NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2992-18T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. PEDRO M. DECASTRO, a/k/a PEDRO M. PEREIRA DE CASTRO, and PEDRO DESASTRA, Defendant-Appellant. ________________________ Submitted September 23, 2020 – Decided November 17, 2020 Before Judges Whipple and Rose. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-12-1105. Joseph E. Krakora, Public Defender, attorney for appellant (Cody T. Mason, Assistant Deputy Public Defender, of counsel and on the briefs). Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Pedro DeCastro appeals from the February 21, 2019, denial of his post-conviction relief (PCR) petition without an evidentiary hearing and his concurrent motion to withdraw his guilty plea. In his petition, defendant asserts that his plea counsel failed to properly advise him of the immigration consequences of his plea. We reverse and remand for an evidentiary hearing because based on our review of the record there are disputed material facts. Defendant was brought to the United States from Portugal at a young age by his mother. He is a permanent resident and is currently in the custody of Immigration and Customs Enforcement (ICE) awaiting deportation. Our review of the record demonstrates the following timeline. In 2004, defendant was represented by Kevin C. Orr on Essex County Indictment No. 03- 12-3775. In connection with that indictment, Orr sent a March 2004 letter to Assistant Essex County Prosecutor Elizabeth Duelly which states: I write in furtherance of our last discussion in connection with the above pending PTI application. Pursuant to the Illegal Immigration Reform and Immigrant Responsibility Act . . . 8 U.S.C.A. § 1227(a)(2)(B)(i), Mr. DeCastro is subject to removal from the United States as a "deportable alien" if he is convicted of any type of drug offense other than a A-2992-18T4 2 single offense involving possession for one's own use of [thirty] grams or less of marijuana. Federal Law, 8 U.S.C.A. § 1229(d)(1) requires that the "Attorney General shall begin any removal proceeding as expeditiously as possible after the date of the conviction." Mr. DeCastro has been raised by his mother (i.e., a single parent) in the United States from a very young age. He has no contacts or ties to his native country, Portugal. A conviction would result in his exile to a foreign land. We ask that in evaluating his application, the aforementioned is considered. Defendant was copied on the letter, but asserted at his PCR hearing he never received it. Two years later, in December 2006, under Indictment No. 06-12-1105, a Union County grand jury charged defendant ...
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