NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

DOCKET NO. A-2347-09T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. EMANUEL ROSS, Defendant-Appellant. ________________________________ Submitted: December 13, 2010 – Decided: February 7, 2011 A.A. Rodríguez and C.L.

Before Judges Miniman.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 01-06-0734. Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief). Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Emanuel Ross appeals from the denial of his

application for post-conviction relief (PCR).

Because defendant

was entitled to an evidentiary hearing on his application, we reverse and remand for such a hearing.

On July 9, 2003, defendant pled guilty to one count of first-degree kidnapping, contrary to N.J.S.A. 2C:13-1b, in

exchange for which the State agreed to dismiss three assault charges and three weapons charges and recommend a sentence of fifteen years subject to the parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and five subsequent

years of parole supervision.

Defendant was to receive jail

credit for time served from April 17, 2001, to the time of sentencing. At his plea allocution, defendant testified that he hit the victim with a gun several times on January 27, 2001. The

codefendant then tied up the victim and gave the victim a cell phone to call a few people to ask them to bring money to pay defendant the money the victim owed him. victim called ever arrived, and after None of the people the three or four hours,

defendant and his codefendant released the victim.

During the

course of the plea allocution, the judge asked defendant, "Are you satisfied with the advi[c]e you received from [defense

counsel]?"

Defendant answered, "Yes."

The judge accepted the

guilty plea and scheduled sentencing for the future. At the time of his sentencing on November 21, 2003,

defendant stated that he had been offered a deal of nine years. The nine-year agreement, . . . my family is not here to validate this, but at one time,

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I sent my family to [defense counsel's] office and asked her to see if she could get me seven. If not seven, I'll take nine. The response was, we don't know who's testifying right now. It's still early. We can always get the nine back, but it's scheduled for trial. That --in three years, . . . the deal never changed. It was always nine. Then the day that I find out that my codefendant is testifying, . . . I'm under the assumption that I have to live with the nine. After some discussion about the appearance of his family members at sentencing, defendant continued: [F]rom the first prosecutor I had, he told me if I copped out, the deal would be nine years, no more than ten years. That's what Jose [Ortega] said, the first prosecutor. He never changed the deal in three years that this case has been going on for three years. My lawyer told me that we can always get the nine back. Defendant's counsel explained that the nine-year term was to be consecutive serving, to but the the five-year sentence term defendant was to was run

already

fifteen-year

concurrently.

Then the prosecutor stated that Mr. Ortega was no

longer in the prosecutor's office, and the file did not indicate that any consecutive plea offer was ever extended. Defendant then remarked that his "whole intention was not to go to trial when everybody who knew anything about the case knew that I was guilty. that I could get. My whole thing was to get the best deal

And at the last minute he turned it into a

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15."

He

pointed

out

that

even

if

he

had

the

nine

years

consecutively, his actual time would be less than fifteen years concurrently because of the amount of time he had served on the prior sentence. Counsel reminded the court that defendant was

entitled to credit for time served from April 17, 2001, to the date of sentencing. The judge then imposed sentence in

accordance with the plea agreement.

Defense counsel calculated In the end, the judge

the jail credits as at least 826 days.

calculated 983 days as the appropriate jail credit. When the judge entered the judgment of conviction on

January 15, 2004, he gave defendant credit for only ten days of time spent in custody from February 6 to 15, 2001, and gave him 890 days of gap-time credit from June 15, 2001, to November 21, 2003. This was apparently an amended judgment of conviction.1

Defendant appealed his sentence, and the appeal came before us for oral argument on August 23, 2006. By reclassifying jail

credit as gap time, the judgment did not take any time off the period of parole disqualification. Counsel suggested remanding

the matter for reduction in the overall term to compensate for the loss of reduction in the parole disqualification. Defense

counsel also pointed out that no hearing had been conducted by

1

The judgment of conviction entered immediately after sentencing is not in defendant's appendix.

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the judge when he amended the judgment of conviction at the request of the Department of Corrections, as required by Glover v. New Jersey State Parole Board, 271 N.J. Super. 420, 424 (App. Div. 1994).2 The State agreed that the matter should be remanded

because the plea agreement clearly stated that defendant was to get jail credit from April 17, 2001. We entered an order on

August 31, 2006, affirming the sentence but remanding the matter for the limited purpose of determining why defendant did not receive the jail credits specified in the plea agreement. After our remand, the trial judge entered an amended

judgment of conviction on February 2, 2007, in which he gave defendant credit for time spent in custody totaling 958 days from February 6 to 15, 2001, and April 17, 2001, to November 20, 2003. There was no gap-time credit in the amended judgment of

conviction. Defendant filed his PCR application on or about December 6, 2007. He alleged ineffective assistance of counsel, claiming

that his case warranted a presumption of prejudice because of

In Glover, supra, 271 N.J. Super. at 424, the court found "that a fair accommodation of all legitimate interests, consistent with due process and applicable standing principles, requires the making of a formal motion to the trial judge for resentencing based on an asserted illegality in the sentence imposed by the judgment of conviction." Additionally, "the motion should properly be made by one of the parties to the criminal action."

