DARRELL B. BROWN VS. STATE OF NEW JERSEY (L-1538-16, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-1811-18T2
DARRELL B. BROWN,
Plaintiff-Appellant,
v.
STATE OF NEW JERSEY,
MORRIS COUNTY OFFICE
OF THE PUBLIC DEFENDER
and JOEL HARRIS, ESQ.,
Defendants-Respondents.
___________________________
Argued February 3, 2020 – Decided March 3, 2020
Before Judges Sabatino and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-1538-16.
David Howard Kaplan argued the cause for appellant
(David Howard Kaplan, of counsel and on the brief;
Jeffrey Zajac, on the brief).
Bryan Edward Lucas, Deputy Attorney General, argued
the cause for respondents (Gurbir S. Grewal, Attorney
General, attorney; Jane C. Schuster, Assistant Attorney
General, of counsel; Bryan Edward Lucas, on the brief).
PER CURIAM
Plaintiff Darrell B. Brown appeals from a Law Division order granting
summary judgment dismissing his claims of legal malpractice and pain and
suffering against defendants Joel Harris, Esq., and the State of New Jersey,
Morris County Office of the Public Defender ("OPD"). The court ruled that
Brown was unable to demonstrate the damages prong of his legal malpractice
claim; in turn, his pain and suffering claim was rendered moot. We affirm.
I.
A Union County Grand Jury returned Indictment No. 04-07-7141 charging
Brown with third-degree eluding, N.J.S.A. 2C:29-2(b). A Morris County Grand
Jury returned two indictments. Indictment No. 04-12-1587 charged him with
third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (the simple possession
count). Indictment No. 04-12-1523 charged him with third-degree possession
of CDS, N.J.S.A. 2C:35-10(a)(1); second-degree possession of CDS with intent
to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2); and third-
degree possession of CDS with intent to distribute within 1000 feet of a school
property, N.J.S.A. 2C:35-7 (the school zone count).
In July 2005, Brown pleaded guilty to the eluding, simple possession, and
school zone counts. He also pleaded guilty to two driving while intoxicated
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charges, N.J.S.A. 39:4-50. The following month he was sentenced to three
concurrent probationary terms. On the eluding count, Brown was sentenced to
a three-year term of drug court probation with an alternative sentence of a five-
year prison term. On the school zone count, Brown was sentenced to a five-year
term of drug court probation with an alternative sentence of a ten-year prison
term with a fifty-eight-month period of parole ineligibility. On the simple
possession count, Brown was sentenced to a three-year term of drug court
probation with an alternative sentence of a five-year prison term. The court also
imposed required fines, penalties, and driver's license suspensions.
In June 2010, nearly one month before his expected graduation from drug
court, Brown was arrested and charged with violation of probation (VOP) based
on his admitted use of heroin and cocaine. Brown was represented on the VOP
by Joel Harris, a "pool attorney" designated by the OPD. Brown pleaded guilty.
At the sentencing hearing, the court noted Brown's extensive criminal
history that includes eleven prior indictable convictions and numerous prior
disorderly persons offense convictions. He has been previously convicted of
possession of CDS with intent to distribute. The court found aggravating factors
three (risk of re-offense), six (prior criminal record), and nine (need for
deterrence), N.J.S.A. 2C:44-1(a)(3), (6), and (9). The court also found
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mitigating factor ten (likely to respond affirmatively to probationary treatment),
N.J.S.A. 2C:44-1(b)(10), no longer applied.
Brown was terminated from drug court and resentenced on the school zone
count to a five-year term subject to a twenty-month period of parole ineligibility.
Brown was resentenced on the eluding count to a five-year prison term to run
consecutively to the school zone count. Brown was resentenced to a concurrent
five-year term on the simple possession count.
Although no one raised the issue during the sentencing hearing, the State
acknowledges that the VOP sentences relating to the eluding and simple
possession convictions violated the double jeopardy clause. Brown had already
finished his three-year probation terms on those two convictions.
In contrast, Brown's VOP conviction on the school zone count was valid.
Because of his prior conviction for possession of CDS with intent to distribute,
Brown was eligible to be sentenced to an extended term of five to ten years
pursuant to N.J.S.A. 2C:43-7(a)(4), and a mandatory period of parole
ineligibility "at, or between, one-third and one-half of the sentence imposed by
the court or three years, whichever is greater," pursuant to N.J.S.A. 2C:43-6(f).
