Say “Yes”

From the headnotes of a decision issued today by the New Jersey Supreme Court reversed the grant of relief based on ineffective assistance of counsel where the client had answered “yes” when counsel asked if he was a U.S. citizen.

In this appeal, the Court considers whether sentencing counsel was constitutionally ineffective for failing to investigate defendant’s citizenship status beyond asking him if he was a United States citizen and receiving an unequivocal “yes,” and therefore not advising him that his plea could make him subject to deportation.

Here

In July 2022, defendant filed a petition for post-conviction relief (PCR), alleging ineffective assistance of counsel because he was “not properly informed of the immigration consequences of [his] plea.” The PCR court held evidentiary hearings during which defendant, his plea counsel, and Wentworth testified. The PCR court granted defendant’s petition, concluding that plea counsel was effective but sentencing counsel was not. The PCR court found that defendant’s untruthfulness “did not relieve sentencing counsel of the obligation to investigate the discrepancies between his claim to be a U.S. citizen and the contrary information presented in the [presentence report].” The PCR court also concluded that defendant established he had been prejudiced by sentencing counsel’s deficient performance under Strickland v. Washington, 466 U.S. 668 (1984), because defendant proved “to a reasonable probability that he would have rejected the State’s plea offer and not pled guilty had he been properly advised of the adverse immigration consequences.” The Appellate Division affirmed in part and remanded in part. The appellate court agreed that Wentworth “failed to meet her affirmative duty to advise defendant that deportation was a clear consequence of his guilty plea” but determined, on the prejudice prong, that a remand was necessary for the PCR court to consider whether defendant would be entitled to withdraw his plea. The Court granted the State’s motion for leave to appeal. 257 N.J. 599 (2024).

HELD: Under the circumstances presented here, sentencing counsel was not constitutionally ineffective because her performance was not deficient…

REVERSED and REMANDED to the PCR court.

JUSTICE NORIEGA, dissenting, expresses the view that defendant’s plea should be vacated. Justice Noriega explains that Padilla imposes an affirmative duty on counsel to advise noncitizen clients of the immigration consequences of their guilty plea when the consequence is truly succinct, clear, and straightforward — an obligation that cannot be discharged through the overly broad, standalone question: “Are you a U.S. citizen?” In Justice Noriega’s view, a simple yes-or-no citizenship question, without further investigation or discussion, is constitutionally deficient for two reasons: first, it assumes the client fully understands their own immigration status and its legal significance; second, it abdicates counsel’s duty to investigate and advise where necessary. Justice Noriega explains that, just as it would be ineffective for an attorney to simply ask, “Do you understand the plea?” it is equally insufficient to ask about a client’s citizenship without making any further efforts to confirm that status or advise on immigration consequences. To do so is to treat Padilla as an administrative formality rather than a mandate for effective representation, Justice Noriega writes.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRE-LOUIS, and HOFFMAN join in JUSTICE WAINER APTER’s opinion. JUSTICE NORIEGA filed a dissent, in which JUSTICE FASCIALE joins.

(Mike Frisch)