2

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"the

egregious

shortcoming

in

professional attorney

performance performed

of

counsel."

Further,

"[d]efendant's

below

[the] level of reasonable competence, and as a result, counsel's unprofessional errors produced results that negatively

[a]ffected [the] end result."

Counsel was assigned by order

dated April 9, 2008, and thereafter assigned counsel amended defendant's verified petition for PCR. Prior to the amended

petition, defendant's sister and mother prepared letters dated June 18, 2008, which they subsequently executed in front of notaries public. Defendant's sister related a meeting that took place at defense counsel's office that was attended by the sister, the mother, and defendant's girlfriend. They informed defense

counsel that defendant wished to plead guilty to kidnapping and accept the prosecutor's offer of a nine-year term consecutive to the sentence he was already serving. They advised counsel that

defendant wanted to accept the deal because he was afraid the plea offer could increase if he did not accept it in a timely fashion. Defendant's sister further related that defense counsel

implied that defendant should wait a little longer because the prosecutor was having trouble with the witnesses, she might get a better deal, and defendant should not worry about the original

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plea offer increasing.

Defense counsel assured the individuals

present that the plea offer would be on the table until the beginning of trial, and defendant could accept the offer at that time, if he wished to do so. After the meeting, defendant's sister explained defense

counsel's strategy to defendant, and he decided to wait until the beginning of trial to weigh his options. Defendant's sister

then related that defense counsel was incorrect because, when defendant sought to plead guilty at the time of trial, the

prosecutor informed him that the original plea offer was no longer available and that the only plea available at that time was fifteen years. She asserted that her brother accepted the

plea offer, but "he was very disappointed in his lawyer's bad judgment." ineffective. In the letter from defendant's mother, she asserted that "[m]any times my son would call me and have me relay messages to his lawyer because he could never get in contact with her. She expressed her own opinion that counsel was

[Defense counsel] would not accept his phone calls nor visit with him to discuss strategy." She also wrote that, although

defendant asked for copies of the discovery, his lawyer never provided discovery to him.

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Defendant's mother then discussed a status conference she attended in the summer of 2002. Ortega offered her son a plea At that status conference, agreement of nine years with

eighty-five percent to be served consecutively to a five-year sentence with a three-year mandatory minimum that defendant was already serving at the time. needed time to think about it. Defendant told Ortega that he It was after that conference

that she, her daughter, and defendant's girlfriend went to visit defendant to discuss the plea offer and to determine whether it was in his best interest to accept the plea deal. After that

discussion, defendant instructed his mother to inform his lawyer that he wished to accept the deal. Not much later, she, her daughter, and defendant's

girlfriend went to visit with defense counsel.

She described

that conference substantially as her daughter had described it. Defendant's trial was set to begin about ten months later.

Defendant expressed that he wanted to accept the nine-year plea deal, but the prosecutor informed him that it was no longer available and had been increased to fifteen years. mother asserted that defendant felt that Defendant's mistaken

counsel's

advice had resulted in him receiving a longer sentence then he would have received had he not listened to her. She concluded:

I attended [defendant's] sentencing and witnessed my son explain how dissatisfied he

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was with his lawyer[] to the sentencing judge . . . . [Defense counsel] never explained why she gave [defendant] such bad advice; she only said that the new sentence was a little longer than the original one. In defendant's amended September 5, 2008, verified petition for PCR, he explained that the first plea offer was for a total of nine years and that he would be ineligible for parole for seven years and six months. He expressed that the sentence was

to be served consecutively to the sentence he was then serving of five years with a three year mandatory period of parole

ineligibility.

As a result, his aggregate sentence would have

been fourteen years with a ten-year, six-month mandatory period of parole ineligibility. He averred that his counsel assured

him that the State's plea offer would not increase and that it would remain open through trial. trial. In his certification, he made reference to the letters As a result, he proceeded to

provided by his sister and mother and averred that his defense attorney "failed to provide [defendant] with relevant discovery, in order for him to make a fully informed decision as to whether a guilty plea would be in his best interests. not accept or return [defendant's] phone Counsel also did calls, nor visit

[defendant] while incarcerated to discuss his concerns and trial strategy."