Accordingly, if Brown were sentenced to a five-year term on the school zone
count, he would not have been eligible for parole for three years. N.J.S.A.
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2C:43-6(f). If he were sentenced to a ten-year term, he would not have been
eligible for parole for the first forty to sixty months.
In addition, Brown's sentence was subject to N.J.S.A. 2C:35-12, which
requires the mandatory term with parole ineligibility be imposed unless the
defendant pleads guilty pursuant to a negotiated plea agreement which provides
for a lesser term or period of parole ineligibility. "In that event, the court at
sentencing shall not impose a lesser term of imprisonment [or] lesser period of
parole ineligibility . . . than that expressly provided for under the terms of the
plea. . . . " N.J.S.A. 2C:35-12.
Despite the mandate of N.J.S.A. 2C:35-12, the court sentenced Brown to
a five-year term subject to a twenty-month period of parole ineligibility on the
school zone count, rather than imposing the alternate sentence set forth in the
plea agreement. Brown, still represented by Harris, moved for reconsideration
of the sentence on grounds other than the improper sentences on the two VOPs.
Reconsideration was denied. Brown did not file a direct appeal from the
sentence. Neither did the State.
Brown was paroled on March 15, 2012. His parole was subsequently
revoked in September 2012 after he was accused of assaulting a drug treatment
provider. Brown remained incarcerated until paroled again in April 2014.
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Brown's parole was revoked again in January 2015 after he relapsed while in
drug treatment. Harris admitted the drug court should not have sentenced Brown
to prison terms on those two VOPs.
On February 23, 2015, Brown filed a pro se petition for post-conviction
relief (PCR). Counsel was appointed to represent Brown. In September 2015,
the PCR court vacated the VOP sentences on the eluding and simple possession
convictions because Brown had already completed the three-year probation
terms on those charges in 2008. The PCR court did not modify the VOP sentence
on the school zone count.
Brown filed this legal malpractice action in July 2016. In his complaint,
Brown alleged legal malpractice (count one) and sought recovery for alleged
pain and suffering related to emotional distress resulting from his incarceration
under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3 (count
two). Brown alleged the custodial sentences imposed for violating the two
probationary terms that were already completed were illegal and "defendants
failed to take the necessary legal action to address the sentencing errors." Brown
claimed that he served custodial sentences that he would not have served but for
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defendants' negligence, causing him to suffer a substantial loss of liberty while
serving the additional time in prison and on parole.1
Discovery was completed on June 4, 2018. Shortly thereafter, defendants
moved for summary judgment. Defendants contended Brown could not
establish that he sustained any damages resulting from the VOP sentences
because Brown was sentenced to a shorter prison term than required by statute
and under the terms of the plea agreement.
On December 7, 2018, the motion court issued an order and oral decision
granting summary judgment dismissing the complaint. The court accepted as
true, for purposes of the motion, that Harris failed to obtain and review the plea
agreement forms and the transcript of Brown's 2005 sentencing hearing.
The motion court engaged in the following analysis. It was undisputed
that an attorney-client relationship existed, and that Harris owed Brown a duty
of care. For purposes of the motion, defendants accepted that attorneys "must
provide . . . services with reasonable knowledge, skill, and diligence which
includes undertaking a careful investigation of the facts of the matter,
1
Notably, Brown's amended complaint did not include the TCA count. Brown
did not move to further amend the complaint to restore the deleted TCA count.
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formulation of legal strategy, filing of appropriate papers, and maintenance of
communication with a client."
The court explained Brown must demonstrate that he sustained "actual
damages" proximately caused by Harris' negligence. Applied here, Brown must
demonstrate that but for Harris' breach of duty, his VOP sentence "would have
been less than the one he received," quoting Cortez v. Gindhardt, 435 N.J. Super.
589, 605 (App. Div. 2014). The motion court concluded Brown failed to do so.
It noted Harris did not represent Brown in 2005. Based on the numerous
charges he initially faced, Brown faced a maximum exposure of a thirty-year
aggregate extended range sentence subject to a ten-year period of parole
ineligibility. The court stated Brown's defense counsel at the time negotiated
"the best possible outcome," a drug court probationary sentence. To secure that
outcome, plaintiff entered into a plea agreement that included an alternative
sentence of an extended ten-year term subject to fifty-eight months of parole
ineligibility on the school zone count, as mandated by N.J.S.A. 2C:43-6(f) and
N.J.S.A. 2C:43-7(a)(4), due to Brown's prior conviction for possession of CDS
with intent to distribute in a school zone. He was also eligible to be sentenced
as a persistent offender to an extended term.
