NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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-3557-18T1 STATE OF NEW JERSEY, Plaintiff-Respondent, v. YAMILE LIAN, Defendant-Appellant. _____________________________ Submitted February 10, 2020 – Decided March 6, 2020 Before Judges Messano and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 94-02- 0209. Hegge & Confusione, LLC, attorneys for appellant (Michael James Confusione, of counsel and on the brief). Christopher L.C. Kuberiet, Acting Middlesex County Prosecutor, attorney for respondent (David Michael Liston, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Yamile Lian appeals from the trial court's April 12, 2019 amended order denying, without an evidentiary hearing, her petition for post - conviction relief. We affirm in part, vacate in part, and remand for further proceedings. I. Lian collaterally challenges her 1994 conviction, after a guilty plea, of third-degree possession of cocaine with the intent to distribute, N.J.S.A. 2C:35- 5(a)(1) and -5(b)(3). She received a two-year term of non-custodial probation. There was no direct appeal. To support her petition, Lian argued that her plea attorney misled her about the immigration consequences of her conviction. Additionally, she contended her attorney had a conflict of interest, because the attorney also represented Lian's co-defendant, who was her paramour and the future father of her children. The indictment charged Lian and the man with possessing cocaine, N.J.S.A. 2C:35-10, and possession with intent to distribute. In her petition, she alleged that he was culpable; her involvement was "involuntary"; their attorney "only talked to him"; and she pleaded guilty to secure a non-custodial sentence for him. A-3557-18T1 2 The PCR court denied the petition on the merits, without addressing the State's argument that it was untimely. In denying the claim of misadvice about immigration consequences, the PCR court explained that under applicable law when defendant pled, constitutionally effective attorneys were not required to advise a client about the immigration consequences of a plea; "they were only obligated to refrain from giving false or affirmatively misleading advice on that subject." (citing Padilla v. Kentucky, 559 U.S. 356 (2010), and State v. Gaitan, 209 N.J. 339 (2012)). Noting that Lian did not present a transcript of her plea hearing, the PCR court held that Lian failed to provide supporting evidence for her misadvice claim; rather, in her plea form, she acknowledged the risk that, as a non-citizen, she could be deported by virtue of her plea. In denying the conflict-of-interest-based claim, the court concluded Lian was obliged to show that she did not waive the conflict. She failed to meet that burden, because she did not provide her plea transcript. On appeal, Lian presents the following points for our consideration: The trial court ...
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