281 A.3d 288
N.J. Super. Ct. App. Div.2022Background
- Victor Alvarez, a lawful permanent resident, was indicted for first- and second-degree sexual assault in 2018; the State offered a plea (probation) to a fourth-degree or third-degree charge if he pleaded guilty.
- Plea counsel advised Alvarez to consult immigration counsel; Alvarez retained an immigration lawyer who (based on a mistaken belief that a 2016 New York conviction was a crime of moral turpitude) advised the plea would likely trigger deportation.\
- Relying on that advice, Alvarez rejected the plea, went to trial, and was convicted of first-degree aggravated sexual assault; he received a 15-year NERA sentence and faces deportation on release.\
- Alvarez filed a post-conviction relief (PCR) petition claiming ineffective assistance because plea counsel and the consulted immigration lawyer gave incorrect immigration advice; he asserted he would have accepted the plea if properly advised.\
- The PCR court dismissed without an evidentiary hearing, finding plea counsel fulfilled Padilla obligations by referring Alvarez to immigration counsel and that the immigration attorney was not counsel of record.\
- The Appellate Division affirmed, holding Alvarez cannot show prejudice under Strickland/Lafler because, given his trial testimony asserting innocence, he could not have lawfully entered the pleaded-to offenses without perjuring himself (Taccetta bar).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Alvarez) | Held |
|---|---|---|---|
| 1. Was plea counsel ineffective for failing to correct immigration counsel's factual error about Alvarez's prior NY conviction? | Plea counsel satisfied Padilla by advising consultation with immigration counsel; not responsible for immigration counsel's error. | Plea counsel was ineffective for failing to correct a factual mistake within his knowledge in the written advisement. | Not resolved on deficient-performance prong; court disposed on prejudice grounds (no prejudice). |
| 2. Can ineffective-assistance liability attach to an immigration lawyer who did not appear in the criminal case or be imputed to plea counsel as "co-plea counsel"? | Immigration counsel was not counsel of record; no authority requires plea counsel to police independent immigration lawyers. | The retained immigration lawyer effectively functioned as co-plea counsel; his error should be attributable and triggers Sixth Amendment review. | Court declined to decide unsettled right to effective assistance from non–counsel-of-record; left open but found no relief due to lack of prejudice. |
| 3. Did Alvarez prove prejudice under Strickland/Lafler (that he would have accepted the plea, court would have accepted it, and sentence would have been less severe)? | The State argued Alvarez cannot show the court would have accepted a plea inconsistent with his trial testimony. | Alvarez argued he would have accepted the plea but for incorrect immigration advice and thus was prejudiced. | Held no prejudice: under State v. Taccetta, a defendant who maintains innocence cannot lawfully plead guilty to offenses that contradict sworn trial testimony, so Alvarez could not have demonstrated the court would accept such a plea. |
| 4. Did Alvarez's trial testimony preclude him from establishing a factual basis necessary to plead to criminal sexual contact or criminal restraint (i.e., would plea require perjury)? | Based on Alvarez's sworn trial testimony of consensual sexual activity and safety-motivated restraint, he could not truthfully plead to those offenses. | Alvarez contended his trial testimony did not foreclose accepting a reduced plea and that he could have stated facts supporting a plea. | Held: Alvarez's testimony would have required him to perjure himself to enter plea; Taccetta bars relief, so no prejudice. |
Key Cases Cited
- Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise regarding deportation consequences of a plea)
- Lafler v. Cooper, 566 U.S. 156 (2012) (prejudice standard when ineffective advice leads a defendant to reject a plea)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- State v. Taccetta, 200 N.J. 183 (2009) (a defendant asserting innocence cannot enter a guilty plea that would require perjury)
- Nix v. Whiteside, 475 U.S. 157 (1986) (no right to counsel who cooperates with planned perjury; counsel's refusal to present perjured testimony does not establish prejudice)
- State v. Campfield, 213 N.J. 218 (2013) (trial court must be satisfied the defendant's own statements supply a factual basis for a guilty plea)