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The court further found Harris said nothing to correct the prosecutor's
misstatements during the VOP sentencing. However, Brown's expert did "not
and [could not] assert that the recommended [alternative] sentence was illegal"
based on Brown's prior conviction. Nor did Brown's expert dispute that the State
could have moved for, and the court could have granted, a mandatory ten-year
sentence subject to fifty-eight months of parole ineligibility on the school zone
count. Instead, Brown's expert opined the court lacked authority to impose the
mandatory extended term that the State never sought. The expert concluded that
Harris' failure to address this issue was malpractice because, absent such
advocacy, we will never know what the sentencing court would have done.
The motion court concluded the correct basis for the longer prison term
was enforcement of the mandatory extended term, not imposition of a
consecutive term on the eluding count. It likened this to a Catch-22 situation
"that all centers on speculation." It noted Harris said "nothing" at the sentencing
hearing because he realized the sentencing court issued a sentence that was
"significantly shorter than the one contemplated in the plea agreement." Finding
that Brown's expert's opinion is premised on speculation, the motion court
determined that no rational juror could conclude that Brown suffered damages
as a result of Harris' failure to address the sentencing issue. Most significantly,
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it found Brown could not demonstrate that his sentence "would have been less
than the one he received," quoting Cortez, 435 N.J. Super. at 605. Moreover,
because the sentence was mandatory, the sentencing court was "required" to
impose a ten-year, must serve fifty-eight-month sentence.
As to the TCA claim premised upon emotional distress, the motion court
noted that count was not included in the amended complaint plaintiff filed.
Therefore, although it could not determine whether there were disputed issues
of material fact as to emotional distress damages, or the TCA's verbal threshold,
by dismissing the malpractice claim the court determined it need not reach the
emotional distress claim. This appeal followed.
Plaintiff advances the following arguments on appeal:
Point I:
IN HOLDING THAT THE PLAINTIFF FAILED TO
DEMONSTRATE A PRIMA FACIE CASE OF
LEGAL MALPRACTICE, THE LAW DIVISION
COMMITTED REVERSIBLE ERROR IN
GRANTING SUMMARY JUDGMENT TO THE
DEFENDANTS.
A. The Plaintiff Established a Prima Facie Case of
Legal Malpractice.
B. The Tenor of the VOP Sentencing Hearing Would
Have Been Fundamentally Different If Harris Had
Informed the Court That There Was Only One and Not
Three VOP Violations Before It.
A-1811-18T2
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C. The Law Division's Reasoning In Support of Its
Decision Was Untenable and Without Support.
II.
Our review of a ruling on summary judgment is de novo, applying the
same legal standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59
(2015). We accord no special deference to the trial judge's conclusions on issues
of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
A court must grant summary judgment "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 . . . as a matter of law." Town of
Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)). "[W]hen
reviewing summary judgment motions, we must view the 'evidential materials .
. . in the light most favorable to the non-moving party.'" Puder v. Buechel, 183
N.J. 428, 440 (2005) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995)). We apply these well-settled principles to this appeal.
The governing law of legal malpractice is likewise well-established.
Legal malpractice suits are grounded in the tort of negligence. McGrogan v.
Till, 167 N.J. 414, 425 (2001) (citations omitted). In order to survive summary
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judgment, Brown had to demonstrate that his legal malpractice claim was viable.
Cortez, 435 N.J. Super. at 598. To establish legal malpractice, a claimant must
demonstrate that (1) an attorney-client relationship creating a duty of care
existed, (2) the duty was breached, (3) the breach proximately caused damages,
and (4) actual damages were incurred. Ibid. (quoting Sommers v. McKinney,
287 N.J. Super. 1, 9-10 (App. Div. 1996)). A lawyer is obligated "to exercise
that degree of reasonable knowledge and skill that lawyers of ordina ry ability
and skill possess and exercise." St. Pius X House of Retreats v. Diocese of
Camden, 88 N.J. 571, 588 (1982).
"Actual damages . . . are real and substantial as opposed to speculative."
