On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 89-07-1943.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 11, 2009
Before Judges C.L. Miniman and King.
Defendant William Kitsch appeals from the denial of his petition for post-conviction relief (PCR) respecting his plea of guilty to third-degree arson on October 2, 1989. We affirm in part and reverse and remand in part.
The circumstances of this case are highly unusual. Defendant was indicted on July 26, 1989, and charged with one count of arson in connection with a fire on June 21, 1989, that damaged a barn on property owned by James Hutton on Tenth Avenue in Dorothy. After pleading guilty, defendant was sentenced to probation for two years with thirty days in the county jail. He served his sentence and completed probation without violation.
In 2003 defendant was charged with federal weapons offenses based on his 1989 arson conviction. As a result, defendant petitioned for PCR in February 2004, asking that the arson conviction be set aside. Defendant alleged ineffective assistance of counsel because counsel had not moved to dismiss the indictment, withdraw the guilty plea, and appeal the Prosecutor's denial of pretrial intervention (PTI). The PCR judge denied the petition without an evidentiary hearing, concluding that the petition was time-barred. Alternatively, the judge determined that the guilty plea was valid and that defendant had not established a prima facie case of ineffective assistance of counsel because the cited failures were not as a matter of law ineffective assistance of counsel. This appeal followed.
In the months leading up to the fire, defendant worked as an undercover informant for the Atlantic County Prosecutor's narcotics task force. He volunteered to do this because his neighbor, Dino A. Starn, who rented Hutton's property, told him that he was making homemade bombs and talked about blowing up cars. Starn also called defendant's fifteen-year-old daughter, engaged her in a sexual conversation, and made advances to her, which he had also done with other teenage girls in the neighborhood. Defendant knew that Starn had a marijuana-growing operation in his barn and so defendant offered to help the narcotics task force to investigate this operation.
A narcotics officer with an alias of "Billy Cross" instructed defendant to make "narcotics buys" from Starn, but after several weeks defendant was still unsuccessful. "Cross" accused defendant of "protecting" Starn by purposely not making a buy, that such protection involved a "conspiracy" with Starn, and that the task force would "take down" and "charge" defendant if he did not get a bust. "Cross" told defendant "I don't care how you get it--you get me a bust!"
As a result of this conversation and because he learned that Starn had harassed another teenage girl, defendant decided to initiate a fire at the barn as a means of revealing the marijuana-growing operation that law enforcement wanted him to help uncover. About twenty minutes after he started the fire, defendant called the fire department to report the fire. Defendant asserted prior to sentencing that he did not intend to cause any real damage to the barn, but only to bring to light the activities in it. As a result of the arson investigation, the authorities discovered the marijuana-growing operation in the barn and discovered explosives there as well.
After defendant was arrested, he attended a meeting to discuss another investigation on which he had been working and was told that the arson had compromised that investigation. Defendant certified:
Toward the end of that meeting Lt. Walton apprised the Petitioner what his plans were.
The Petitioner responded that he was going to Philadelphia to work, and the Petitioner asked about the possibility of Expungement, of his record. Lt. Walton apprised the Petitioner that the arson charge did not qualify for the expungement program per se, but that the Prosecutor could "set it aside." The term sounded technical at the time, so the Petitioner asked the meaning.
The explanation came that the Prosecutor had certain avenues available to him and Detective Walton did ...