STATE OF NEW JERSEY VS. ALLAN O. PELCAK, JR. (11-02-0212 AND 11-02-0213, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-2868-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALLAN O. PELCAK, JR.,
Defendant-Appellant.
______________________________
Submitted September 24, 2018 – Decided October 31, 2018
Before Judges Sabatino and Sumners.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Accusation Nos. 11-02-0212
and 11-02-0213.
Joseph E. Krakora, Public Defender, attorney for
appellant (Brian D. Driscoll, Designated Counsel, on
the brief).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Jenny X. Zhang, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Allan O. Pelcak, Jr. appeals the denial of his post-conviction
relief (PCR) petition without an evidentiary hearing. He contends:
POINT I:
THE COURT ERRED IN FINDING THAT
COUNSEL'S ACTIONS IN HAVING THE
PSYCHIATRIC REPORT ALTERED DID NOT
CONSTITUTE DEFICIENT PERFORMANCE.
POINT II:
THE COURT ERRED IN FINDING THE CLAIM OF
INSUFFICIENT FACTUAL BASIS FOR THE PLEAS
BARRED BY RULE 3:22-4.
POINT III:
THE COURT ERRED IN DENYING THE CLAIM OF
INSUFFICIENT FACTUAL BASIS ON THE
MERITS.
POINT IV:
THE COURT FAILED TO ADDRESS THE CLAIM
OF INEFFECTIVE ASSISTANCE OF COUNSEL AT
SENTENCING.
POINT V:
THE APPELLATE DIVISION'S ORDER OF
REMAND FOR RESENTENCING WAS NOT
PROPERLY ADDRESSED BY THE TRIAL COURT.
A-2868-16T4
2
Having considered these arguments and the applicable law, we affirm in part,
and reverse in part and remand for an evidentiary hearing.
In September 2009, defendant was driving on Route 17 in Mahwah when
he saw his ex-wife drive past him. Believing that she was on her way to meet
with a co-worker to carpool to work, he drove to their meeting place at a hotel
parking lot to confront her about certain legal documents that she sent him
earlier that week. Upon arriving at the parking lot, defendant got out of his
sports utility vehicle and approached her with a sharp letter opener in his hand.
He then repeatedly stabbed her with enough force to knock her down. After she
regained her footing and called out for help, he got back in his vehicle and drove
directly into her. He drove away to Lyndhurst, where he abandoned his vehicle.
Defendant was subsequently arrested and charged with first-degree attempted
murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3, and third-degree hindering
apprehension, N.J.S.A. 2C:29-3(b)(1).
Over a year later, defendant, while being held at the Bergen County jail in
November 2010, was charged with third-degree aggravated assault on a county
corrections officer, N.J.S.A. 2C:12-1(b)(5)(h). The officer suffered broken ribs
and a concussion.
A-2868-16T4
3
In accordance with a negotiated plea agreement, defendant pled guilty in
February 2011, to first-degree attempted murder, third-degree hindering
apprehension, and assault on a corrections officer. The State agreed to
recommend that defendant be sentenced to an aggregate fourteen-year NERA,
N.J.S.A. 2C:43-7.2, prison term.
During the plea colloquy, prior to defendant stating that he understood the
charges and entering his pleas, his counsel advised the judge that defendant was
competent to stand trial based upon a psychiatric examination performed by the
defense's psychiatric expert witness. When defendant indicated he was unsure
why the doctor came to see him, counsel explained that it was necessary to assess
his competency to stand trial.
During defendant's plea to the charge of assaulting a corrections officer,
the judge had some concerns when defendant asked her whether he could be
found guilty if he thought the officer was "a demon" who was trying to kill him.
This caused the judge to ask him a series of questions, and after being satisfied
that he knew he was assaulting a corrections officer, the judge stated:
So if you're going to go with the route that he's a demon,
then I can't accept the factual basis. And if you're going
to go the route that he's a correction[s] officer, then I
can accept the factual basis. So the question is what
was he on November 28th of 2010?
A-2868-16T4
4
Defendant responded stating, "[h]e was a correction[s] officer." The judge
found that a factual basis for the aggravated assault of the corrections officer
was satisfied. The judge then asked defendant a series of questions regarding
the plea agreement, which led her to find that he was satisfied with his counsel's
services and that his pleas were entered into voluntarily without being forced,
threatened, or promised anything in return.