Cortez, 435 N.J. Super. at 603 (quoting Grunwald v. Bronkesh, 131 N.J. 483,
495 (1993)). Damages must be supported by more than "conjecture, surmise or
suspicion." 2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 488
(App. Div. 1994) (quoting Long v. Landy, 35 N.J. 44, 54 (1961)).
"Ordinarily, the measure of damages is what result the client would have
obtained in the absence of attorney negligence." Cortez, 435 N.J. Super. at 604
(citing 2175 Lemoine Ave., 272 N.J. Super. at 488)). "Therefore, the client
bears the burden of showing, by a preponderance of the competent, credible
evidence, 'what injuries were suffered as a proximate consequence of the
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attorney's breach of duty.'" Ibid. (quoting 2175 Lemoine Ave., 272 N.J. Super.
at 488). "Thus, to prove such injury, 'the client must demonstrate that he or she
would have prevailed, or would have won materially more . . . but for the alleged
substandard performance." Ibid. (alteration in original) (quoting Lerner v.
Laufer, 359 N.J. Super. 201, 221 (App. Div. 2003)).
Brown "was required to demonstrate that the missed opportunity had
actual value." Id. at 604-05. He bore the burden to show that the court would
have imposed a more favorable aggregate sentence than the one he received.
See id. at 605. The motion court correctly concluded he failed to do so.
To defeat the motion for summary judgment, Brown had to "come forward
with evidence that creates a genuine issue of material fact." Ibid. (quoting
Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App.
Div. 2012)); see R. 4:46-2. "An issue of fact is genuine only if, considering the
burden of persuasion at trial, the evidence submitted by the parties on the
motion, together with all legitimate inferences therefrom favoring the non-
moving party, would require submission of the issue to the trier of fact. " Ibid.
(quoting R. 4:46-2(c)). "Competent opposition requires competent evidential
material beyond mere speculation and fanciful arguments." Ibid. (internal
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quotation marks omitted) (quoting Hoffman v. Asseenontv.com, Inc., 404 N.J.
Super. 415, 426 (App. Div. 2009)).
Here, Brown provided no evidence that the sentencing court would have
imposed a lesser aggregate sentence if Harris had argued that the probationary
terms on the eluding and simple possession counts had expired. Rather, Brown
speculates that he would only have received the five-year, must serve twenty
months sentence on the school zone count. We are unpersuaded by this
argument.
Brown ignores the fact that the negotiated alternative sentence on the
school zone count was a ten-year term with a fifty-eight-month period of parole
ineligibility. Brown argues that the sentencing court could not impose the
alternate extended sentence because it did not formally move to do so at
sentencing. We disagree.
A defendant sentenced for third-degree possession with intent to distribute
a CDS in a school zone, "who has been previously convicted of manufacturing,
distributing, dispensing or possessing with intent to distribute a [CDS] or
controlled substance analog, shall upon application of the prosecuting attorney
be sentenced by the court to an extended term." N.J.S.A. 2C:43–6(f). Defendant
does not dispute he was extended-term eligible; rather, he bases his argument
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on the N.J.S.A. 2C:43-6(f) requirement that the prosecuting attorney make a
formal application for the extended-term sentence.
Rule 3:21-4(e) provides that a motion for an extended term of
imprisonment pursuant to N.J.S.A. 2C:43-6(f) shall be filed by the State within
fourteen days of the entry of the defendant's guilty plea or return of the verdict.
The Rule also provides:
Where the defendant is pleading guilty pursuant to a
negotiated disposition, the prosecutor shall make the
motion at or prior to the plea. If the negotiated
disposition includes the recommendation of an
extended term, the prosecutor's oral notice and the
recordation of the extended term exposure in the plea
form completed by defendant and reviewed on the
record shall serve as the State's motion.
[R. 3:21–4(e).]
Here, defendant accepted the State's plea offer under which the State
recommended a five-year special probationary term in drug court and an
alternative extended-term ten-year custodial sentence with a fifty-eight-month
period of parole ineligibility on the school zone count. The plea form defendant
signed included the State's sentencing recommendation. Moreover, defendant
was advised during his plea hearing that he would receive special drug court
probation and the alternate custodial sentence.
