NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Paul A. Appiah appeals from the denial of his application for post-conviction relief (PCR) following his 2008 guilty plea to third-degree trademark counterfeiting, N.J.S.A. 2C:21-32(c). We vacate and remand for a hearing consistent with this opinion.

I.

Defendant, who has permanent resident status, immigrated from Ghana in 1996. In 2007, he operated a store called "Blazin Stuff Sportswear," where he sold counterfeit Nike sneakers, among other things. He was caught through an undercover operation and indicted on one count of third-degree trademark counterfeiting. In 2008, defendant pled guilty based upon a negotiated plea agreement. He received a probationary sentence of five years conditioned on serving 364 days in jail, which could be served through a daily community service program. This sentence was to run concurrently with other sentences imposed for violating probation under two prior convictions.1

Prior to pleading guilty, defendant was presented with and signed the standard plea form. He answered "yes" to question seventeen, which provided, "Do you understand that if you are not a United States citizen or national, you may be deported by virtue of your plea of guilty?"

At the plea hearing, the judge inquired whether there had been any discussion about immigration ramifications. The prosecutor responded,

During the plea hearing, the court inquired of defendant regarding the plea agreement form. Defendant agreed his attorney had gone over the form with him and the information he provided was correct. Defendant acknowledged there were no other representations made to him. Defendant then pled guilty to third-degree trademark counterfeiting.

At the sentencing, the court raised the issue of deportation, advising the defendant that if he committed another violation of probation, "you are going to state prison and then you will undoubtedly be deported." At another point in the sentencing hearing, the court made clear that if he committed future violations of the law, defendant ran the risk of being deported back to Ghana.

Defendant claims that after he served the jail-time portion of his sentence, he was taken into custody by Immigration and Customs Enforcement where he learned, for the first time, the 2008 guilty plea exposed him to deportation as an "aggravated felony" under 8 U.S.C.A. § 1101(a)(43)(R). Defendant filed this PCR application in February 2011, alleging that his attorney failed to advise him that by pleading guilty, he could be deported. He said he was not advised to consult with an immigration attorney regarding the consequences of his plea.

The PCR judge, who also had taken the plea and imposed sentence, denied defendant's application in a written decision dated January 25, 2013 without oral argument. He found defendant had not demonstrated a prima facie case of ineffective assistance of counsel. The judge noted that in 2008, defendant's attorney was under no duty to advise him about the consequences of deportation, but had done so anyway by reviewing the guilty plea form with defendant. The court concluded the information from the prosecutor "had no bearing on the Petitioner's decision to plead guilty because his attorney had already advised him that he may be deported as a result of his guilty plea." The PCR court also pointed out defendant's prior conviction for the same offense in 2006.

On appeal defendant raises the following arguments:

We agree with both points and thus vacate the denial and remand for a hearing consistent with this opinion.

II.

The petition for PCR provides "a built-in `safeguard that ensures that a defendant was not unjustly convicted.'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting State v. McQuaid, 147 N.J. 464, 482 (1997)). An accused has the right to effective assistance of counsel under both the Sixth Amendment to the United States Constitution, Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), and under Article I, ¶ 10 of the New Jersey Constitution. Nash, supra, 212 N.J. at 541; State v. Fritz, 105 N.J. 42, 58 (1987). To establish a prima facie case of ineffective assistance, a defendant must show that counsel made an error "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." State v. O'Neil, 219 N.J. 598, 611 (2014) (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Counsel's representation must be reasonable under prevailing professional norms. Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

Defendant also must show the deficient performance by counsel actually prejudiced the accused's defense. Id. at 687; see also Fritz, supra, 105 N.J. at 58. In the plea bargain context, a defendant must prove "that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial." State v. Gaitan, 209 N.J. 339, 351 (quotations omitted) (alteration in original).

