Judge Rose concluded with the following: We acknowledge, as the PCR judge correctly observed, defendant maintained his innocence throughout the proceedings, including his post-conviction mental status evaluation, precluding the evaluator from “making an assessment as to what his motivation may have been in the instant offense.” Under Rule 3:28-5(b)(1), “enrollment of defendants who maintain their innocence is to be permitted unless the defendant’s attitude would render PTI ineffective.” Because defendant claims his “limited ability to speak English and the absence of a translator” other than his minor sister when she was available, prevented him from understanding his attorney’s “advice about what PTI actually was,” it is unclear from the record what advice trial counsel gave defendant regarding PTI, and whether those discussions impacted defendant’s assertions of innocence.
Importantly, although deciding whether to permit diversion to PTI “is a quintessentially prosecutorial function[,]” State v. Wallace (1996), a prosecutor’s decision is nonetheless subject to judicial review, see State v. K.S. (2015) (recognizing “to overturn a prosecutor’s decision to exclude a defendant from the program, the defendant must ‘clearly and convincingly’ show that the decision was a ‘patent and gross abuse of . . . discretion.'”). We therefore decline to speculate whether defendant would have been admitted into the PTI program.
Because we conclude defendant has made a prima facie claim of ineffective assistance of counsel, we remand for an evidentiary hearing to determine whether defendant received adequate advice about PTI, his potential acceptance into PTI, and how deportation consequences would be impacted if he were accepted into PTI. If at the hearing, defendant satisfies his claim that the advice given fell below professional norms, the hearing should encompass, and the judge should determine, the probability of defendant’s admission into the PTI program and the probability of whether admission would favorably impact the deportation consequences that would follow. See Pinho, 432 F.3d at 215-16; 8 U.S.C. § 1101(a)(48)(A). Defendant shall be permitted to supplement the record with any documentation that he otherwise would have provided in an initial application that would bear upon his acceptance into PTI. Defendant’s conviction and sentence remain in force unless and until defendant satisfies both prongs of the Strickland analysis. We express no view on the merits of any of defendant’s contentions, including his admission into the PTI program. Reversed and remanded. We do not retain jurisdiction.
The trial court will likely deny the petition for post-conviction relief after a plenary hearing. Then, the defendant will likely appeal that decision. That appeal will likely be appealed to the New jersey Supreme Court.