STATE OF NEW JERSEY VS. NATASHA MALAVE(13-11-3357, CAMDEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4208-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHARLES H. HOENS, III,
Defendant-Appellant.
________________________________
Argued April 24, 2017 – Decided May 4, 2017
Before Judges Sabatino, Currier and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
14-07-0836.
Edward C. Bertucio argued the cause for
appellant (Hobbie, Corrigan & Bertucio, P.C.,
attorneys; Mr. Bertucio, of counsel and on the
briefs; Elyse S. Schindel, on the briefs).
Brian D. Gillet, Deputy First Assistant
Prosecutor, argued the cause for respondent
(Andrew C. Carey, Middlesex County Prosecutor,
attorney; David M. Liston, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Charles Hoens, III, appeals the trial court's June
1, 2016 order denying his post-sentencing motion to withdraw his
guilty plea to second-degree theft, N.J.S.A. 2C:20-3, and second-
degree official misconduct, N.J.S.A. 2C:30-2. The thrust of
defendant's motion is that he should now be permitted to withdraw
his plea because the two attorneys who successively represented
him before and during the plea entry and at sentencing were
ineffective and failed to adequately safeguard his interests in
the criminal process.
For the reasons that follow, we remand for an evidentiary
hearing. We do so in light of the discrete allegations presented,
and the trial court's key assumption, which may have been legally
mistaken, that defendant could tenably assert in a post-conviction
relief ("PCR") petition claims of constitutional ineffectiveness
against his first attorney concerning his representation before
he was charged or indicted.
I.
Since we are remanding this matter for further factual
development and legal analysis, we need not present the underlying
chronology in a comprehensive or conclusive manner. The following
will suffice for purposes of this opinion.
Defendant was employed by the Fire Commission of South
Brunswick Township ("the Commission"). In that capacity, he had
access to the bank account of Fire District Number 3 ("the Fire
District"). During the relevant timeframe, defendant was
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personally experiencing financial difficulties with his private
business. Due to those difficulties, defendant began periodically
diverting sums of money from the Fire District's bank account to
his personal bank account. Defendant alleges that he intended to
repay the diverted amounts once his financial situation
stabilized.
Recognizing that the Commission is a public entity subject
to audit, and that an upcoming audit would inevitably reveal his
diversion of funds, defendant retained the services of a private
criminal defense attorney ("the first attorney"). According to
the affidavit defendant submitted in support of his plea withdrawal
motion, defendant admitted to his first attorney that he had
diverted what he estimated to be approximately $90,000 from the
Fire District's bank account. Allegedly hoping to make
restitution, defendant provided the first attorney with $90,000
out of funds that defendant had recently inherited. The first
attorney deposited the $90,000 into an escrow account.
According to defendant's affidavit, his first attorney
advised him that he "should go to the Middlesex County Prosecutor's
Office and made a statement[,]" even though, as defendant contends,
the Prosecutor's Office "had no information about this matter and
had not begun an investigation against [him]." Defendant further
attested that his first attorney "also indicated that he would
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negotiate a plea deal with the State that would involve no jail
time and would include payment of $90,000 as full restitution in
this matter[.]"
The first attorney arranged a meeting with the Prosecutor's
office, to which he accompanied defendant. The meeting occurred
on December 19, 2012. At that session, defendant was given
Miranda1 warnings, waived his right to remain silent, and was then
questioned by an investigator during a video-recorded interview.
During that interview, which was later transcribed and made part
of the present record, defendant admitted that he had diverted
funds from the Fire District's bank accounts at various times in
2011 and 2012. He also agreed to make restitution and resign as
a fire commissioner.
According to defendant's affidavit, his first attorney "did
no prior investigation and did not obtain a formal written
negotiation as to the State's intention with regard to
[defendant's] statement." The attorney also allegedly "never did
any subsequent follow up investigation after [defendant's]
statement was given."
More specifically, defendant contends:
The only information I received [from his
first attorney] was a reassurance that there
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
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was a "gentlemen's agreement" and that the
deal between the State and myself would be to
plead guilty to third degree theft in exchange
for a sentence of straight, non-custodial
probation without jail time and to pay $90,000
in restitution and move on with my life
. . . . With that understanding in mind, and
because that information had been represented
to me, I made [my] statement to the Middlesex
County Prosecutor's Office.
The State denies, however, the existence of any such unwritten
"gentlemen's agreement." In this regard, the State points out
that at the conclusion of defendant's recorded interview, the
investigator warned him that there would be consequences for the
actions to which defendant had confessed and that the investigator
would be forwarding the information to his superiors. The
investigator added "I can't promise you anything. I don't know
where they're going to go with this." The transcript reflects
that defendant and his first attorney were both given the
opportunity to put "anything else on the record" before the
recording ended, and they did not do so. On December 19, 2013,
the Prosecutor's Office issued a criminal complaint against
defendant, charging him with second-degree theft in a cumulative
sum of $695,795.46.
