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November 30, 2010


On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-01-0032.

Per curiam.


Submitted November 15, 2010 - Decided Before Judges Lisa and Reisner.

Defendant Carlos Cruz appeals from a December 12, 2008 order denying his petition for post-conviction relief (PCR). We remand this matter for further proceedings consistent with this opinion.


These are the most pertinent facts. In September 2002, defendant escaped from a residential drug program where he was undergoing treatment as part of his sentence for a burglary conviction. While he was at large, defendant participated in a robbery in which the victim was injured. He was apprehended, charged with robbery and escape, and sent back to prison to finish serving the burglary sentence. Under the terms of a plea bargain, defendant, who was represented by Peter Festa, Esq., pled guilty on June 30, 2003, to second-degree robbery and third-degree escape, in exchange for an eight-year sentence*fn1

subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with a concurrent three-year flat sentence for escape. Both of those sentences were to run concurrent to the burglary sentence defendant was then serving.

Defendant was sentenced on September 26, 2003. At the sentencing, Festa vigorously argued that defendant was entitled to jail credit from the time he was arrested on the robbery and escape charges until the date of sentencing. The judge rejected that argument, because, but for the escape, defendant would have been serving his burglary sentence. Therefore, when he was captured and returned to prison, the time served was only attributable to the burglary sentence. The judge also rejected arguments from Festa and from defendant that defendant should receive the same six-year NERA sentence as his co-defendants, because defendant had a much more extensive criminal record, including "six prior felony convictions."

Instead, the judge sentenced defendant in accordance with the terms of the plea agreement: an aggregate term of eight years, subject to NERA, with no jail credit. Immediately after imposing the sentence, the judge stated on the record that defendant had forty-five days to file an appeal and if he could not afford an attorney to file the appeal, an attorney would be appointed to represent him. After the judge completed his remarks, the defendant once again questioned why he was not receiving eleven months of jail credit. He then stated "I don't want this plea offer." The judge responded that defendant could "file whatever motions you want" and declined to entertain any further argument.

Defendant did not file a direct appeal from his conviction, but he filed a pro se PCR petition on March 19, 2008, within the five-year time limit set by Rule 3:22-12(a). In his petition he contended that his trial attorney rendered ineffective assistance of counsel by failing to file a direct appeal on his behalf challenging the disparity between defendant's sentence and the sentences imposed on the co-defendants. After counsel was appointed for him on the PCR petition, defendant filed a supplemental certification attesting that Festa had told him that he would "get the eleven months credit from my time in jail towards my prison sentence, and that is one of the reasons that I ended up entering the guilty plea." He also repeated his allegations that Festa failed to follow up on his request that an appeal be filed, and never told him that he could apply for Public Defender representation if he could not afford to pay Festa to file the appeal.

In another certification, defendant alleged that Festa also failed to honor his request to file a motion to withdraw the plea. Defendant also alleged that "about 21/2 years ago" he had sent in "paperwork" to file an appeal, to the Passaic County Criminal Case Management Office. He received no response and eventually learned from fellow inmates that he could file a PCR petition.

At oral argument on the PCR petition, on October 17, 2008, the judge asked the attorneys to brief the issue of whether a misunderstanding over jail credits, even if it had occurred, would justify allowing defendant to withdraw his plea. He also scheduled a hearing, to be held on December 12, 2008, at which the parties could present testimony from defendant and his former attorney, Festa.

At the hearing, Festa testified that defendant's family retained him to represent defendant on the robbery and escape charges. Festa understood at the time that defendant was being held in the county jail because of his original sentence; that is, even if defendant had made bail on the robbery charge, he would not have been released from jail due to the pre-existing sentence. According to Festa, before defendant agreed to accept the plea, Festa discussed with him what options he would have to challenge any sentence that might be imposed. Those included a PCR petition, "a motion to modify the sentence," or the filing of an appeal. Festa testified that after defendant was sentenced, he visited him in the holding cell and once again reviewed all of those options with him.

Throughout the process, Festa recalled, defendant "felt like he should be getting a better deal," but Festa convinced him that he was being offered "the best deal that he was going to get." Under questioning from the prosecutor, Festa also agreed that the State had considerable evidence against defendant, including confessions from the co-defendants implicating defendant and defendant's own confession to the crime. According to Festa, after the sentencing, defendant told him he "might be interested" in filing an appeal, but neither defendant nor his family ever retained Festa to file an appeal.

In response to the judge's question, Festa testified that he recalled arguing for jail credit, the judge denying it, and defendant's unhappiness with that ruling. Festa testified that was one of the issues on which he later told defendant he could appeal. No one asked Festa if he had promised defendant that he would definitely get jail credit in order to convince him to accept the plea agreement.

Next, defendant testified. According to defendant, he asked Festa to file an appeal and Festa said he would follow up on that request but did not do so. Defendant also testified that Festa "led me to believe that he was going to acquire that 11-month" jail credit. Defendant further contended that, after he was sentenced, he told Festa he wanted to file a motion to withdraw his plea. He admitted that the court advised him that he had the right to appeal within forty-five days and that he could "obtain the services of a Public Defender." Defendant admitted that he always understood that he was entitled to a Public Defender, but claimed he did not know how to go about applying for representation. In his testimony, defendant did not claim to be innocent of the robbery.

In closing arguments, defendant's PCR attorney did not specifically argue the jail credit issue, instead relying on the briefs filed, and in his decision the judge did not address defendant's contention that Festa allegedly induced him to plead guilty by promising him that he would get jail credits. He only addressed the appeal issue. In his oral opinion, the judge found that defendant did not retain Festa to file an appeal. He further found that defendant was told about his right to file an appeal and his right to have a Public Defender, but still waited five years to file anything. The judge therefore rejected defendant's claim of ineffective assistance of counsel and held that an appeal would be untimely under State v. Molina, 187 N.J. 531, 536 (2006).


On this appeal, defendant has abandoned his claim that his trial counsel failed to file an appeal for him, and he instead raises the following points for our consideration:


A. Defendant materially relied to his detriment upon plea counsel's erroneous advice that he was entitled to jail credit. But for plea counsel's erroneous advice, defendant would not have pled guilty.

B. Plea counsel misadvised defendant that defendant had the option of filing for a Reconsideration of Sentence to a drug treatment program.

C. The court should remand this case to the trial court to permit the defendant to withdraw his plea because plea counsel's incorrect advice cumulatively denied defendant the effective assistance of counsel.


A. Defendant received the ineffective assistance of PCR counsel in that PCR counsel failed to file a supplemental memorandum as requested by the PCR court; PCR counsel failed to argue the ineffective assistance of plea counsel as PCR counsel failed to pursue the issue of defendant's jail credit.

B. PCR counsel ineffectively represented the defendant in failing to defend the PCR Petition as the appropriate motion for defendant to obtain relief.

C. PCR counsel failed to pursue all of defendant's arguments.


Defendant contends that the PCR judge did not rule on defendant's claim that he should be allowed to withdraw his guilty plea due to ineffective assistance of plea counsel. He argues that he proved that claim before the PCR judge, but that if he did not, it was because his PCR counsel was ineffective in failing to develop the claim.

Defendant contends that Festa provided ineffective assistance of counsel when he allegedly induced defendant to plead guilty by promising him that he would get jail credits. Relying on Festa's testimony at the PCR hearing, he also contends that Festa inaccurately advised him that he could apply for re-sentencing to a drug treatment program, when in fact he had to serve the NERA portion of his sentence first. He also claims Festa inaccurately advised him that he could file a PCR petition to challenge the sentence. He further contends that his PCR counsel was ineffective for not pursuing these claims at the PCR hearing, as additional support for his contention that defendant was misled into pleading guilty.

We begin by considering the law that applies to ineffective assistance of counsel claims and motions to withdraw a guilty plea. We analyze ineffective assistance of counsel claims by applying the two-prong test established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). State v. Preciose, 129 N.J. 451, 463 (1992); State v. Fritz, 105 N.J. 42, 58 (1987). The first prong of Strickland requires a defendant to establish that counsel's performance was deficient. Preciose, supra, 129 463. "The second, and far more difficult, prong . . . is whether there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at 463-64 (quoting Strickland, supra, 466 U.S. at 694). See also Fritz, supra, 105 N.J. at 60--61. Even if counsel was ineffective, under the second Strickland prong, prejudice is not presumed and must be proven by the defendant. Fritz, supra, 105 N.J. at 60-61.

To justify withdrawing a guilty plea premised on ineffective assistance of plea counsel, a defendant must satisfy both prongs of the Strickland/Fritz standard, as modified to apply to guilty pleas rather than convictions after trial:

For a defendant to establish a case of ineffective assistance of counsel, the defendant must show that "[defense] counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" . . .

When a guilty plea is part of the equation, we have explained that "[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'; and (ii) 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'"

[State v. Nunez-Valdez, 200 N.J. 129, 138-39 (2009) (citations omitted).]

In applying the Strickland standard to guilty pleas, the United States Supreme Court has described the second prong as follows: "to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, U.S. (2010).

In addressing a motion to withdraw a guilty plea, our Supreme Court set forth the following standards:

[T]rial judges are to consider and balance four factors in evaluating motions to withdraw a guilty plea: (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.

[State v. Slater, 198 N.J. 145, 157-58 (2009).]

Having reviewed the record, we are compelled to agree with defendant that the trial judge simply failed to rule on one of the issues that defendant raised in his PCR petition: that his trial counsel misled him into pleading guilty by promising that he would receive eleven months worth of jail credits. We also agree with defendant that his PCR counsel was obligated to argue this point, and the court was obligated to rule on it. See State v. Webster, 187 N.J. 254, 257-58 (2006).

We note that, although the judge directed the attorneys to file supplemental briefs on the jail credit issue, there is some suggestion in this record that they did not do so. If the attorneys failed to file the required briefs, that might explain why the PCR judge, who otherwise handled this matter in an admirably thorough manner, omitted to rule on the plea withdrawal issue.

Based on the case law we reviewed above, defendant may face significant hurdles in establishing his plea withdrawal claim. However, we will not decide the claim for the first time on this appeal. It is more appropriate for the PCR judge to decide the credibility of the witnesses, find the facts in light of the testimony and the documentary evidence submitted with the PCR petition, and apply the law to those factual findings. Nor is it appropriate for us to further address defendant's claim of ineffective assistance of PCR counsel. See State v. Calloway, 275 N.J. Super. 13, 15 (App. Div. 1994).

Instead, we remand this matter to the PCR judge to address the issue of whether Festa rendered ineffective assistance in connection with the plea bargaining process and, if so, whether defendant should be permitted to withdraw his guilty plea. We leave to the PCR judge as well the question of whether, in light of his claims that PCR counsel was ineffective, defendant should be permitted to supplement the record before the judge rules on the underlying issue of whether defendant should be permitted to withdraw his guilty plea.


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