NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION
DOCKET NO. A-2347-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EMANUEL ROSS,

Defendant-Appellant.
________________________________

Submitted: December 13, 2010 – Decided: February 7, 2011

Before Judges A.A. Rodríguez and C.L.

Miniman.

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Indictment No.
01-06-0734.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Gilbert G. Miller,
Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County

Prosecutor, attorney for respondent (Dorothy
Hersh, Assistant Prosecutor, of counsel and
on the brief).

PER CURIAM

Defendant Emanuel Ross appeals from the denial of his

application for post-conviction relief (PCR). Because defendant

was entitled to an evidentiary hearing on his application, we

reverse and remand for such a hearing.

 On July 9, 2003, defendant pled guilty to one count of

first-degree kidnapping, contrary to N.J.S.A. 2C:13-1b, in

exchange for which the State agreed to dismiss three assault

charges and three weapons charges and recommend a sentence of

fifteen years subject to the parole disqualifier of the No Early

Release Act (NERA), N.J.S.A. 2C:43-7.2, and five subsequent

years of parole supervision. Defendant was to receive jail

credit for time served from April 17, 2001, to the time of

sentencing.

At his plea allocution, defendant testified that he hit the

victim with a gun several times on January 27, 2001. The

codefendant then tied up the victim and gave the victim a cell

phone to call a few people to ask them to bring money to pay

defendant the money the victim owed him. None of the people the

victim called ever arrived, and after three or four hours,

defendant and his codefendant released the victim. During the

course of the plea allocution, the judge asked defendant, "Are

you satisfied with the advi[c]e you received from [defense

counsel]?" Defendant answered, "Yes." The judge accepted the

guilty plea and scheduled sentencing for the future.

At the time of his sentencing on November 21, 2003,

defendant stated that he had been offered a deal of nine years.

The nine-year agreement, . . . my family is

not here to validate this, but at one time,

2 A-2347-09T4
 I sent my family to [defense counsel's]
office and asked her to see if she could get
me seven. If not seven, I'll take nine.
The response was, we don't know who's
testifying right now. It's still early. We
can always get the nine back, but it's
scheduled for trial. That --in three years,
. . . the deal never changed. It was always
nine. Then the day that I find out that my
codefendant is testifying, . . . I'm under
the assumption that I have to live with the
nine.

After some discussion about the appearance of his family

members at sentencing, defendant continued:

[F]rom the first prosecutor I had, he told

me if I copped out, the deal would be nine
years, no more than ten years. That's what
Jose [Ortega] said, the first prosecutor.
He never changed the deal in three years
that this case has been going on for three
years. My lawyer told me that we can always
get the nine back.

Defendant's counsel explained that the nine-year term was

to be consecutive to the five-year sentence defendant was

already serving, but the fifteen-year term was to run

concurrently. Then the prosecutor stated that Mr. Ortega was no

longer in the prosecutor's office, and the file did not indicate

that any consecutive plea offer was ever extended.

Defendant then remarked that his "whole intention was not

to go to trial when everybody who knew anything about the case

knew that I was guilty. My whole thing was to get the best deal

that I could get. And at the last minute he turned it into a

3 A-2347-09T4
15." He pointed out that even if he had the nine years

consecutively, his actual time would be less than fifteen years

concurrently because of the amount of time he had served on the

prior sentence. Counsel reminded the court that defendant was

entitled to credit for time served from April 17, 2001, to the

date of sentencing. The judge then imposed sentence in

accordance with the plea agreement. Defense counsel calculated

the jail credits as at least 826 days. In the end, the judge

calculated 983 days as the appropriate jail credit.

When the judge entered the judgment of conviction on

January 15, 2004, he gave defendant credit for only ten days of

time spent in custody from February 6 to 15, 2001, and gave him

890 days of gap-time credit from June 15, 2001, to November 21,

2003. This was apparently an amended judgment of conviction.1

Defendant appealed his sentence, and the appeal came before

us for oral argument on August 23, 2006. By reclassifying jail

credit as gap time, the judgment did not take any time off the

period of parole disqualification. Counsel suggested remanding

the matter for reduction in the overall term to compensate for

the loss of reduction in the parole disqualification. Defense

counsel also pointed out that no hearing had been conducted by

1
The judgment of conviction entered immediately after sentencing
is not in defendant's appendix.

4 A-2347-09T4
the judge when he amended the judgment of conviction at the

request of the Department of Corrections, as required by Glover

v. New Jersey State Parole Board, 271 N.J. Super. 420, 424 (App.

