Currently, I represent an individual in connection with an application for post-conviction relief (PCR) in a New Jersey Superior Court. The facts of her particular situation are a little different from most, but like many PCR’s involving non-citizen immigrants, the argument is still based on ineffective assistance of counsel (6th Amendment). There is a also a procedural defect, in that the State seems to have made the defendant’s admission into the PTI program (pre-trial intervention) contingent upon pleading guilty the underlying offense.
Addressing the issues in reverse, I have previously blogged on the illegality of making acceptance into PTI contingent upon guilty pleas. Under normal circumstances, a guilty plea in connection with entry into PTI would not create problems for the defendant, as long as the program was completed. At the end of the program, the charges would be dismissed. The only benefit that the state receives from this type of arrangement is that it already has the guilty plea if the defendant flunks out of PTI.
However, in the case of a non-citizen, this creates huge problems. First, for immigration purposes, a guilty plea given in consideration for acceptance into PTI is still a guilty plea. This means that the non-citizen does not get the benefit of the deferred adjudication and can, under many circumstances, be deported. In my case, prior counsel for my current client had him plead guilty so he would be accepted into PTI. This is not only illegal, but also ineffective assistance of counsel because the offense was a sure thing deportable event.
Secondly, prior counsel did not do the necessary research to understand the immigration consequences of the guilty plea, and gave his client incorrect advise regarding those consequences.
To me this appears to be a winning “Padilla” PCR motion, but we will have to wait and see….