Following defendant's plea, the expert issued a report to counsel stating:
At the time of the alleged offen[se] [against his ex-wife,
defendant] suffered from diminished capacity. With
respect to the alleged offen[se] [against the corrections
officer], he was mentally insane and not criminally
responsible for his actions.
Yet, prior to defendant's sentencing, counsel wrote to the expert:
Your psychiatric report of [defendant] of March 12,
2011 was excellent. However, [he] has already pleaded
guilty to the charge of attacking the correction[s]
officer at the Bergen County Jail and the sentencing
judge therefore will not sentence him if he was
"mentally insane and not criminally responsible" for his
actions as stated in your report. Please be kind enough
to change your conclusion so that it is consistent with
the legal language I sent you on March 14, 2011 as
attached hereto. Specifically, [defendant] suffered "a
severe diminution of mental capacity for the assault on
the officer."
A-2868-16T4
5
The expert complied with the request and changed his report to read that as to
the assault on the corrections officer, defendant "had a severe diminution of
mental capacity."
Defendant was sentenced to an aggregate fourteen-year NERA prison term
in accordance with the plea agreement. On both accusations, the judge applied
aggravating factors: one, the nature and circumstances of the offense, including
whether it was committed in an especially heinous, cruel, or depraved manner,
N.J.S.A. 2C:44-1(a)(1); three, the risk to commit another offense, N.J.S.A.
2C:44-1(a)(3); and nine, the need to deter, N.J.S.A. 2C:44 -1(a)(9). Although
the judge applied mitigating factor seven, no prior criminal history, N.J.S.A.
2C:44-1(b)(7), the Judgement of Convictions (JOCs) noted "[d]efendant has
prior history of domestic violence [and] violation of restraining orders."
Thereafter, defendant did not appeal his conviction, but appealed his
sentence as excessive. An excessive sentencing panel of this court remanded
the matter for resentencing because of concerns that there were no certified
records confirming the JOCs' reference to defendant's history of violating
restraining orders. Thus, the State was ordered to obtain the records of those
orders and consider them at defendant's resentencing.
A-2868-16T4
6
At resentencing, the judge was advised defendant had a history of
domestic violence from Rockland County in New York State prior to the
attempted murder of his ex-wife, but there was no record that he was convicted
of violating any domestic violence restraining orders. The judge amended the
JOC only for the attempted murder and hindering offenses to read: “[t]he
defendant has no history of prior indictable criminal convictions[.] Defendant
has a prior history of a domestic violence violation of restraining order of a
Rockland County restraining order based on the State's investigation and
included in defendant's discovery." She did not alter defendant's sentences on
the convictions.
Almost a year later, defendant filed a PCR petition in August 2015. He
alleged that he received ineffective assistance because trial counsel: failed to
insure that he provided a factual basis to his first-degree attempted murder plea;
failed to honor his request to appeal his convictions; and improperly directed the
expert to alter his original report for sentencing, from indicating defendant was
"mentally insane and not criminally responsible for" assaulting the corrections
officer to indicating "a severe diminution of mental capacity for the assault."
Explaining her reasoning in a written decision, the PCR judge denied
defendant's petition without an evidentiary hearing on the basis that he did not
A-2868-16T4
7
establish a prima facie case of ineffective assistance of counsel. She found his
claim that he did not provide sufficient factual basis for his plea agreement was
procedurally barred under Rule 3:22-4 because it should have been raised on
direct appeal. As to the claim's merits, the judge determined it was lacking based
on her finding that the trial judge "extensively questioned" defendant during the
plea to insure that he "was entering his plea freely and voluntarily."
As for counsel's request to the expert to change his report, the PCR judge
presumed the changed report was submitted at sentencing to argue "defendant's
diminished capacity warranted a lesser sentence, without enucleating the plea
agreement that the defendant had already accepted." The judge was "troubled
by trial counsel's suggested alteration of the report[]" and was "sensitive to
defendant's concern[s]," but found counsel's performance was not "deficient
under prevailing norms." She reasoned counsel's action was not objectively
deficient under Strickland 1 because he "successfully negotiated a global
resolution for three accusations against . . . defendant which resulted in an
aggregate sentence of fourteen years . . . on first[-]degree attempted murder
charge, and concurrent four-year terms of imprisonment on the remaining two
[third-degree] counts."