Before defendant was indicted by a grand jury, the first
attorney moved to be relieved as counsel for reasons of non-payment
of fees. In his supporting certification, the first attorney
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stated that the retainer defendant had paid to the attorney's law
firm "was set to address only representation during the [matter's]
investigative phase, and did not contemplate representation once
adversarial proceedings commenced." The certification further
added that defendant's written retainer agreement was "limited to
the Investigation[,]" and that the retainer had been exhausted
since the time the criminal charges were filed. Counsel also
referred to the $90,000 in the firm's escrow account, and the
court's oral direction to not dispense those funds without leave
of court. The trial court granted the first attorney's motion to
be relieved.
Meanwhile, on May 29, 2014, a grand jury issued a five-count
indictment against defendant, charging him with one count of
second-degree theft, N.J.S.A. 2C:20-3 (Count 1); two counts of
first-degree financial facilitation of criminal activity, N.J.S.A.
2C:21-25 (Counts 2 and 3); one count of second-degree official
misconduct, N.J.S.A. 2C:30-2 (Count 4); and one count of third-
degree pattern of official misconduct, N.J.S.A. 2C:30-7 (Count 5).
Defendant then requested representation from the Office of the
Public Defender. A trial attorney ("the second attorney") was
assigned to represent him.
Plea negotiations ensued, resulting in a written agreement
between defendant and the State dated November 10, 2014. The
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agreement provided that defendant would plead guilty to counts one
(second-degree theft) and four (second-degree official
misconduct), and the other three counts of the indictment would
be dismissed. The State agreed to recommend at sentencing that
defendant receive a ten-year custodial term, with a five-year
period of parole ineligibility, with defendant having the right
to argue for a shorter term of five years. Defendant also agreed
to execute a consent judgment at sentencing to be liable for
restitution in the recalculated sum of $736,847.75.
Defendant appeared before the trial court on November 10,
2014, at which time his guilty plea was placed on the record.
During extensive questioning at that plea hearing, defendant, who
is a businessman with advanced degrees, repeatedly acknowledged
that he understood the terms of the plea agreement and was entering
into it voluntarily.
About six months later, defendant appeared before a different
judge for sentencing. As permitted by the plea agreement, the
court sentenced defendant to five years in prison (less than the
ten years advocated by the State) with a five-year parole
ineligibility period. In addition, defendant was ordered to make
restitution in the sum of $736,847.75, reflected on the consent
judgment. Defendant was also ordered to pay customary fines and
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penalties, and was permanently disqualified from holding any
public office in this State in the future.
Defendant did not appeal his sentence. Instead, he retained
new private counsel and filed the instant motion to withdraw his
guilty plea pursuant to Rules 3:9-2 and 3:9-3 and the withdrawal
factors of State v. Slater, 198 N.J. 145 (2009). As a critical
part of his arguments, defendant asserted that his first attorney
and his second attorney were each, for different reasons,
ineffective and violated his federal and state constitutional
rights under the precepts of Strickland v. Washington, 466 U.S.
668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984) and
State v. Fritz, 105 N.J. 42 (1987).
As to his first attorney, defendant argued that the attorney
was deficient in allowing him to make incriminating statements in
a recorded interview with the Prosecutor's Office without a written
agreement specifying how that statement could be used, and by
instead advising defendant that he was protected by an unwritten
alleged "gentlemen's agreement." As to the second attorney,
defendant contends that the attorney coerced him into accepting
the terms of the plea negotiation, and also failed to argue at
sentencing that defendant should receive a sentence one degree
lower, as permitted in appropriate situations by State v. Rice,
425 N.J. Super. 375 (App. Div. 2012).
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After considering these arguments and the State's opposition,
the motion judge (who had also been the sentencing judge in this
case2) denied defendant's motion without an evidentiary hearing.
The judge concluded that defendant had not shown a basis for relief
under the four criteria of Slater, supra. In addition, the judge
noted in his May 19, 2016 oral ruling that defendant could pursue
relief in a future PCR proceeding in which matters outside the
existing record could be developed. The judge further noted that,
to the extent defendant argued that the amount of court-ordered
restitution was excessive, defendant was free to file a motion to
seek to have the sum recalculated and an ability-to-pay hearing.
The court memorialized that right in its written corresponding
order, allowing defendant to submit his calculations as to the
proper amount of restitution to the prosecutor's office and that
if the prosecutor disagreed with these figures, defendant could
request a hearing on the issue.
II.
This appeal ensued. Defendant presents the following
arguments for our consideration:
THE TRIAL COURT ERRED IN DENYING APPELLANT'S
MOTION TO WITHDRAW HIS GUILTY PLEA PURSUANT
TO STATE V. SLATER AND STRICKLAND V.
WASHINGTON. APPELLANT ENTERED A GUILTY PLEA
2 Both the plea judge and the sentencing/motion judge are now
retired.
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INVOLUNTARILY AND AS THE RESULT OF THE
INEFFECTIVE ASSISTANCE OF COUNSEL OF HIS TWO
PRIOR ATTORNEYS.
A. THE TRIAL COURT ERRED IN DENYING
APPELLANT'S MOTION TO WITHDRAW THE GUILTY PLEA
PURSUANT TO STATE V. SLATER.
B. THE TRIAL COURT ERRED IN DENYING
APPELLANT'S MOTION TO WITHDRAW THE GUILTY PLEA
PURSUANT STRICKLAND V. WASHINGTON.
