Post-Conviction Relief “PCR” is a motion to vacate a prior guilty plea and conviction normally because of constitutional violation. The court will often order an evidentiary hearing to go over the transcripts and plea forms from the original plea as well as hear the merits of the motion and any opposition of the State. If the motion is successful the prior conviction will be vacated and the State, which is often times the County Prosecutor’s Office, can decide whether or not they will bring the charges again. For purposes of an immigration PCR, the constitutional basis to vacate is often that the defendant’s plea was not intelligent, knowing and voluntary because they entered into the plea without being properly advised of the adverse immigration consequences which can include mandatory deportation for any aggravated felony. The advantage of a successful PCR is that it can stop removal proceedings against a non-citizen if the conviction is vacated. However, it is always important to speak with an attorney who is experienced in immigration law as well as criminal defense so you understand any and all potential ramifications. At the Law Offices of William A. Proetta we represent clients for PCR motions throughout New Jersey including Elizabeth, New Brunswick, Jersey City, Paterson, Newark, Edison, and Perth Amboy. To learn more about how we may be able to help you contact us at (732) 450-8300 for a free initial consultation.
New Jersey PCR Attorney
Under the United States Supreme Court case, Padilla vs. Kentucky, 130 S. Ct. 1473 (2010), the court held that defendants need to advised of the immigration consequences that will result from a criminal conviction. If a criminal defense attorney fails to provide the defendant with clear affirmative advice concerning that a potential plea will lead to mandatory deportation then it can be considered by the court that the defendant was denied effective assistance of counsel, which is a violation of the defendant’s constitutional rights under the 6th Amendment. The standard for a post-conviction relief is a two-prong test as set forth in Strickland v. Washington, 466 U.S. 668 (1984). The first prong is whether there was ineffective assistance of counsel and the second prong is that ineffective representation prejudiced the defendant. Motions for post-conviction relief can be very technical and complicated, therefore it is important to consult with an attorney with experienced in handling the interplay between immigration law and criminal defense. For instance, New Jersey law regarding PCR’s is constantly changing and highly specialized especially with new case law such as Chaidez v. United States, where the court decided whether Padilla should be applied retroactively. If you would like to learn more about how our immigration and criminal attorneys can help you, then contact our office at (732) 450-8300 for a free consultation today.
|Legal Permanent Resident||U.S. Visa Holder|
|Aggravated Felony||Crimes Involving Moral Turpitude|
|Removal Hearing||Waiver Hearings|