1
Strickland v. Washington, 466 U.S. 668, 687 (1984).
A-2868-16T4
8
The judge further found that the altered report did not prejudice defendant
under Strickland because it only effected the aggravated assault of the
corrections officer charge for which he received a flat four-year term that ran
concurrent with the two offenses against his ex-wife. She reasoned that had
defendant sought to employ an insanity defense concerning the charge of
aggravated assault against a corrections officer based upon the expert's initial
report, "his aggregate sentence would not have been affected," because he
received a four-year concurrent sentence for the offense. She further added in a
footnote that the State would have rebutted the defense with its own expert,
thereby "exposing him to a substantially longer period of incarceration" if his
defense was rejected by the trier of fact.
We look to the principles governing our review. To demonstrate
ineffective assistance of counsel, a defendant must satisfy the two -part
Strickland test by demonstrating that "counsel's performance was deficient," that
is, "that counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment," and "there is a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Strickland, 466 U.S. at 687, 694;
accord State v. Fritz, 105 N.J. 42, 58 (1987).
A-2868-16T4
9
A court reviewing a PCR petition based on claims of ineffective assistance
has the discretion to grant an evidentiary hearing if a defendant establishes a
prima facie showing in support of the requested relief. State v. Preciose, 129
N.J. 451, 462 (1992). The mere raising of a claim for PCR does not entitle a
defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154,
170 (App. Div. 1999). The court should only conduct a hearing if there are
disputed issues as to material facts regarding entitlement to PCR that cannot be
resolved based on the existing record. State v. Porter, 216 N.J. 343, 354 (2013).
In cases where the PCR judge does not conduct an evidentiary hearing,
we review the judge's determinations de novo. State v. Jackson, 454 N.J. Super.
284, 291 (App. Div. 2018) (citation omitted). A PCR petitioner carries the
burden to establish the grounds for relief by a preponderance of the credible
evidence. State v. Goodwin, 173 N.J. 583, 593 (2002) (citations omitted).
We first address the PCR judge's determination that defendant's
contention that counsel failed to insure that he provide a sufficient factual basis
for his plea agreement was procedurally barred under Rule 3:22-4 because it
should have been raised on direct appeal. Other than for enumerated exceptions,
Rule 3:22-4 bars a defendant from employing post-conviction relief to assert a
A-2868-16T4
10
claim that could have been raised at trial or on direct appeal. See State v. Nash,
212 N.J. 518, 546 (2013).
In this case, defendant should have raised the issue of his factual basis for
his plea agreement on direct appeal. However, he did not do so. Defendant's
appeal was limited to his claim that he received an excessive sentence. We
therefore agree with the PCR judge that this legal argument is procedurally
barred by Rule 3:22-4(a). Nonetheless, we will address the merits of defendant's
claim of ineffective assistance of counsel, as did the judge, because Rule 3:22-
4(a)(2) contains an express exception for claims of ineffective assistance of
counsel where that enforcement of the bar to preclude claims would result in
fundamental injustice.
Based upon our review of the record, defendant provided a sufficient
factual basis during his colloquy for the pled to offenses. For instance, to
establish the specific intent needed for attempted murder, defendant responded
"yes" when counsel asked him: "[b]ut you knew that as a result of stabbing her
with the letter opener, as a result of hitting her, that it could be murder, it could
result in her death. You understood that, did you not, and you so indicated to
me?" We thus agree with the judge that a factual basis for the attempted murder
was satisfied.
A-2868-16T4
11
With respect to assaulting the corrections officer, defendant admitted in
his plea colloquy to understanding the charge, and that he committed this crime
knowingly, purposely, or recklessly to cause bodily injury to the corrections
officer. After defendant asked the judge whether he would be found guilty if he
thought the corrections officer was trying to kill him, she asked a series of
questions to determine whether defendant knew that he was assaulting a
corrections officer. At the end of the questioning, defendant confirmed that he
knew he assaulted a corrections officer.
The judge then addressed the issue of defendant believing the corrections
officer was a demon. The judge asked defendant:
So if you're going to go with the route that he's a demon,
then I can't accept the factual basis. And if you're going
to go the route that he's a correction[s] officer, then I
can accept the factual basis. So the question is what
was he on November 28th of 2010?
Defendant responded by stating "he was a correction[s] officer." Thus, we agree
with the PCR judge that a factual basis for the aggravated assault of the
corrections officer was satisfied.
