N.J.S.A. 2C:39-5b; the fourth count charged supplying false information to a police officer, contrary to N.J.S.A. 2C:28-4a.

On August 30, 1982 Chung entered a guilty plea before Judge Hamlin. Pursuant to a plea agreement, defendant entered a plea of guilty to count two of the indictment only. The remaining counts were dismissed and the maximum custodial exposure was set at five years. The plea agreement also allowed for appellate review of the trial judge's denial of Chung's suppression motion. R. 3:5-7(d).

On October 12, 1982 Chung was sentenced to eighteen months incarceration at the Middlesex County Adult Correction Center. The denial of defendant's suppression motion was affirmed by the Appellate Division. Chung has completely served his sentence in all respects.

On July 12, 1985 Chung moved to vacate his guilty plea on count two of the indictment on the ground that he had not been advised of possible deportation as a consequence of his plea. Chung sought to reform the plea agreement and asked permission to plead to a different count of the indictment and to be resentenced to time served. Chung's motion was denied on October 16, 1985. A motion to accelerate the disposition of this appeal was granted by this court.

These are the essential facts which led to the indictment, the plea agreement, and the subsequent motion for withdrawal of the guilty plea. Defendant is a non-resident immigrant. He was born in and is a citizen of Jamaica. He came to the United States ten years ago on a now-expired visitor's visa. He has at no time renewed his visitor status nor has he applied for residency status or citizenship.

On July 31, 1981 Chung was stopped in his automobile by a New Jersey State Trooper on the New Jersey Turnpike in Woodbridge Township. A search of the car uncovered 261.5 pounds of marijuana and a semiautomatic weapon. As noted, Chung was sentenced to and has served his 18-month term. Because of this conviction for possession of a CDS with the intent to distribute, Chung is presently the target of a deportation proceeding initiated by the Bureau of Immigration and Naturalization under 8 U.S.C.A. § 1251(a)(11) which states that deportation is a potential collateral consequence for aliens "convicted of a violation of ... any law or regulation relating to the illicit possession of or traffic in narcotic drugs or marihuana...."

Under New Jersey law, prior to accepting a guilty plea the judge must be satisfied that there is a factual basis for the plea and that the plea is made voluntarily with an understanding of the nature of the charge and the consequences of the plea. R. 3:9-2. After a plea has been accepted, a defendant's "claim to be relieved of its consequence must be weighed against the strong interests of the State in its finality." State v. Taylor, 80 N.J. 353, 362, 403 A.2d 889 (1979). Following sentencing, a motion to withdraw a guilty plea is only granted upon a showing of manifest injustice. R. 3:21-1. Moreover, where the plea is entered pursuant to a plea agreement, defendant's burden of establishing a plausible basis for vacation of his plea is heavier. State v. Rodriquez, 179 N.J.Super. 129, 136, 430 A.2d 957 (App.Div.1981).

Factors pertinent to the determination of whether a defendant may withdraw a guilty plea include: the materiality of the mistake or omission, the resulting prejudice to defendant, the guilt of defendant, and the manner of entry of the plea. State v. Rodriguez, 179 N.J.Super. at 135-136, 430 A.2d 957. "To be material a mistake must relate to the penal consequences of a plea. A mistake as to a collateral consequence, while it may have a significant effect upon a defendant, is not material." State v. Riggins, 191 N.J.Super. 352, 355, 466 A.2d 981 (Law Div.1983). The effect of defendant's plea on his immigration status has been considered a collateral consequence. State v. Reid, 148 N.J.Super. 263, 372 A.2d 626 (App.Div.), cert. den. 75 N.J. 520, 384 A.2d 500 (1977). See also United States v. Sambro, 454 F.2d 918 (D.C.Cir.1971); United States v. Parrino, 212 F.2d 919 (2nd Cir.1954), cert. den. 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663 (1954); Tafoya v. State, 500 P.2d 247 (Alaska Sup.Ct.1972). Manifest injustice is the general standard for withdrawal of a plea under R. 3:21-1. We are convinced that in this case no manifest injustice has been done to defendant Chung and affirm.

This case, however, does raise a novel issue in this jurisdiction regarding the effective assistance of counsel. This issue is gaining in importance in light of the increasing number of immigrants, legal and illegal, coming daily to our state and to the country as a whole. Several states have recently adopted legislation or issued judicial decisions in an attempt to clarify the issue of an alien's right to effective assistance of counsel in criminal proceedings. Thus, a review of New Jersey law on this issue and a review of the newly-emerging body of case law from other jurisdictions is presented.

The first question is whether it is the responsibility of the trial judge to inform a defendant of the possible consequence of deportation. New Jersey, unlike some other states, does not have any statute or rule requiring a judge to advise an alien defendant of the possible effects of a plea on his immigration status. Although Chung does not assert here that the judge should shoulder the burden of advising the alien of immigration ramifications before accepting his plea, it is interesting to note that since 1977 five states have enacted such legislation. See Cal.Penal Code § 1016.5; Mass.Gen.Laws Ann. ch. 278, § 29D; Ore.Rev.Stat. § 135.385; Conn.Gen.Stat., § 54-1j; Rev.Code Wash. § 10-40-200. These statutes demonstrate a growing awareness in some states that immigration consequences of criminal convictions are severe and that court protection for aliens is thought by some as necessary to fundamental fairness.

Three states' statutes, California, Massachusetts and Connecticut status provide remedies if the alien defendant is not advised. For example, in California if an alien is not advised and can demonstrate that the conviction will have immigration ramifications, the court must allow withdrawal of the guilty plea without requiring a claim or showing of innocence. People v. Guzman, 116 Cal.App.3d 186, 172 Cal.Rptr. 34 (1981).

We are of the opinion that it is not the present responsibility of a New Jersey judge to advise a defendant of federal deportation consequences at the time of the taking of the guilty plea. Moreover, the trial judge's omission of this advice does not render a defendant's plea involuntary. In this particular case we follow the rule stated in State v. Reid, 148 N.J.Super. 263, 372 A.2d 626 (App.Div.1977), cert. den. 75 N.J. 520, 384 A.2d 500 (1977), where we held that the judge has no duty to inform a defendant of the collateral consequence of deportation, but only of the penal consequences of the plea.

Deportation is a potential collateral consequence of certain convictions, subject to the immigration laws. See 8 U.S.C.A. § 1251(a)(11). Deportation is imposed by "another agency over which the trial judge has no control and for which he has no responsibility." Michel v. U.S., 507 F.2d 461, 465 (2d Cir.1974). Furthermore, it is generally recognized that a trial judge's failure to inform a pleading defendant of the potential collateral consequences does not invalidate his plea. Accord Edwards v. State, 393 So.2d 597 (Fla.App.1981); Fruchtman v. Kenton, 531 F.2d 946 (9th Cir.1976); Michel v. U.S., 507 F.2d 461, 465 (2d Cir.1974); Tindall v. U.S., 469 F.2d 92 (5th Cir.1972); Hutchison v. U.S., 450 F.2d 930 (10th Cir.1971); Ladner v. Henderson, 438 F.2d 638 (5th Cir.1971).

The second question is whether an attorney has an obligation to advise clients of potential collateral consequences of a guilty plea. Specifically, defendant argues that the failure of an attorney to inform an alien of the possibility of deportation constitutes constitutionally ineffective assistance of counsel requiring a vacation of the guilty plea.

The usual standards to be employed in evaluating a claim that a defendant's conviction should be overturned due to ineffective assistance of counsel, were set forth by Justice O'Connor in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland the Court stated that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper...

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