The nub of defendant's PCR application is that his attorney failed to advise him the guilty plea could result in deportation and failed to correct the prosecutor's error about the conviction having no deportation consequences. Since 2010 when the Supreme Court of the United States decided Padilla v. Kentucky, 559 U.S. 356, 374, 130 S.Ct. 1473, 1486, 176 L.Ed. 2d 284, 299 (2010), it has been clear the Sixth Amendment imposes an affirmative obligation on counsel to advise their clients about the potential risks of deportation arising from a guilty plea. "The Court in Padilla concluded that counsel is duty-bound to provide a client `with available advice about an issue like deportation' and declared that `the failure to do so' satisfies the attorney-deficiency prong in Strickland's analysis." Gaitan, supra, 209 N.J. at 356 (quoting Padilla, supra, 559 U.S. at 371, 130 S.Ct. at 1484, 176 L. Ed. 2d at 297).

Although the Court in Gaitan found that requirement was a new constitutional rule of law not entitled to retroactive application, the Court also reaffirmed that an ineffective assistance of counsel claim could be premised on counsel's false or affirmatively misleading advice about the immigration consequences of a plea. Id. at 371. Citing extensively to State v. Nuñez-Valdéz, 200 N.J. 129 (2009), where defendant had been misinformed about the immigration consequences of a plea, the Court described Nuñez-Valdéz as holding, "under the state constitutional right to counsel, an ineffective assistance of counsel claim could be based on the provision of false and affirmatively misleading advice about a plea to an offense that constituted an aggravated felony under federal immigration law that therefore would trigger mandatory deportation." Gaitan, supra, 209 N.J. at 354.

In the present case, defendant pled guilty and was sentenced in 2008, which was prior to the 2009 decision in Nuñez-Valdéz. However, even before 2009, "it was hardly revolutionary under New Jersey law that an attorney could not actually give wrong or inaccurate information about immigration consequences of a guilty plea without risking an assertion of having provided ineffective assistance." Id. at 352. Prior cases such as State v. Chung, 210 N.J.Super. 427, 434-35 (App. Div. 1986) (finding no ineffective assistance because there was no actual misrepresentation), and State v. Garcia, 320 N.J.Super. 332, 339-40 (App. Div. 1999) (misinformation could result in a claim of ineffective assistance of counsel), made clear that incorrect advice could support the deficient performance portion of an ineffective assistance of counsel claim.

Here, the PCR court found that although counsel had no obligation in 2008 to advise defendant on immigration, defendant's attorney had advised him about it, nevertheless. To the PCR court, his counsel's advice that he might be deported was enough to simply discount any possible reliance by defendant on the prosecutor's misstatement. We disagree and remand for a hearing. Having made the finding that counsel advised defendant, it was incumbent upon counsel to advise correctly cf. Nuñez-Valdéz, supra, 200 N.J. at 143.

We also agree with defendant that the court erred by not conducting oral argument. In State v. Parker, 212 N.J. 269, 282 (2012), the Court made clear that if the PCR court determines to dispense with oral argument, it must provide a statement of reasons explaining why it deemed argument unnecessary. Id. at 282. Here, there was no explanation why oral argument was not provided. Also, oral argument would have furthered the goals and purposes of the post-conviction procedures by exploring defendant's claim of erroneous advice.2 Ibid.

We are mindful that a claim of ineffective assistance of counsel rests on more than the failure of counsel to meet certain objective norms and that it is incumbent upon defendant to also prove by a preponderance of the evidence that he was prejudiced by counsel's actions or inactions. In reversing for an evidentiary hearing, we make no judgment about the defendant's ability to succeed. Rather, we remand because defendant's claim he was misinformed about the consequence of deportation was evidenced in the record of the plea. On remand, the court should consider at the evidentiary hearing the information about immigration discussed at the plea and sentencing; counsel's advice on immigration consequences; whether, given the executed plea agreement, the defendant relied on the statement of the prosecutor; whether the plea actually is the basis for deportation efforts; and whether defendant has shown prejudice.

On remand the PCR court also should consider State v. Slater, 198 N.J. 145, 154-55 (2009), and the factors mentioned there. Defendant requested to vacate or withdraw his guilty plea in his PCR application. This request was not addressed by the PCR court. In State v. O'Donnell, 435 N.J.Super. 351, 368 (App. Div. 2014), where the defendant's application requested post-conviction relief based on the ineffective assistance of counsel and to withdraw the underlying plea, the application was "correctly viewed" as both a PCR petition and a motion to withdraw the plea. On remand, given the comments by the prosecutor, the factors in Slater also should be addressed.

Vacated and remanded. We do not retain jurisdiction.