On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-02-0421.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Waugh.
Defendant Nazar Burak appeals the order of the Law Division denying his petition for post-conviction relief (PCR). Although the State urges us to affirm the denial of the PCR petition, it acknowledges that the matter should be remanded to the trial court so that Burak can move to withdraw his guilty plea. The State concedes that Burak was improperly required to enter the plea as a condition for admission to the pretrial intervention program (PTI). Based upon our review of the record, we reverse the denial of PCR and remand for an evidentiary hearing on Burak's claim of ineffective assistance of counsel.
I. We discern the following facts and procedural history from the record on appeal.
Burak was indicted for possession of an imitation firearm for an unlawful purpose (count one), contrary to N.J.S.A. 2C:39-4(e), and terroristic threats (count two), contrary to N.J.S.A. 2C:12-3(a). The prosecutor offered a plea agreement that required Burak to plead guilty to both offenses, with a recommendation of PTI or a non-custodial sentence in the event he was found ineligible for PTI.
According to the plea form dated May 10, 2004, Burak actually pled guilty to terroristic threats only. The weapons charge was to be dismissed. It appears that Burak entered the plea on May 10, and was admitted to PTI the same day.*fn1
On August 23, 2004, Burak was charged with violating the conditions of PTI by failing to report on May 18, 2004, failing to make any payments on his fines and assessments, and being arrested on a new offense prior to the date of his plea. Although denominated a notice for hearing, the document in the record does not give a date for a hearing, nor does it reflect service on Burak or his attorney. When the case was called on September 17, 2004, neither Burak nor his attorney responded. The judge entered an order terminating PTI.
The sentencing took place on January 21, 2005. The following discussion took place at that time.
[DEFENSE COUNSEL]: Judge, I'm going to ask the court to go along with the plea agreement. I'll ask the court to note that the original offer was PTI. The PTI was terminated, and not because Mr. Burak entered into the PTI program and then was [in violation] or --THE COURT: Well, why was he --[DEFENSE COUNSEL]: -- that -- he --THE COURT: -- terminated? [DEFENSE COUNSEL]: For some reason, Judge, and I don't --THE COURT: You don't follow through? [DEFENSE COUNSEL]: He didn't go that very first day. And -- and it may have been a language barrier; it may partially be miscommunication with the attorney. I -- I would assume that it was not intentional. He has been in close contact with us when he -- THE COURT: In either event, he was terminated from PTI, and he's looking at a probationary sentence.
The judge informed Burak that he might be deported on the basis of the plea.*fn2 The judge sentenced Burak to probation for three years, which he successfully completed in February 2008.
Burak filed his petition for PCR on October 16, 2009. In the petition, Burak denied that he had done anything to warrant termination of PTI, that he had received no notice of the September 17, 2004 hearing, and that his then attorney neither notified him of the hearing nor appeared on his behalf. He also alleged that his prior counsel was ineffective because she ...