Div. 1994).2 The State agreed that the matter should be remanded

because the plea agreement clearly stated that defendant was to

get jail credit from April 17, 2001. We entered an order on

August 31, 2006, affirming the sentence but remanding the matter

for the limited purpose of determining why defendant did not

receive the jail credits specified in the plea agreement.

After our remand, the trial judge entered an amended

judgment of conviction on February 2, 2007, in which he gave

defendant credit for time spent in custody totaling 958 days

from February 6 to 15, 2001, and April 17, 2001, to November 20,

2003. There was no gap-time credit in the amended judgment of

conviction.

Defendant filed his PCR application on or about December 6,

2007. He alleged ineffective assistance of counsel, claiming

that his case warranted a presumption of prejudice because of

2
In Glover, supra, 271 N.J. Super. at 424, the court found "that
a fair accommodation of all legitimate interests, consistent
with due process and applicable standing principles, requires
the making of a formal motion to the trial judge for
resentencing based on an asserted illegality in the sentence
imposed by the judgment of conviction." Additionally, "the
motion should properly be made by one of the parties to the
criminal action."

5 A-2347-09T4
"the egregious shortcoming in professional performance of

counsel." Further, "[d]efendant's attorney performed below

[the] level of reasonable competence, and as a result, counsel's

unprofessional errors produced results that negatively

[a]ffected [the] end result." Counsel was assigned by order

dated April 9, 2008, and thereafter assigned counsel amended

defendant's verified petition for PCR. Prior to the amended

petition, defendant's sister and mother prepared letters dated

June 18, 2008, which they subsequently executed in front of

notaries public.

Defendant's sister related a meeting that took place at

defense counsel's office that was attended by the sister, the

mother, and defendant's girlfriend. They informed defense

counsel that defendant wished to plead guilty to kidnapping and

accept the prosecutor's offer of a nine-year term consecutive to

the sentence he was already serving. They advised counsel that

defendant wanted to accept the deal because he was afraid the

plea offer could increase if he did not accept it in a timely

fashion.

Defendant's sister further related that defense counsel

implied that defendant should wait a little longer because the

prosecutor was having trouble with the witnesses, she might get

a better deal, and defendant should not worry about the original

6 A-2347-09T4
plea offer increasing. Defense counsel assured the individuals

present that the plea offer would be on the table until the

beginning of trial, and defendant could accept the offer at that

time, if he wished to do so.

After the meeting, defendant's sister explained defense

counsel's strategy to defendant, and he decided to wait until

the beginning of trial to weigh his options. Defendant's sister

then related that defense counsel was incorrect because, when

defendant sought to plead guilty at the time of trial, the

prosecutor informed him that the original plea offer was no

longer available and that the only plea available at that time

was fifteen years. She asserted that her brother accepted the

plea offer, but "he was very disappointed in his lawyer's bad

judgment." She expressed her own opinion that counsel was

ineffective.

In the letter from defendant's mother, she asserted that

"[m]any times my son would call me and have me relay messages to

his lawyer because he could never get in contact with her.

[Defense counsel] would not accept his phone calls nor visit

with him to discuss strategy." She also wrote that, although

defendant asked for copies of the discovery, his lawyer never

provided discovery to him.

7 A-2347-09T4
 Defendant's mother then discussed a status conference she

attended in the summer of 2002. At that status conference,

Ortega offered her son a plea agreement of nine years with

eighty-five percent to be served consecutively to a five-year

sentence with a three-year mandatory minimum that defendant was

already serving at the time. Defendant told Ortega that he

needed time to think about it. It was after that conference

that she, her daughter, and defendant's girlfriend went to visit

defendant to discuss the plea offer and to determine whether it

was in his best interest to accept the plea deal. After that

discussion, defendant instructed his mother to inform his lawyer

that he wished to accept the deal.

Not much later, she, her daughter, and defendant's

girlfriend went to visit with defense counsel. She described

that conference substantially as her daughter had described it.

