Case Law Post Conviction Relief, Courts Warning RE: Deportation Not Sufficient

On Monday, a New Jersey State Appeals Court decided State v Gaitan. The holding in that case is fairly straight forward. The trial court's voir dire of the defendant regarding his understanding of the plea form and the possible immigration consequences does not relieve counsel of his duty to provide effective assistance of counsel by properly advising his client of said consequences. Therefore, the defendant in Gaitan was entitled to an evidentiary hearing to determine if counsel had properly advised him of the immigration consequences of the plea. Interestingly enough, the Court tangentially addressed a hot post-conviction relief issue, retroactive application of Padilla. The Court stated that the requirement to so advise to apply retroactively and not just to cases in the pipeline.

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