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The Law Office of Randolph H. Wolf Entitled to Evidentiary Hearing in Post-Conviction Relief Case

September 3, 2012

The Law Office of Randolph H. Wolf Entitled to Evidentiary Hearing in Post-Conviction Relief Case

In June, the Law Office of Randolph H. Wolf posted a blog about a recent Petition for Post-Conviction Relief that the firm had filed on behalf of an individual who faced deportation from the United States as a result of two guilty pleas that he had entered years earlier.  See previous post here: http://www.randolphwolf.com/blog/deportee-false-information-immigration-consequences/.

As a recap, Mr. Wolf argued that the individual’s counsel not only failed to affirmatively inform him of the immigration consequences of his guilty pleas in violation of Padilla v. Kentucky, 130 S. Ct. 1473 (2010), but that he also provided the individual with false and misleading information about the immigration consequences of his guilty pleas, in violation of State v. Nunez-Valdez, 200 N.J. 129 (2009).

In support of his position, Mr. Wolf pointed out that, when asked about his nationality in his pre-sentence report, the defendant had responded that he was Jamaican.  Thus, defense counsel knew or had reason to know that the defendant was an immigrant. Mr. Wolf noted that Question 17 on the plea forms for both accusations asked:

17. Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?

In response to this question, however, the individual’s attorney circled “Not Applicable.” By doing so, Mr. Wolf argued, defense counsel provided the individual with false or misleading information regarding the immigration consequences of his guilty pleas.

The State argued that the defendant’s petition was time barred pursuant to R. 3:22-12(a), which provides that PCR petitions should be filed within five years of the judgment.  In response, Mr. Wolf argued that the defendant’s delay in filing his petition was excusable.  He argued out that it was not until June of 2011 (when ICE served the defendant with removal documents) that the defendant knew the immigration consequences of his guilty pleas.  Additionally, Mr. Wolf noted that the case law that the defendant’s PCR petition relied on – Nunez-Valdez – was not decided until 2009.  Thus, he argued, because the defendant was not aware that he could be deported by virtue of his guilty pleas until 2011 and because a basis in law did not exist for the defendant’s PCR petition until 2009, the PCR petition was not time barred.

The court found that Mr. Wolf had presented a prima facie case that defense counsel provided the defendant with misinformation regarding the immigration consequences of his guilty pleas.  Thus, the court set the matter down for an evidentiary hearing, at which time the court will hear the evidence and determine whether or not the defendant’s petition for post-conviction relief should be granted.

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