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The State's communications during the plea process and hearing, coupled
with the information contained in the plea form, constituted the State’s
application for an extended term. R. 3:21-4(e). We are satisfied that imposition
of an extended-term sentence would have been in accordance with law because
the State made an application for an extended-term sentence as required under
N.J.S.A. 2C:43-6(f). Defendant’s alternative sentence, therefore, was not
illegal. See State v. Acevedo, 205 N.J. 40, 45 (2011) ("an illegal sentence is one
that 'exceeds the maximum penalty provided in the Code for a particular offense'
or a sentence 'not imposed in accordance with law'") (quoting State v. Murray,
162 N.J. 240, 247 (2000))).
The State was not required to file a new application for an extended-term
sentence under N.J.S.A. 2C:43-6(f) following defendant's plea to the violation
of his special drug court probation. The custodial sentence of ten years with a
fifty-eight-month period of parole ineligibility was properly included as an
alternative sentence to his special drug court probation. State v. Bishop, 429
N.J. Super. 533, 551-52 (App. Div. 2013), aff’d, 223 N.J. 290 (2015).
"[M]andatory periods of parole ineligibility and mandatory extended term
provisions that existed at the time of original sentencing survive during the term
of special probation and remain applicable at the time of resentencing upon
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permanent revocation of special probation." Id. at 536. Following Brown's plea
to the VOP, and the permanent revocation of his special drug court probation,
"[t]he court had the authority to impose any lawful sentence not to exceed that
recommended as an alternative in the plea agreement." Id. at 551; N.J.S.A.
2C:35-14(f)(4).
Moreover, as previously explained, Brown's sentence was subject to
N.J.S.A. 2C:35-12, which prohibited sentencing Brown to "a lesser term of
imprisonment [or] lesser period of parole ineligibility . . . than that expressly
provided for under the terms of the plea."
The alternative sentence is significantly harsher than the aggregate
sentence Brown received. Brown received an aggregate ten-year term subject
to a twenty-month period of parole ineligibility on the school zone count. He
thus had to serve forty months before becoming eligible for parole , comprised
of twenty months on the school zone count and twenty months on the eluding
count. See N.J.S.A. 30:4-123.51(a) ("Each adult inmate sentenced to a term of
incarceration . . . shall become primarily eligible for parole after having served
any judicial or statutory mandatory minimum term, or one-third of the sentence
imposed where no mandatory minimum term has been imposed . . . .").
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The alternative mandatory minimum sentence on the school zone count
was a ten-year term subject to fifty-eight months of parole ineligibility. The
parole ineligibility period is eighteen months longer. In addition, commutation
time for good behavior pursuant to N.J.S.A. 30:4-140, and work credits pursuant
to N.J.S.A. 30:4-92, "shall only be awarded subsequent to the expiration of the
[mandatory minimum] term." N.J.S.A. 30:4-123.51(a). Therefore, Brown
would not have been eligible for such credits for an additional eighteen months
if the alternative sentence was imposed.
Brown has presented no evidence to demonstrate that he would have
received a more favorable aggregate sentence if Harris objected to the sentences
imposed on the eluding and simple possession counts. He likewise has not
demonstrated that he would have received a more favorable sentence if he had
filed a direct appeal. Indeed, had Brown appealed his sentence, this court would
have reversed the illegal sentence imposed on the school zone count, and
remanded, directing the sentencing court to impose the mandatory minimum
extended sentence for that offense. 2 Moreover, the State would likely have
2
An illegal sentence may be corrected at any time. State v. Tavares, 286 N.J.
Super. 610, 617 (App. Div. 1996). Although the parties did not raise this issue
before the sentencing court, "a reviewing court is not free to ignore an illegal
sentence," State v. Moore, 377 N.J. Super. 445, 450 (App. Div. 2005) (citing
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objected during the sentencing hearing if the consecutive sentence on the
eluding counts were not imposed. Further, the State was free to appeal from the
illegal sentence at any time before Brown completed his sentence. State v.
Schubert, 212 N.J. 295, 310-11 (2012); R. 3:21-10(b).
For these reasons, Brown is unable to demonstrate that he would have
received a lesser aggregate sentence if Harris had informed the sentencing court
that Brown could not be sentenced for the VOPs on the eluding and simple
possession counts. Nor can Brown demonstrate that he would have served less
actual prison time before being paroled. Thus, Brown's legal malpractice claim
rests upon an alleged injury "that is based upon mere speculation, and was
correctly dismissed." Cortez, 435 N.J. Super. at 607.
Affirmed.
State v. Flores, 228 N.J. Super. 586, 594 (App. Div. 1988)), and should correct
it, Tavares, 286 N.J. Super. at 617.
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