We next address defendant's contention that counsel was also ineffective
during sentencing. He argues: "[C]ounsel inexplicably spoke in a prosecutorial
fashion against [him]. He spoke at length about the horrible acts committed ,
A-2868-16T4
12
while making absolutely no argument in mitigation." Although this contention
was not addressed during the PCR oral argument, it was raised in defendant's
PCR brief. The judge, however, was remiss in addressing her written opinion
explaining the denial of PCR.
Rule 3:22-11 requires that the judge to "state separately [her] findings of
fact and conclusions of law." See also R. 1:7-4 ("[t]he court shall, by an opinion
or memorandum decision, either written or oral, find the facts and state its
conclusions of law thereon in all actions tried without a jury. . ."). Rather than
remanding this particular issue, we exercise our discretion to take original
jurisdiction under Rule 2:10-5 because the record allows us make fact-finding
decisions free of doubt. Tomaino v. Burman, 364 N.J. Super. 224, 234-35 (App.
Div. 2003).
During sentencing, counsel unceasingly argued for a sentence less than
the agreed upon fourteen years. He described defendant as a "considerate and
kind individual who has a love of his two children, who helped people, who
worked hard, who tried to better his life." Counsel proposed that the court
consider defendant's mental state and the "turmoil, the agony, the distress" that
surrounded his marriage to the victim. He even asked the judge not to deprive
defendant completely of ever being a father. He argued mitigating factors that
A-2868-16T4
13
should weigh in defendant's favor, such as his mental condition, the fact that he
has no prior record, and his excellent family background. Given the global
negotiated plea agreement of an aggregate fourteen-year prison term for the
charges of attempted murder, hindering apprehension, and assault of a
corrections officer – which clearly could have resulted in a much longer term
based on consecutive sentences – we do not perceive any ineffective assistance
by counsel at sentencing.
We, however, do not reach the same conclusion regarding counsel's
directing the expert to alter his psychiatric report about defendant. For the
following reasons, we remand for an evidentiary hearing because the directive
constitutes a prima facie case of ineffective assistance.
Defendant contends the alteration constitutes ineffective assistance
because the doctor's original assessment that he "was mentally insane and not
criminally responsible for his actions" against the corrections officer was a
possible affirmative defense to the accusation. By directing the doctor to change
the phrase to state that defendant suffered "a severe diminution of mental
capacity," defendant contends he was prejudiced by not being able to present the
defense. Defendant further asserts that he was prejudiced because if he persisted
and demanded a trial, it would have made it impossible to use the expert as a
A-2868-16T4
14
witness, having been completely discredited by his alteration of the report. The
State contends the judge's reasoning was a proper application of the Strickland
factors.
We conclude defendant has established on this discrete issue, a prima facie
case of ineffective assistance of counsel under Strickland. Absent some
reasonable explanation that might be provided at an evidentiary hearing, we see
no reason why counsel would have the expert amend his report by removing
language that could potentially support an affirmative defense of insanity to the
aggravated assault charge on the corrections officer. While we are in no position
based on the record before us as to assess the viability of an insanity defense,
the expert's original report warrants a prima facie finding that counsel should
not have requested it to be altered because it eliminated an expert opinion
supporting such a defense.
We glean further fault with the PCR judge's finding that defendant was
not prejudiced by counsel's action. The judge determined that since the insanity
defense only applied to the corrections officer incident, it did not affect the
conviction or fourteen-year concurrent sentence for defendant's attack on his ex-
wife. This reasoning fails to recognize that defendant might not have pled guilty
to aggravated assault on the corrections officer if the expert's initial opinion that
A-2868-16T4
15
he "was mentally insane and not criminally responsible for his actions" was
pursued in plea negotiations.
We are certainly mindful that trial counsel generally works closely with a
retained expert to present a report that expresses opinions consistent with the
law and the facts to further a specific litigation strategy. However, by having
an expert alter an opinion that might provide a defense to a crime, as is the case
here, counsel may have crossed the line of effective assistance and prejudiced
the client. Hence, on remand, it is necessary to find why defendant's counsel
thought it was in defendant's overall best interests to have the expert alter the
original report.
Affirmed in part, reversed in part and remanded for an evidentiary
hearing. We do not retain jurisdiction.
A-2868-16T4
16