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State v. F.G.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 24, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
F.G., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-03-0252.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 4, 2010

Before Judges Skillman and Fuentes.

On March 4, 2005, defendant pled guilty pursuant to a plea bargain to a charge of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(1). The victim of the sexual assault to which defendant pled guilty was his stepdaughter, who was under the age of thirteen at the time of the offense. The trial court sentenced defendant in accordance with the plea bargain to a twelve-year term of imprisonment. Defendant was also ordered to register under Megan's Law and to be subject to community supervision for life upon his release from incarceration. Defendant did not file a direct appeal from his conviction and sentence.

On April 23, 2007, defendant filed a petition for post- conviction relief and supporting affidavit. Defendant claimed that he had not received effective assistance of counsel; that he had not been provided with a Spanish interpreter when he was questioned by the police, during plea negotiations or at the plea hearing; and that he had been coerced into pleading guilty.

Defendant's affidavit included an allegation that at the time of his plea and sentence he "was represented by a privately hired attorney, Terrence Scott [, who] also was representing my step- daughter, the alleged victim in my case, in an unrelated criminal matter where she was defendant." Defendant sought an evidentiary hearing in connection with his petition.

After hearing oral argument by defense counsel and the prosecutor, the court issued an oral opinion which denied defendant's request for an evidentiary hearing and his petition for post-conviction relief. The court's opinion did not refer to defendant's allegation that the attorney who represented him at the time of his plea also represented the victim in connection with criminal charges against her.

On appeal from the denial of his petition, defendant presents the following arguments:

POINT I:

THE PCR COURT ERRED IN DENYING THE PETITION; AND IN DENYING THE REQUESTED EVIDENTIARY HEARING.

POINT II:

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE FROM PCR COUNSEL FOR FAILING TO RAISE THE ISSUES IN DEFENDANT'S PRO SE BRIEF (NOT RAISED BELOW).

POINT III:

THE IMPOSITION OF THE STATEWIDE SEXUAL ASSAULT NURSE EXAMINER PROGRAM PENALTY WAS ILLEGAL (NOT RAISED BELOW).

The prosecutor has filed an answering letter brief which acknowledges that the order denying defendant's petition must be vacated and the case remanded for an evidentiary hearing:

Upon examination of the issues raised in the defense brief in the referenced matter, the State submits this matter should be remanded back to the trial court for a post-conviction relief evidentiary hearing. The State has become aware that counsel for defendant [G] at the plea and sentencing, Terence M. Scott, Esq., had previously represented [G's] daughter, the victim whom defendant pleaded guilty to sexually molesting in the instant matter. Although the matter in which Mr. Scott represented the victim apparently was unrelated to the instant matter, the fact that Mr. Scott did represent a person who later became a victim of a client he represented, is troubling. It raises a question of whether a conflict of interest existed when he began representing [G]. An evidentiary hearing would allow the Law Division judge to flush out the details of what had occurred regarding whether a conflict of interest existed, including whether a valid waiver of the conflict was or could be executed, should a conflict be determined by the court to have existed. In addition, the issue of whether the post-conviction relief defense counsel was ineffective could also be explored insofar as the issue of the conflict has not been raised before the trial court.

While the State is not conceding at this point the validity of the defense position regarding either the conflict of interest or the ineffective assistance of counsel issues now being raised by appellate defense counsel, the State nonetheless submits the interest of justice requires that the matter be remanded to the Law Division. An evidentiary hearing would allow a record to be made-a task which cannot be accomplished at the appellate level. Should it be determined by the Law Division that a conflict of interest did exist which could not be waived by [G], or should the court determine that [G] was denied effective assistance of counsel at his post-conviction relief hearing, then the instant appeal would then become moot.

This court concludes essentially for the reasons set forth in the prosecutor's letter that this case must be remanded for an evidentiary hearing on defendant's claim of ineffective assistance of counsel at the time of his plea, including in particular the effect of that counsel's alleged conflict of interest. Accordingly, we vacate the order denying defendant's petition and remand the case for an evidentiary hearing. The court should allow defendant, if he chooses, also to present evidence that he is not fluent in English and that the failure to assign him a Spanish interpreter prevented him from effectively communicating with the police, his trial counsel and the trial court. In addition, the trial court is directed to consider defendant's claim that the Statewide Sexual Assault Nurse Examiner penalty was unlawfully imposed upon him. On the remand, the court should assign new counsel to represent defendant on his petition. The remand shall be completed within forty-five days of the filing of this opinion. Jurisdiction is not retained.

20100224

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