State v. Hernandez-Peralta, ___ N.J. ___ (2025). Justice Wainer Apter’s decision today for a 5-2 Supreme Court majority began by phrasing the issue presented. “In this appeal, we consider 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.” The majority found, based on the particular facts, that counsel was not constitutionally ineffective, reversing the two lower courts. Justice Noriega, joined by Justice Fasciale, dissented.
The facts of this burglary and robbery case, in which defendant had pled guilty, were unusually involved, but Justice Wainer Apter’s summary captured their essence. “Defendant repeatedly represented that he was a U.S. citizen, including to plea counsel [a different public defender than the one who represented him in connection with the subsequent sentencing], the court, and on his plea agreement form. Defendant’s presentence report lacked any clear indication of non-citizenship, and sentencing counsel was informed of no such indication outside of the report. In addition, plea counsel had already informed defendant that his plea could make him subject to deportation if he was not a U.S. citizen, and defendant chose to plead guilty nonetheless.”
In fact, though defendant had been born in Mexico, he said during his plea colloquy that he was a United States citizen and had been “born in New York.” In an interview for his presentence report, defendant said that he “was born in Mexico and moved to New York with his family as a toddler.”
When sentencing counsel asked defendant for his Social Security number which (along with much other information) was missing from the presentence report, defendant said “I don’t recall.” Sentencing counsel found no “red flags” in that response, since “’ most’ of her clients did not have their Social Security numbers memorized.” Defendant did not tell sentencing counsel that, in fact, he had no Social Security number. He was originally sentenced to five years of Recovery Court probation.
However, defendant repeatedly violated that probation, leading to subsequent hearings. At those hearings, defendant again said that he had been born in Mexico but was a United States citizen. He pled guilty to multiple probation violations and was sentenced to five years’ incarceration.
Defendant did not appeal the new sentence but, two years later, filed a petition for post-conviction relief (“PCR”). He asserted that counsel at his original sentencing hearing was constitutionally inadequate for failing to investigate defendant’s citizenship and to advise him that he faced deportation because, in fact, he was not a United States citizen.
The Law Division found sentencing counsel inadequate and held that that inadequacy had prejudiced defendant. As Justice Wainer Apter recounted, “[t]he PCR court found that defendant had been ‘untruthful to [the court] and plea counsel regarding his place of birth,’ but 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],’” and the absence from the presentence report of “citizenship information, Social Security number, driver’s license number, and telephone number, combined with the fact that defendant’s ‘mother [was] not in the country,’ defendant did not ‘have contact with his father,’ and defendant did not have ‘any steady employment,’ all ‘pretty much confirm[ed]’ that defendant was “not a U.S. citizen.” The Appellate Division agreed that sentencing counsel had been inadequate but remanded for determination of the question of prejudice. On further review, the Supreme Court reversed, being “necessarily deferential” to the PCR court’s factual findings but exercising de novo review of the legal issue presented.
After discussing the key effective assistance of counsel cases of Padilla v. Kentucky, 559 U.S. 356 (2010), State v. Gaitan, 209 N.J. 339 (2012), and Strickland v. Washington, 466 U.S. 668 (1984), Justice Wainer Apter disagreed that sentencing counsel had been ineffective. “At the time [she] met defendant and reviewed the presentence report with him, she had already reviewed his plea form, in which defendant had selected ‘Yes’ in response to the question, ‘Are you a citizen of the United States?’ The presentence report contains no information that clearly rebuts that statement, or even reasonably calls it into question. Instead, the information in the report can reasonably be read as consistent with defendant’s statements that he was a U.S. citizen. It therefore did not require sentencing counsel to undertake an investigation beyond asking defendant if he was indeed a U.S. citizen and receiving a response of ‘yes.’”
None of the facts that had led to the contrary result below supported a ruling of ineffectiveness, Justice Wainer Apter said. “[D]efendant’s birthplace of Mexico does not indicate that he was not a U.S. citizen,” as persons born outside the United States may be U.S. citizens if either of their parents is a citizen. The PCR court had misinterpreted, to some extent, facts in the presentence report, and the other facts relied on from that report did not exclude the possibility that defendant could have been a United States citizen.
Nor did the information missing from the presentence report justify the result below. Though “entries for defendant’s driver’s license number, Social Security number, and telephone numbers were left blank[, ] a fair reading of the record reflects that such information likely existed and was simply left out of the report. As to defendant’s Social Security number, when [sentencing counsel] asked defendant what it was, he did not state ‘I don’t have one. He stated that he did not ‘recall’ it. And defendant then included his Social Security number on his PCR petition and testified at the PCR hearing that he had a Social Security number. As to defendant’s driver’s license number, the presentence report indicates that defendant had a driver’s license suspension in 2016, suggesting either that he previously had a driver’s license, or had one at the time of the presentence report but simply did not have the number available. And as to defendant’s telephone number, sentencing counsel stated on the record at sentencing that defendant had a new phone number and would provide it to Probation Services. In any event, in December 2019, lawful permanent residents could obtain Social Security numbers and New Jersey driver’s licenses.”
Additionally, “sentencing counsel testified at the PCR hearing that fields were ‘often’ left blank on presentence reports, and were not ‘inaccurac[ies]’ that would justify delaying a sentencing hearing. And to the extent that specific blank boxes created ambiguity about defendant’s citizenship status, counsel testified that she addressed that ambiguity by asking defendant directly whether he was a United States citizen. He responded, unequivocally, ‘yes.’
In short, “[s]entencing counsel reasonably accepted that defendant was a U.S. citizen based on his repeated assertions that he was. Neither the plea form, nor the presentence report, nor any other information provided to [sentencing counsel] by the time of sentencing clearly called that assertion into question.” And Justice Wainer Apter observed that “no court has found that sentencing counsel has a constitutional duty under Strickland or Padilla to independently verify or investigate a client’s citizenship status beyond asking the client if they are a citizen,” citing decisions from a number of other jurisdictions.
The dissenters stated that merely asking a client a “yes or no” question about citizenship “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. Citizenship is not a binary switch that, once toggled, ends all further inquiry. 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.” Justice Noriega elaborated on that position at some length, also relying extensively on Padilla. But that view did not carry the day.