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Defendant further related that during jury selection, he decided to take the State's offer of a nine-year term, but the State rescinded the original offer and was only willing to agree to a fifteen-year term. plea bargain. incorrect Defendant reluctantly agreed to that

He averred that the consequence of his counsel's is that his minimum term in prison was

advice

increased by two years and three months, whereas his maximum term increased only by one year. Defendant alleged that he was

denied the effective assistance of trial counsel as described above and sought to have the guilty plea and sentence entered in the matter set aside and the case set down for an evidentiary hearing on the issues raised. The matter came before the PCR judge on June 5, 2009. The

judge denied the application primarily because he had an order in the court file dated December 10, 2001, placing the matter on the trial calendar. That order stated that defendant had not

accepted an offer by the State to recommend a fifteen-year term subject to the eighty-five percent parole disqualifier of NERA in exchange for a guilty plea to kidnapping and third-degree possession of weapons for an unlawful purpose. That order

indicated that defendant was present in court on that date.3

3

The order of December 10, 2001, is not in the record on appeal, nor is there a transcript of the proceedings from that day.

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The judge found that the evidence before him was no more than "a mere allegation of ineffective assistance of counsel." He determined that the plea offer changed from nine consecutive years to fifteen concurrent years on December 10, 2001.4 The

judge further noted that defendant was not claiming he was not guilty of the crime, but was only saying that he wanted the initial plea offer that was made early in the case.5 The PCR

judge also found that in order to prove the first prong of Strickland,6 defendant must show that there is a reasonable

probability that "but for counsel's errors . . . he would not have pled guilty, and would have insisted on going to trial." The judge observed that whether or not [defendant] claims his counsel told him she thought she could get something lower than [fifteen], I have no evidence of that. And I have not even enough evidence to . . . warrant any evidentiary hearing. Because I would have that in every case where somebody had a change of heart and where they said, my attorney told me to ignore what the judge says; ignore the order; ignore what's on the Defendant did not plead guilty until 2003, and the December 10, 2001, order was entered only six months after the indictment. 5 Defendant and his family all certified that the plea offer of nine consecutive years was on the table in the summer of 2002, which was six months after the December 10, 2001, order. Furthermore, defendant certified that he understood the offer of nine consecutive years was still on the table when he went to trial in 2003 and decided to plead guilty. 6 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
4

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record; and I can get you that deal back at the beginning of the case when the prosecutor didn't put any work into the case. Thus, the judge showing concluded required that under defendant had not met the the

threshold

Strickland

and

denied

application. We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing MickensThomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope Id. at

of review applies to mixed questions of law and fact.

420 (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). Where no evidentiary hearing has been held, we "may

exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing

Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual Ibid. findings and legal conclusions of the PCR

court."

Where no credibility determinations have been

made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here as

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there

was

no

evidentiary

hearing

and

no

credibility

determinations were made. The right to counsel is guaranteed by both the Federal and State Constitutions. Const. art. I, § 10. See U.S. Const. amends. VI, XIV; N.J. In New Jersey, this guarantee requires not

just the presence of an attorney, but the effective assistance of counsel. State v. Jack, 144 N.J. 240, 248 (1996). "[A]

criminal defendant is entitled to the assistance of reasonably competent counsel, and . . . if counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction, the constitutional right will have been violated." Fritz, 105 N.J. 42, 58 (1987). To establish a prima facie claim of ineffective assistance of counsel, the defendant must meet the standard promulgated by the United States Supreme Court in Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and adopted in New Jersey under Fritz, supra, 105 N.J. at 57-58. Whether the State v.

defendant's constitutional right to counsel has been abridged is "measured by applying a 'simple, two-part test.'" State v.

O'Neal, 190 N.J. 601, 629 (2007) (quoting Fritz, supra, 105 N.J. at 52). First, the defendant must show counsel's performance was deficient. that This

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requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. [Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.] To meet the first prong of the Strickland/Fritz test, a convicted defendant must identify acts or omissions by the trial counsel that were not "the result of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at

2066, 80 L. Ed. 2d at 695; see also State v. Petrozelli, 351 N.J. Super. 14, 22 (App. Div. 2002). The defendant must show

that "counsel's representation fell below an objective standard of reasonableness." Ct. at 2064, 80 L. Strickland, supra, 466 U.S. at 688, 104 S. Ed. 2d at 693. A court analyzing a

defendant's argument under this first prong "must give great deference to counsel's performance and must strongly presume

that the attorney's conduct constituted reasonable professional assistance." Petrozelli, supra, 351 N.J. Super. at 21-22

(citing Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). The court should not review the

attorney's performance with the benefit of hindsight, but rather

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should "'evaluat[e] the conduct from counsel's perspective at the time.'" Id. at 22 (quoting Strickland, supra, 466 U.S. at This prong acts or

689, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694). requires the court to determine whether

counsel's

omissions, in light of the existing circumstances, were squarely outside the ambit of professionally competent assistance. Consequently, informed strategic choices "are Ibid.

virtually

unchallengeable."

