*1 JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW HEITZMAN, WILLIAM C. DEFENDANT-APPELLANT. Argued July March 198 7 Decided 1987. appellant (Marinari A. argued Robert Farkas the cause for Farkas, attorneys). & General, Deputy Attorney K. Calloway, argued
Linda (W. Edwards, Jr., respondent cause Cary Attorney General Boruch, Jersey, attorney; Deputy Attorney New Gerard General, brief). on the
PER CURIAM. defendant, biologist Department of
In then a with the Protection, possession of mari pleaded Environmental two-years juana intent to He was sentenced to distribute. days County time a condition there probation, with 180 Jail as Division, judge dissenting, one affirmed. It Appellate of. The (1) there was no factual rejected defendant’s contentions (2) plea, and the court should have forewarned for the basis public employment. potential of his loss of State (1986). Heitzman, N.J.Super. 617 2C:51-2, statute, public the forfeiture of A mandates N.J.S.A. position any person convicted of a crime of the third office or argues public that forfeiture of degree or above. Defendant “consequences plea” employment of the of the that the is one duty had a to determine was within defendant’s under- Court accepted. The standing was See R. 3:9-2. when accepted that contention. dissenter below majority opinion substantially on the basis of the We affirm Division, need Appellate in which held that “defendant be of his and not the only penal informed of the private consequences, as loss of or em- collateral such status, voting rights, possible immigration ployment, effect on discharge possible suspension, auto license dishonorable N.J.Super. at 622. Of military, anything else.” 209 course, to inform a defend- a trial court would be well advised consequences of which the court be ant of aware, as error the failure to do so cannot be viewed but vacating requiring proceedings that could lead to a further plea. Affirmed. HANDLER, CLIFFORD, POLLOCK
Justices opinion. join in this GARIBALDI Justices O’HERN and STEIN separate have filed a opinion. concurring separate
Chief Justice WILENTZ has dissenting filed a opinion. JJ., STEIN, concurring.
O’HERN judgment We concur of the Although Court. issue, majority does not reach the expressly recognize would right this defendant’s to move to guilty plea withdraw his “to injustice,” pursuant correct a manifest to Rule 3:21-1. Defend- ant asserts that he was advised counsel that there would no employment adverse on his aas of his *3 guilty plea. Moreover, employment-forfeiture statute itself ambiguous is respect applies to whether it to a conviction Dangerous Act, under the Controlled Substances N.J.S.A. (the Act). 24:21-1 -53 2C:51-2a(l) requires to C.D.S. N.J.S.A. of public forfeiture or employment by office an individual ** * under of “convicted the laws this State of a of crime * * degree However, 24:21-19b(3) third *.” above N.J.S.A. 24:21-20a(4) classify the offenses for which was high indicted as misdemeanors. While N.J.S.A. 2C:43-lb equates third-degree high pur- crimes and misdemeanors for poses sentencing, provision expressly of that 24 excludes Title Although unlikely offenses from its reach. is it Legislature intentionally excluded of violators Act C.D.S. employment-forfeiture provision Code, from the of the issue is not before us and not previously adjudicated. has been
We concur with the judge Court’s conclusion the trial required only penal consequences advise defendants of the of Nevertheless, guilty plea. a the circumstances of this lead case precluded us to conclude that defendant should not be obtaining relief under Rule 3:21-1. State v. 80 Taylor, See 353, (1979). N.J. 364-65
606
WILENTZ, C.J., dissenting. Judge given by reasons substantially for the
I dissent required to advise should be a court Simpson below. Whether guilty plea should consequences of a certain defendant of of those characterizations and irrelevant depend on ill-defined 748, 742, States, 397 U.S. Brady v. United consequences. See (1970) (“Waivers 747, 1463, 1468, 756 25 L.Ed.2d 90 S.Ct. sufficient aware ... done with rights must be constitutional likely consequences.” circumstances ness of the relevant consequences are if the omitted)). It matters little (footnote their is dev in fact or collateral when called indirect employment under N.J.S.A. public astating. The loss penal conse severe than actually more can 2C:51-2 Riggins, 191 N.J.Su guilty. E.g., State v. quences of unemploy Div.1983)(defendant guilty to (Law pleaded per. 352 subjected was not fraud; fact that defendant despite the ment public lose incarceration, that she would not advised she was harshness of forfei entering plea). The her employment when underestimated. See must not be public employment ture of 264, 260, 207, 216, 247 N.E.2d Rosenberg, N. Y.2d Hogan v. 424, (1969) (“[A]n individual convicted 429-30 299 N. Y.S.2d consequence[ of very felony serious ] suffers ”), grounds, on other ... rev’d of all offices ... forfeiture 1886, York, 26 L.Ed.2d 90 S.Ct. v. New U.S. Baldwin deportation, even (1970). possibility of Similarly, the Chung, consequence, see State as a collateral viewed obviously can have a severe (App.Div.1986), N.J.Super. *4 Padilla, Ill.App.3d People life. v. person’s on a 1182, 1185(1986) 525, (deporta 297, 522, 502 N.E.2d 104 Ill.Dec. and equivalent of banishment” “the tion has been deemed omitted)); (citations of exile” equivalent “a life sentence 500, 541, 496, Correa, 485 N.E. 92 Ill.Dec. People 108 Ill.2d collateral, is none (1985) although (“Deportation, 2d theless, In most cases this collateral consequence____ drastic a imposed by the penalty than the consequence is more severe omitted)); (citation Edwards v. plea.” response to the court State, (Fla.Dist.Ct.App.) (“[L]abelling the 2d 393 So. significance. consequence not diminish its as collateral does Indeed, deportation recognized penalty the of has been as often consequences may the flow far more extreme than direct which den., offense.”), 2d a of to an 402 So. review (Fla.1981). particular a Whether to advise defendant of consequence balancing severity the of by should be determined burden, consequence against judicial any, requiring the the That own the court to tell defendant about it. defendant’s why consequence him no counsel should advise of this reason could made the court should not: same observation require courts to tell defendant everything about that we now accepting a counsel advise him of before also should —his may things. these Nor is there real risk that the court accuracy: less than total where state with certain, consequences absolutely can indicate are not court uncertainty and ask defendant if he wishes to consult counsel. having identified two
There also be a concern that (loss deportation) consequences employment and they substantial, plead guilty will claim that are those who consequences other collateral must be informed of numerous making intelligent plea. proposed an The rule here does before all require judiciary independent do research on a every plea, that indeed would be possible advantages sufficient to overcome disclosure. burden consequences generally known required All that is is that those have substantially If adverse must be disclosed. we rule enough in ourselves to fashion new because confidence change, should have are it is a reasonable we convinced keeping capable of enough to believe we will remain confidence rule reasonable. (N.J. apparently the offense is covered this Where statute 2C:51-2(a)(l) (2)), then, sentencing, the court before S.A. if it employer, name his is a should ask defendant to will entity, him that his conviction the court should advise *5 608
automatically cost job. any him his If the court entertains and, consequence doubt about that it state should so event, ask if defendant he understands and he to wants clearly consult with is counsel. This fifteen-second burden in assuring worth benefit of the fairness it achieves that consequences are guilty plea. defendants aware of their cruelty It borders on not to make someone aware of such consequences easily. disastrous it can be when done so It justness judicial system.1 diminishes the of our guilty need fear go We that the will free because of this does, ruling. All it applicable, give whenever it is plea. to the chance withdraw a If he takes option, he will either into bargain go enter a new obviously trial. There is some risk that in some ease witness may disappear in might the meantime —of course it be a de- prosecution possibility fense witness as well as a witness. That alone, however, has never from adopting deterred us new rulings, or amending revising existing rulings, that afford protection Furthermore, needed for defendants. any ruling will only benefit defendant before Court and those others whose appeals pending: provide grounds it post- will not for relief, judgment system continually retry, because “the cannot reevaluate, or prior resentence all those under convicted laws every changed.” Biegenwald, time that law is State 106N.J. (1987); DeSanto, (Law N.J.Super. State v. Div.1978) (in application relief, post-conviction court denied application modifying merger retroactive of rule offenses). designed form, I would also revise the LR-27 to advise defend presently ants of certain of their to include this conse particular as well as If quence for some potential deportation. reason —that I cannot fathom —it continues to be the conclusion this Court judiciary that the is not to advise such defendants of required consequences, it should do as a matter of fundamental fairness. We are bound in this matter good suggest together our sense and our conscience. I only call they
for whatever rule or revisions are this end. practice necessary accomplish *6 reverse, giving option
I would therefore standing withdrawing his trial.
For —Chief Justice WILENTZ—1. reversal HANDLER, CLIFFORD, For —Justices affirmance O’HERN, POLLOCK, GARIBALDI and STEIN—6. PLAINTIFF-APPELLANT, JERSEY, NEW v. LOIS STATE OF SANDERS, SANDERS AND DONALD DEFEND ANTS-RESPONDENTS. July 1987. Argued March 198 7 Decided