Defendant's trial was set to begin about ten months later.

Defendant expressed that he wanted to accept the nine-year plea

deal, but the prosecutor informed him that it was no longer

available and had been increased to fifteen years. Defendant's

mother asserted that defendant felt that counsel's mistaken

advice had resulted in him receiving a longer sentence then he

would have received had he not listened to her. She concluded:

I attended [defendant's] sentencing and

witnessed my son explain how dissatisfied he

8 A-2347-09T4
 was with his lawyer[] to the sentencing
judge . . . . [Defense counsel] never
explained why she gave [defendant] such bad
advice; she only said that the new sentence
was a little longer than the original one.

In defendant's amended September 5, 2008, verified petition

for PCR, he explained that the first plea offer was for a total

of nine years and that he would be ineligible for parole for

seven years and six months. He expressed that the sentence was

to be served consecutively to the sentence he was then serving

of five years with a three year mandatory period of parole

ineligibility. As a result, his aggregate sentence would have

been fourteen years with a ten-year, six-month mandatory period

of parole ineligibility. He averred that his counsel assured

him that the State's plea offer would not increase and that it

would remain open through trial. As a result, he proceeded to

trial.

In his certification, he made reference to the letters

provided by his sister and mother and averred that his defense

attorney "failed to provide [defendant] with relevant discovery,

in order for him to make a fully informed decision as to whether

a guilty plea would be in his best interests. Counsel also did

not accept or return [defendant's] phone calls, nor visit

[defendant] while incarcerated to discuss his concerns and trial

strategy."

9 A-2347-09T4
 Defendant further related that during jury selection, he

decided to take the State's offer of a nine-year term, but the

State rescinded the original offer and was only willing to agree

to a fifteen-year term. Defendant reluctantly agreed to that

plea bargain. He averred that the consequence of his counsel's

incorrect advice is that his minimum term in prison was

increased by two years and three months, whereas his maximum

term increased only by one year. Defendant alleged that he was

denied the effective assistance of trial counsel as described

above and sought to have the guilty plea and sentence entered in

the matter set aside and the case set down for an evidentiary

hearing on the issues raised.

The matter came before the PCR judge on June 5, 2009. The

judge denied the application primarily because he had an order

in the court file dated December 10, 2001, placing the matter on

the trial calendar. That order stated that defendant had not

accepted an offer by the State to recommend a fifteen-year term

subject to the eighty-five percent parole disqualifier of NERA

in exchange for a guilty plea to kidnapping and third-degree

possession of weapons for an unlawful purpose. That order

indicated that defendant was present in court on that date.3

3
The order of December 10, 2001, is not in the record on appeal,
nor is there a transcript of the proceedings from that day.

10 A-2347-09T4
 The judge found that the evidence before him was no more

than "a mere allegation of ineffective assistance of counsel."

He determined that the plea offer changed from nine consecutive

years to fifteen concurrent years on December 10, 2001.4 The

judge further noted that defendant was not claiming he was not

guilty of the crime, but was only saying that he wanted the

initial plea offer that was made early in the case.5 The PCR

judge also found that in order to prove the first prong of

Strickland,6 defendant must show that there is a reasonable

probability that "but for counsel's errors . . . he would not

have pled guilty, and would have insisted on going to trial."

The judge observed that

whether or not [defendant] claims his

counsel told him she thought she could get
something lower than [fifteen], I have no
evidence of that. And I have not even
enough evidence to . . . warrant any
evidentiary hearing. Because I would have
that in every case where somebody had a
change of heart and where they said, my
attorney told me to ignore what the judge
says; ignore the order; ignore what's on the

4
Defendant did not plead guilty until 2003, and the December 10,
2001, order was entered only six months after the indictment.
5
Defendant and his family all certified that the plea offer of
nine consecutive years was on the table in the summer of 2002,
which was six months after the December 10, 2001, order.
Furthermore, defendant certified that he understood the offer of
nine consecutive years was still on the table when he went to
trial in 2003 and decided to plead guilty.
6
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).

11 A-2347-09T4
 record; and I can get you that deal back at
the beginning of the case when the
prosecutor didn't put any work into the
case.

Thus, the judge concluded that defendant had not met the

threshold showing required under Strickland and denied the

application.