Strickland, supra, 466 U.S. at 690, 104 S. Even strategic choices made

Ct. at 2066, 80 L. Ed. 2d at 695.

after limited investigation are afforded great deference and are assessed for reasonableness. at 22. If the court finds that counsel's errors were significant enough to meet the first prong of Strickland/Fritz, the Petrozelli, supra, 351 N.J. Super.

defendant must then demonstrate that the error was "prejudicial to the defense." Strickland, supra, 466 U.S. at 692, 104 S. Ct. "The defendant must show that that, but for counsel's

at 2067, 80 L. Ed. 2d at 696. there is a reasonable

probability

unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability Id. at 694,

sufficient to undermine confidence in the outcome." 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. rests "squarely on the defendant."

The burden of proof

State v. Paige, 256 N.J.

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Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992). The reviewing court "'should presume . . . that the judge or jury acted according to the law.'" Petrozelli, supra, 351 N.J.

Super. at 22 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Thus, relief should only be

granted where a defendant demonstrates that the counsel's error is "so serious as to undermine the court's confidence in the jury's verdict or result reached." State v. Chew, 179 N.J. 186,

204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). The Strickland test does apply to challenges to guilty

pleas based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985) ("We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel."). In such a

case, the first prong of Strickland requires an evaluation of whether the attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal

cases.'"

Id. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 The second prong examines whether there is that "counsel's the constitutionally of the plea

(citation omitted). a "reasonable

probability"

ineffective

performance

affected

outcome

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process. there is

In other words, . . . the defendant must show that a reasonable probability that, but for counsel's

errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d

at 210 (footnote omitted). Here, assuming the truth of defendant's assertions and

those of his family, defense counsel was ineffective in failing to visit defendant in prison to discuss strategy, declining to accept his telephone calls, refusing his repeated requests for discovery, and placing a communication barrier between counsel and defendant, which precluded defendant from learning that the State was about to withdraw its nine-year plea offer, that the offer had been withdrawn, and that the withdrawal was

irrevocable.

Certainly defendant suffered prejudice as he lost Of course, we counsel was This

the benefit of the nine-year consecutive term. cannot say as a matter of law that defense

ineffective or that defendant was prejudiced as a result.

is so because the PCR judge failed to conduct an evidentiary hearing in the face of undisputed evidence from defendant and his family. Clearly, the order of December 10, 2001, did not

impeach the certification of defendant and the letters from his family with respect to the offer that was on the table in the summer of 2002.

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The standard for an evidentiary hearing in PCR proceedings is contained in State v. Preciose, 129 N.J. 451 (1992). A PCR

judge must view the facts of the case in a light most favorable to defendant to determine at if a prima Here facie the claim has been by

established.

Id.

462-63.

facts

alleged

defendant "lie outside the trial record and . . . the attorney's testimony [was] required." Id. at 462.

We are cognizant of State v. Slater, 198 N.J. 145 (2009). However, this PCR application is not a direct motion to withdraw a guilty plea, but a claim that defendant was deprived of his constitutional right to effective assistance of counsel. In

such a case, the PCR judge must determine whether defendant's constitutional right was compromised and, if so, remedy the harm by restoring defendant to the place he occupied before the

deprivation of his rights.

This remedy is similar to an order

for a new trial when we determine based on the record on appeal that trial counsel was ineffective. Defendant and his new

counsel may then seek to negotiate a new plea or proceed to trial. Thus, an evidentiary hearing was required to resolve the

conflict between the December 10, 2001, order and defendant's version of the facts. Accordingly, defendant's the order is denying to PCR the is PCR reversed judge for and an

petition

remanded

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evidentiary hearing so that the judge may hear testimony from defendant and his family, as well as from defense counsel and Prosecutor Ortega, and decide the facts. Only then will the PCR

judge be able to determine whether defendant has established by a preponderance of the evidence that he is entitled to a remedy for the alleged deprivation of his constitutional right to

effective assistance of counsel. Reversed and remanded for proceedings consistent with this opinion.

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