On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 95-05-1082, 95-10-2368, 96-04-0743 and 96-05-1020.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2008
Before Judges Fisher, C.L. Miniman and Baxter.
In this appeal, we reverse the denial of post-conviction relief because trial counsel's representation of both defendant and Charles Cottman, who allegedly participated in crimes with defendant, placed counsel in a per se conflict of interest. Because the conflict arose between the entry of a guilty plea but before sentencing, there is no cause to disturb the plea, but defendant is entitled to be resentenced following a determination of what might have occurred had defendant sought to cooperate with law enforcement regarding the Cottman prosecution.
The record on appeal reveals that defendant entered a plea of guilty in 1996 to weapon and drug offenses. He was sentenced to an aggregate twenty-four-year term of imprisonment, with a twelve-year period of parole ineligibility. He did not appeal.
Defendant filed a petition for post-conviction relief in 2001 that was eventually denied in 2004. He appealed, raising numerous issues, including an argument that he was denied the effective assistance of counsel because his trial attorney, John Bjorklund, Esq., had also been assigned to represent Charles Cottman, an individual alleged to have been involved in criminal activities with defendant. We rejected most of defendant's contentions, but we agreed that defendant had made a "prima facie showing that his trial counsel had a conflict of interest and that the conflict created a potential for prejudice"; we remanded for further exploration of this issue at an evidentiary hearing. State v. Alexander, No. A-2694-04T4 (May 12, 2006) (slip opinion at 3), certif. denied, 188 N.J. 220 (2006).
Following our remand, the parties agreed that a hearing was unnecessary in light of their stipulation of facts. The parties stipulated: that, on June 13, 1996, when Bjorklund was representing defendant, he was also assigned by the Public Defender's Office to represent Cottman; that Bjorklund received discovery from the Public Defender's Office regarding Cottman on that same date; and that defendant was still representing both defendant and Cottman when defendant was sentenced on July 26, 1996. They also stipulated: that, if called,*fn1 Bjorklund would testify that he had in his possession no files concerning either this matter or Cottman's matter; that he had no recollection of when he received the discovery in Cottman's matter; and that if he had known there was a conflict, he would have ceased representing defendant.
In light of these stipulated facts, defendant argued during the remand proceedings that, prior to sentence being passed in this case, Bjorklund not only had information that his other client, Cottman, was a potential witness against defendant, but also that the discovery provided revealed that the State had evidence suggesting defendant and Cottman were involved in witness tampering and threatening witnesses with regard to a robbery--information that made defendant a potential witness against Cottman, and vice versa. Consequently, defendant argued to the PCR judge that defendant was in a position to incriminate Cottman and, in that way, garner favor from the prosecutor in connection with this case, or otherwise seek and potentially obtain the benefit of a mitigating factor at the time of sentencing. See N.J.S.A. 2C:44-1(b)(12).
The PCR judge inferred from the stipulated facts that the State never sought defendant's cooperation with regard to its prosecution against Cottman and, "almost as a virtual impossibility," there "was no likelihood of the defendant having suffered prejudice" from Bjorklund's dual representation. The judge, for these and other reasons set forth in an oral decision, denied the PCR petition by order entered on June 21, 2007.
Defendant appealed, raising the following argument for our consideration:
DEFENDANT'S MOTION FOR POST CONVICTION RELIEF MUST BE GRANTED AS HIS LAWYER HAD AN ...