The parties agree that defendant's motion to withdraw must
be evaluated under the four factors set forth by the Supreme Court
in Slater, supra. Those factors are:
(1) whether the defendant has asserted a
colorable claim of innocence; (2) the nature
and strength of defendant’s reasons for
withdrawal; (3) the existence of a plea
bargain; and (4) whether withdrawal would
result in unfair prejudice to the State or
unfair advantage to the accused.
[Id. at 157-58].
None of these factors, including a colorable claim of innocence,
is required or dispositive. Id. at 162; see also State v. Munroe,
210 N.J. 429, 442-43 (2012). As defendant acknowledges, the burden
of justifying a requested withdrawal is heavier where, as here,
the motion to withdraw is made after, rather than before,
sentencing. Slater, supra, 198 N.J. at 160; see also Munroe,
supra, 210 N.J. at 442-43. Generally, the decision on whether to
grant or deny a motion to withdraw a plea rests in the "sound
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discretion" of the trial court. Munroe, supra, 210 N.J. at 442;
see also Slater, supra, 198 N.J. at 156.
We agree with the trial court that the first Slater factor
of "colorable claim of innocence" tips against defendant here.
Defendant concedes that he repeatedly diverted funds from the fire
district. The only caveat he alleges is that his state of mind
in doing so was not sufficiently venal to satisfy the theft and
official misconduct statutes beyond a reasonable doubt. He also
contests the quantification of the amount diverted, although he
has not yet offered a competing calculation.
The third and fourth factors do not manifestly weigh in
defendant's favor. As to the third factor, defendant's guilty
plea was entered pursuant to a negotiated agreement, although that
is the factor that "receives the least weight in the overall
analysis[.]" Munroe, supra, 210 N.J. at 443. As to the fourth
factor, the State surely will sustain some prejudice if the plea
were withdrawn post-sentencing, although we presume that the
documentation of the financial accounts still exists and that
defendant's incriminatory recorded statement remains preserved in
audio form.
The critical questions posed here arise under the second
Slater factor, i.e., "the nature and strength of defendant's
reasons for withdrawal." Slater, supra, 198 N.J. at 159. In his
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motion affidavit, defendant has detailed several reasons why his
first attorney was allegedly deficient in arranging the taped
interview with the Prosecutor's Office without any formal written
agreement to address the future uses of that recording. His
assertion that his first attorney advised him of a so-called
"gentlemen's agreement" limiting his criminal exposure is
presently unrefuted, at least as to the alleged advice itself. We
simply do not know what the first attorney would have to say on
the subject and what, if any, documentation exists in the first
attorney's files that might refute defendant's sworn assertion
about what he was told.
Analysis of the second factor becomes more problematic
because the trial court may have been under a possibly mistaken
assumption that defendant could have, at least as a matter of law,
pursued claims of ineffectiveness against his first attorney for
allegedly deficient representation occurring before he was ever
charged. As the State points out in its brief, the constitutional
right to representation generally is not triggered until a criminal
defendant is formally charged. See Kirby v. Illinois, 406 U.S.
682, 688-89, 92 S. Ct. 1877, 1881-82, 32 L. Ed. 2d 411, 417 (1972);
State v. Sanchez, 129 N.J. 261, 265 (1992). In a case we found
and provided to counsel before oral argument, the Second Circuit
Court of Appeals in Claudio v. Scully, 982 F.2d 798, 802 (2d Cir.
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1992), held that there is no constitutional right under the Sixth
Amendment to a defendant for allegedly deficient representation
by a criminal defense attorney who took his client to police for
questioning before charges were ever filed against that defendant.
Our New Jersey courts have yet to address the specific issue
posed in Claudio. At a minimum, without deciding that legal issue
on appeal at this time, there appears to be substantial doubt that
claims of ineffectiveness are viable for missteps by defense
counsel before charges are ever filed. The motion judge thus may
have incorrectly presumed that PCR is a viable option for
defendant, at least with respect to the first attorney. Although
the motion judge's remarks on the record about PCR may have solely
concerned the second attorney, whose representation was post-
indictment, we cannot be confident that the motion judge implicitly
assumed that PCR was available to raise ineffectiveness claims
concerning both attorneys. See State v. Brito, 345 N.J. Super.
228, 230 (App. Div. 2001) (remanding a case where the trial court
"operat[ed] under a misapprehension as to the nature of the
proceedings before it").
Under these discrete circumstances, we deem it preferable for
this matter to be remanded for the trial court to conduct an
evidentiary hearing to explore the pertinent factual issues in
more depth, including taking testimony from defendant and, if
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feasible, his two prior counsel, and considering any relevant
documents from their prior representation addressing the
assertions made in defendant's affidavit. The trial court shall
then reevaluate the Slater factors, particularly under the second
prong. Although the focus of our concerns relates mainly with the
first attorney, we decline to address the second attorney's conduct
at this time and instead defer that to the overall mix of
considerations on remand. The trial court shall also consider,
in the first instance, the constitutional issues posed, to the
extent the court finds it necessary to reach them in its analysis.
Remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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