We review the legal conclusions of a PCR judge de novo.

State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-

Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v.

Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S.

1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope

of review applies to mixed questions of law and fact. Id. at

420 (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir.

1999)). Where no evidentiary hearing has been held, we "may

exercise de novo review over the factual inferences drawn from

the documentary record by the [PCR judge]." Id. at 421 (citing

Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert.

denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)).

Thus, it is within our authority "to conduct a de novo review of

both the factual findings and legal conclusions of the PCR

court." Ibid. Where no credibility determinations have been

made, "we invoke our original jurisdiction in the review of

th[e] matter." Ibid. Such a review is appropriate here as

12 A-2347-09T4
there was no evidentiary hearing and no credibility

determinations were made.

The right to counsel is guaranteed by both the Federal and

State Constitutions. See U.S. Const. amends. VI, XIV; N.J.

Const. art. I, § 10. In New Jersey, this guarantee requires not

just the presence of an attorney, but the effective assistance

of counsel. State v. Jack, 144 N.J. 240, 248 (1996). "[A]

criminal defendant is entitled to the assistance of reasonably

competent counsel, and . . . if counsel's performance has been

so deficient as to create a reasonable probability that these

deficiencies materially contributed to defendant's conviction,

the constitutional right will have been violated." State v.

Fritz, 105 N.J. 42, 58 (1987).

To establish a prima facie claim of ineffective assistance

of counsel, the defendant must meet the standard promulgated by

the United States Supreme Court in Strickland, supra, 466 U.S.

at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and adopted in

New Jersey under Fritz, supra, 105 N.J. at 57-58. Whether the

defendant's constitutional right to counsel has been abridged is

"measured by applying a 'simple, two-part test.'" State v.

O'Neal, 190 N.J. 601, 629 (2007) (quoting Fritz, supra, 105 N.J.

at 52).

First, the defendant must show that

counsel's performance was deficient. This

13 A-2347-09T4
 requires showing that counsel made errors so
serious that counsel was not functioning as
the "counsel" guaranteed the defendant by
the Sixth Amendment. Second, the defendant
must show that the deficient performance
prejudiced the defense. This requires
showing that counsel's errors were so
serious as to deprive the defendant of a
fair trial, a trial whose result is
reliable.

[Strickland, supra, 466 U.S. at 687, 104 S.

Ct. at 2064, 80 L. Ed. 2d at 693.]

To meet the first prong of the Strickland/Fritz test, a

convicted defendant must identify acts or omissions by the trial

counsel that were not "the result of reasonable professional

judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at

2066, 80 L. Ed. 2d at 695; see also State v. Petrozelli, 351

N.J. Super. 14, 22 (App. Div. 2002). The defendant must show

that "counsel's representation fell below an objective standard

of reasonableness." Strickland, supra, 466 U.S. at 688, 104 S.

Ct. at 2064, 80 L. Ed. 2d at 693. A court analyzing a

defendant's argument under this first prong "must give great

deference to counsel's performance and must strongly presume

that the attorney's conduct constituted reasonable professional

assistance." Petrozelli, supra, 351 N.J. Super. at 21-22

(citing Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065,

80 L. Ed. 2d at 694). The court should not review the

attorney's performance with the benefit of hindsight, but rather

14 A-2347-09T4
should "'evaluat[e] the conduct from counsel's perspective at

the time.'" Id. at 22 (quoting Strickland, supra, 466 U.S. at

689, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694). This prong

requires the court to determine whether counsel's acts or

omissions, in light of the existing circumstances, were squarely

outside the ambit of professionally competent assistance. Ibid.

Consequently, informed strategic choices "are virtually

unchallengeable." Strickland, supra, 466 U.S. at 690, 104 S.

Ct. at 2066, 80 L. Ed. 2d at 695. Even strategic choices made

after limited investigation are afforded great deference and are

assessed for reasonableness. Petrozelli, supra, 351 N.J. Super.

at 22.

If the court finds that counsel's errors were significant

enough to meet the first prong of Strickland/Fritz, the

defendant must then demonstrate that the error was "prejudicial

to the defense." Strickland, supra, 466 U.S. at 692, 104 S. Ct.

at 2067, 80 L. Ed. 2d at 696. "The defendant must show that

there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome." Id. at 694,

104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The burden of proof

rests "squarely on the defendant." State v. Paige, 256 N.J.

