Opinion
DOCKET NO. A-1342-16T3
02-05-2018
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HIOKA N. MYRIE, Defendant-Appellant.
Justin T. Loughry argued the cause for appellant (Loughry and Lindsay, LLC, attorneys; Justin T. Loughry, on the brief). Arielle E. Katz, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Arielle E. Katz, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Before Judges Fasciale and Moynihan. On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 14-01-0003. Justin T. Loughry argued the cause for appellant (Loughry and Lindsay, LLC, attorneys; Justin T. Loughry, on the brief). Arielle E. Katz, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Arielle E. Katz, of counsel and on the brief). PER CURIAM
Defendant appeals from an October 24, 2016 order denying her petition for post-conviction relief (PCR). On appeal, defendant argues:
POINT IWe agree with defendant that the judge should have conducted an evidentiary hearing before adjudicating the PCR petition. That is so because the judge must make credibility findings as to whether defendant knew about the presumption of imprisonment and related immigration consequences. We therefore reverse and remand, and leave the details of the hearing to the discretion of the judge.
THE PURPOSE OF A PETITION FOR POST CONVICTION RELIEF.
POINT II
A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL MANDATES APPROVAL OF PETITIONER'S REQUEST FOR RELIEF OR, IN THE ALTERNATIVE, AN EVIDENTIARY HEARING.
POINT III
COUNSEL MISINFORMED HIS CLIENT ABOUT MATERIAL CONSEQUENCES OF HER GUILTY PLEA; THESE ACTIONS CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT IV
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, AND THEREBY THE RIGHTS OF DUE PROCESS AND A FAIR TRIAL, WHEN HER TRIAL ATTORNEY MISINFORMED HER REGARDING THE IMMIGRATION CONSEQUENCES OF HER GUILTY PLEA (U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.).
Although having been indicted on two first-degree drug charges, defendant entered an open guilty plea to an amended second-degree conspiracy to distribute cocaine charge, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(b)(1). According to defendant, her plea counsel told her that a presumption of imprisonment was inapplicable because the parties had agreed to treat the guilty plea as a third-degree offense for sentencing purposes. Defendant also maintains her plea counsel represented that she would not be deported. Defendant contends that she would not have pled guilty if she knew the presumption applied or that she would face deportation. After the judge imposed a three-year prison term, immigration authorities filed a detainer.
A defendant is entitled to an evidentiary hearing only when he or she "has presented a prima facie [case] in support of [PCR]," State v. Marshall, 148 N.J. 89, 158 (1997) (first alteration in original) (quoting State v. Preciose, 129 N.J. 451, 462 (1992)), meaning that "the defendant must demonstrate a reasonable likelihood that his or her claim will ultimately succeed on the merits," ibid. Defendant demonstrated that she is entitled to a hearing. After conducting the hearing, the judge should adjudicate the PCR petition anew.
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION