RONALD SASALA VS. STATE OF NEW JERSEY (L-3532-14, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2478-15T1
RONALD SASALA,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY; STATE OF
NEW JERSEY, DEPARTMENT OF THE
TREASURY; OFFICE OF THE
MIDDLESEX COUNTY PUBLIC DEFENDER'S
OFFICE; RICHARD D. BARKER; HOWARD
BARMAN; and JOSEPH M. MAZRAANI,
Defendants-Respondents.
________________________________
Argued September 27, 2017 – Decided July 25, 2018
Before Judges Fuentes, Manahan and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
3532-14.
Audwin F. Levasseur argued the cause for
appellant (Thomas R. Ashley, attorney; Thomas
R. Ashley, on the brief).
Ashley Gagnon, Deputy Attorney General, argued
the cause for respondents (Christopher S.
Porrino, Attorney General, attorney; Lisa A.
Puglisi, Assistant Attorney General, of
counsel; Ashley Gagnon, on the brief).
PER CURIAM
Plaintiff Ronald Sasala filed a civil complaint against the
State of New Jersey, Department of the Treasury, the Middlesex
County Public Defender's Office, Deputy Public Defender Richard
D. Barker, Assistant Deputy Public Defender Howard Barman, and
Assistant Deputy Public Defender Joseph M. Mazraani,1 alleging
breach of contract, legal malpractice, and seeking exoneration
damages pursuant to N.J.S.A. 52:4C-1 to -7. This civil action is
predicated on the material facts that formed the basis for the
disposition of an underlying criminal prosecution. We will thus
describe the procedural history of the criminal case before
directly addressing the issues related to this civil litigation.
I
On May 22, 2007, a Middlesex County Grand Jury returned an
indictment against Sasala charging him with
three counts of first-degree carjacking, N.J.S.A. 2C:15-2, second-
degree kidnapping, N.J.S.A. 2C:13-1(b), and fourth-degree false
swearing, N.J.S.A. 2C:28-2(a). Assistant Deputy Public Defender
Howard Barman represented Sasala in this case. The State was
1
At all times relevant to this case, these attorneys were employed
by the Office of the Public Defender established by the Legislature
under N.J.S.A. 2A:158A-1 to -25. The mission of the Public
Defender is "to provide for the realization of the constitutional
guarantees of counsel in criminal cases for indigent defendants
. . . ." N.J.S.A. 2A:158A-1.
2 A-2478-15T1
represented by Assistant Prosecutor Thomas Daniel Carver, Jr., of
the Middlesex County Prosecutor's Office. At a deposition taken
on April 25, 2015, in connection to this civil action, Carver
testified that the first plea offer he made to Sasala to resolve
all of the pending criminal charges was for him to plead guilty
to one count of first-degree carjacking. The State would recommend
that the court sentence him to a term of twenty years, subject to
an eighty-five percent period of parole ineligibility and five
years of parole supervision as mandated by the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2. Sasala rejected this plea offer.
Represented by Barman, Sasala entered into a negotiated
agreement with the State on May 1, 2008, through which he agreed
to plead guilty to second-degree kidnapping. In exchange, the
State agreed to dismiss the remaining counts in the indictment and
recommend that the court sentence defendant to a term of eight
years, subject to an eighty-five percent period of parole
ineligibility and three years of parole supervision, as mandated
by NERA. At his deposition taken on June 2, 2015, Barman provided
the following explanation for his decision to advise Sasala to
accept the State's plea offer:
[H]e wanted to plead to theft of a car, the
State was not willing to give him that, so the
discussion between him and I was[:] "If you
go to trial you have the videotape [of the
incident], you have the pregnant victim who's
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on her knees next to the car, and you say you
didn't push her.[2] The only way I put that on
is if you testify, and if you testify your
prior record comes out. That's a difficult
situation.
After the plea hearing, Sasala informed Barman that he wanted
to withdraw his guilty plea. Faced with this conflict of interest,
the Public Defender's Office assigned pool attorney3 Joseph M.
Mazraani to represent Sasala in the presentation of his motion to
withdraw his guilty plea at the November 19, 2008 sentencing
hearing.4 With the trial judge's consent, Mazraani questioned
Sasala under oath concerning his reasons for wanting to withdraw
his guilty plea:
Q. You're alleging that Mr. Barman did not
effectively represent you?
A. I would say that, yes.
Q. Tell the [c]ourt why.
A. I had asked for a lot of the things that
weren't in my discovery. They were not
included as the Grand Jury transcripts. I'd
ask for a videotape that the discovery says
they have which never even turned up. I had
asked for my statements, my alleged statements
2
The victim claimed Sasala pushed her out of the car.
3
See N.J.S.A. 2A:158A-7(c), (d); see also State v. Van Ness, 450
N.J. Super. 470, 490 n.9 (App. Div. 2017).
4
The trial court conducted a hearing to decide Sasala's motion
to withdraw his guilty plea. This hearing occurred nearly three
months before the Supreme Court decided State v. Slater, 198 N.J.
145 (2009).
4 A-2478-15T1
I had given to the police. Never. I asked
[him for] statements from the victims. Never
heard from him. I asked him many times. I
never got these things. These are things that
would [have] help[ed] me make a sound
decision.
When Mazraani asked Sasala why he did not bring these concerns
to the judge's attention at the time of the plea hearing, Sasala
responded:
I felt I was in a position where there was a
no win situation. Mr. Barman was telling me
I have to take this plea or else I'll never
see my kid again. I was shaking my head. [The
judge] stopped me. I knew what I saying was
wrong. I was shaking my head. I knew what I
was saying wasn't the truth. I'm not guilty
of these charges.
The judge denied Sasala's motion to withdraw his guilty plea.
He rejected as not credible Sasala's claim that he "was doing what
[Barman] told [him] to do." The record shows the judge took
umbrage with Sasala's belated attempt to withdraw his guilty plea
by accusing Barman of coaching him to lie under oath. The judge
characterized Sasala's allegations against Barman as
"disingenuous." Despite his strong disapproval of Sasala's
actions, the judge sentenced him to a term of six years
imprisonment subject to NERA; this was two years less than the
eight-year term of imprisonment authorized by the plea agreement.
Sasala did not appeal the sentence or the judge's decision to deny
his motion to withdraw his guilty plea.
5 A-2478-15T1
On February 1, 2011,5 Sasala filed a post-conviction relief
(PCR) petition alleging that both Barman and Mazraani provided
ineffective assistance. The PCR court denied Sasala's PCR petition
without conducting an evidentiary hearing. Sasala appealed the
PCR's order to this court. In the course of reviewing Sasala's
appeal, this court provided the following description of the
incident that gave rise to the criminal charges against him:
[O]n December 31, 2006 . . . Mauricio
Alexander Lopez drove Daisy and Sonia Estrada
to a laundromat in Perth Amboy in a Honda
Accord. Daisy was nine months pregnant at the
time. Lopez parked and began carrying bags
of laundry inside, while Daisy and Sonia
remained in the Honda with the engine running.
[Sasala] approached Lopez and offered to help
him carry the laundry bags. After all of the
laundry had been carried in, [Sasala] ran to
the Honda, entered the driver's side door, and
pushed Daisy, who was exiting the passenger's
side door, from the car. He then drove away
with Sonia still in the backseat. Initially,
Sonia was too afraid to say anything to
[Sasala], but she eventually started yelling.
[Sasala] pulled over and allowed her to leave.
Sonia fled back to the laundromat, where she
provided police with a description of
[Sasala]. She told the responding officers
that [Sasala] "did not realize that she was
in the back seat until she screamed," at which
point he "ordered her to get out of the car[.]"
5
The date indicated here is taken from paragraph twenty-seven of
plaintiff's verified complaint. Sasala did not include in the
appellate record a filed copy of the PCR petition. In the interest
of clarity, we note that this court's unpublished opinion reversing
the PCR court's denial of Sasala's petition states Sasala filed
the PCR petition "in September 2010." State v. Sasala, No. A-
2207-11 (App. Div. June 20, 2013) (slip op at 7).
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Later that day, Lopez contacted police and
reported that he had seen [Sasala]. Police
responded, and Lopez positively identified
[Sasala], who was then placed under arrest.
[Sasala, slip op. at 1-2.]
This court noted that the factual basis Sasala provided at
the plea hearing in response to Barman's questions did not support
his guilty plea for the crime of second-degree kidnapping, as
defined in N.J.S.A. 2C:13-1(b). Specifically, "defendant was
asked if he was guilty of second-degree kidnapping but was not
asked for a factual basis that included the required predicate
purpose." Id. at 20. We thus "revers[ed] the order denying
[Sasala's] petition for PCR and remand[ed] for an evidentiary
hearing on his claim of ineffective assistance of counsel and a
hearing to determine whether he should be permitted to withdraw
his guilty plea." Ibid.
On remand, Sasala negotiated a new plea agreement with the
State and pled guilty to second-degree robbery, N.J.S.A. 2C:15-1.
Pursuant to the terms of the plea agreement, the court sentenced
Sasala to a three-year term of imprisonment subject to NERA. This
resulted in a de facto time-served sentence because by this time,
Sasala had served over five years of his original six-year
sentence. In light of this negotiated disposition, the trial
court did not make any final determination concerning whether
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Sasala received ineffective assistance of counsel from Barman or
Mazraani.
II
Against this procedural backdrop, we will now address the
issues raised by Sasala in this appeal. In support of their motion
for summary judgment, defendants argued to the Law Division that
Sasala was judicially estopped from seeking any civil relief under
any of the theories of liability stated in his complaint.
Defendants argued that the legal malpractice claim subsumed the
breach of contract claim. Furthermore, by agreeing to plead guilty
to second-degree robbery, plaintiff was barred from bringing a
claim under the Mistaken Imprisonment Act, N.J.S.A. 52:4C-1 to -
7. Finally, defendants argued that no reasonable jury could find
that any alleged legal malpractice committed by Barman and Mazraani
proximately caused Sasala compensable harm.
The motion judge agreed that the legal malpractice claim
subsumed the breach of contract claim and that Sasala is barred
from asserting a claim under the Mistaken Imprisonment Act because
he pled guilty to the crime for which he was convicted. In this
appeal, plaintiff argues he is entitled to seek damages under this
statute because he was "exonerated" of second-degree kidnapping.
For the first time on appeal, plaintiff also argues that he does
not need to present expert testimony to prove defendants committed
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legal malpractice or that their professional negligence
proximately caused him harm. We reject these arguments and affirm.
We review the grant of a motion for summary judgment de novo.
Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013). A court must
grant summary judgment only "if the pleadings, depositions,
answers to interrogatories and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is entitled
to a judgment or order as a matter of law." R. 4:46-2(c). We
must determine whether "the competent evidential materials
presented, when viewed in the light most favorable to the non-
moving party, are sufficient to permit a rational factfinder to
resolve the alleged disputed issue in favor of the non-moving
party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995).
To recover damages under the Mistaken Imprisonment Act, a
claimant must establish the following facts by clear and convincing
evidence:
a. That he was convicted of a crime and
subsequently sentenced to a term of
imprisonment, served all or any part of his
sentence; and
b. He did not commit the crime for which he
was convicted; and
9 A-2478-15T1
c. He did not commit or suborn perjury,
fabricate evidence, or by his own conduct
cause or bring about his conviction. Neither
a confession or admission later found to be
false shall constitute committing or suborning
perjury, fabricating evidence, or causing or
bringing about his conviction under this
subsection; and
d. He did not plead guilty to the crime for
which he was convicted.
[N.J.S.A. 52:4C-3 (emphasis added).]
The record here is undisputed that Sasala cannot meet these
statutory criteria. Sasala pled guilty to the crime of second-
degree kidnapping. He did not file a direct appeal challenging
his conviction or sentence. This court's decision related to
Sasala's PCR petition did not exonerate him of second-degree
kidnapping. We remanded the matter to the PCR court to conduct
an evidentiary hearing on his claim of ineffective assistance of
counsel and to determine "whether he should be permitted to
withdraw his guilty plea." Sasala, slip op. at 20 (emphasis
added). On remand, Sasala negotiated a new plea agreement and
voluntarily pled guilty to second-degree robbery. It is important
to state clearly that this court's decision to reverse the PCR
court's denial of Sasala's petition and remand the matter for an
evidentiary hearing did not vacate the conviction for second-
degree kidnapping. Sasala's decision to pled guilty to second-
degree robbery in return for the State agreeing to vacate his
10 A-2478-15T1
conviction for second-degree kidnapping obviated the need for the
PCR court to carry out our instructions.
Sasala's legal malpractice claims are equally without merit.
In a legal malpractice action predicated on a defense counsel's
conduct, a plaintiff must prove actual damages. Grunwald v.
Bronkesh, 131 N.J. 483, 495 (1993). "The test is not whether
defense counsel could have done better, but whether he met the
constitutional threshold for effectiveness." State v. Nash, 212
N.J. 518, 543 (2013). Sasala has not presented any competent
evidence that Barman did not effectively represent him during the
plea negotiations. The burden of proof also requires Sasala to
show that "the Government was willing to extend a plea offer to
him . . . that was more favorable than the one he accepted and
that his sentence would have been less than the one he received."
Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014).
Here, Sasala must prove that at the time he pled guilty to second-
degree kidnapping, but for Barman's professional negligence, the
State would have offered him a plea agreement with more favorable
terms.
Sasala's self-serving account of the event that led to his
indictment on three counts of first-degree carjacking and second-
degree kidnapping does not constitute evidence of malpractice by
either Barman or Mazraani. See Brae Asset Fund, LP v. Newman, 327
11 A-2478-15T1
N.J. Super. 129, 134 (App. Div. 1999) (quoting U.S. Pipe & Foundry
Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App.
Div. 1961)) ("The law is well settled that '[b]are conclusions in
the pleadings without factual support in tendered affidavits, will
not defeat a meritorious application for summary judgment.'").
Indeed, as Barman's deposition testimony indicates, the State had
a strong case that Sasala committed first-degree carjacking and
intentionally pushed a pregnant woman in the course of committing
this offense. The rejection of the State's plea offer at the time
would have exposed Sasala to a potential thirty-year term of
imprisonment subject to the parole restrictions under NERA. See
N.J.S.A. 2C:15-2(b).
We have previously held that to recover damages for an alleged
invalid conviction "the plaintiff must first prove 'that the
conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized
to make such determination, or called into question by a federal
court's issuance of a writ of habeas corpus.'" Alampi v. Russo,
345 N.J. Super. 360, 367 (App. Div. 2001) (quoting Heck v.
Humphrey, 512 U.S. 477, 486 (1994)). Sasala has not produced any
evidence to satisfy any of these requirements.
Affirmed.
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