15 A-2347-09T4
Super. 362, 377 (App. Div.), certif. denied, 130 N.J. 17 (1992).

The reviewing court "'should presume . . . that the judge or

jury acted according to the law.'" Petrozelli, supra, 351 N.J.

Super. at 22 (quoting Strickland, supra, 466 U.S. at 694, 104 S.

Ct. at 2068, 80 L. Ed. 2d at 698). Thus, relief should only be

granted where a defendant demonstrates that the counsel's error

is "so serious as to undermine the court's confidence in the

jury's verdict or result reached." State v. Chew, 179 N.J. 186,

204 (2004) (citing Strickland, supra, 466 U.S. at 694, 104 S.

Ct. at 2068, 80 L. Ed. 2d at 698).

The Strickland test does apply to challenges to guilty

pleas based on the alleged ineffective assistance of counsel.

Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L.

Ed. 2d 203, 210 (1985) ("We hold, therefore, that the two-part

Strickland v. Washington test applies to challenges to guilty

pleas based on ineffective assistance of counsel."). In such a

case, the first prong of Strickland requires an evaluation of

whether the attorney failed to provide advice that "'was within

the range of competence demanded of attorneys in criminal

cases.'" Id. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208

(citation omitted). The second prong examines whether there is

a "reasonable probability" that "counsel's constitutionally

ineffective performance affected the outcome of the plea

16 A-2347-09T4
process. In other words, . . . the defendant must show that

there is a reasonable probability that, but for counsel's

errors, he would not have pleaded guilty and would have insisted

on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d

at 210 (footnote omitted).

Here, assuming the truth of defendant's assertions and

those of his family, defense counsel was ineffective in failing

to visit defendant in prison to discuss strategy, declining to

accept his telephone calls, refusing his repeated requests for

discovery, and placing a communication barrier between counsel

and defendant, which precluded defendant from learning that the

State was about to withdraw its nine-year plea offer, that the

offer had been withdrawn, and that the withdrawal was

irrevocable. Certainly defendant suffered prejudice as he lost

the benefit of the nine-year consecutive term. Of course, we

cannot say as a matter of law that defense counsel was

ineffective or that defendant was prejudiced as a result. This

is so because the PCR judge failed to conduct an evidentiary

hearing in the face of undisputed evidence from defendant and

his family. Clearly, the order of December 10, 2001, did not

impeach the certification of defendant and the letters from his

family with respect to the offer that was on the table in the

summer of 2002.

17 A-2347-09T4
 The standard for an evidentiary hearing in PCR proceedings

is contained in State v. Preciose, 129 N.J. 451 (1992). A PCR

judge must view the facts of the case in a light most favorable

to defendant to determine if a prima facie claim has been

established. Id. at 462-63. Here the facts alleged by

defendant "lie outside the trial record and . . . the attorney's

testimony [was] required." Id. at 462.

We are cognizant of State v. Slater, 198 N.J. 145 (2009).

However, this PCR application is not a direct motion to withdraw

a guilty plea, but a claim that defendant was deprived of his

constitutional right to effective assistance of counsel. In

such a case, the PCR judge must determine whether defendant's

constitutional right was compromised and, if so, remedy the harm

by restoring defendant to the place he occupied before the

deprivation of his rights. This remedy is similar to an order

for a new trial when we determine based on the record on appeal

that trial counsel was ineffective. Defendant and his new

counsel may then seek to negotiate a new plea or proceed to

trial. Thus, an evidentiary hearing was required to resolve the

conflict between the December 10, 2001, order and defendant's

version of the facts.

Accordingly, the order denying PCR is reversed and

defendant's petition is remanded to the PCR judge for an

18 A-2347-09T4
evidentiary hearing so that the judge may hear testimony from

defendant and his family, as well as from defense counsel and

Prosecutor Ortega, and decide the facts. Only then will the PCR

judge be able to determine whether defendant has established by

a preponderance of the evidence that he is entitled to a remedy

for the alleged deprivation of his constitutional right to

effective assistance of counsel.

Reversed and remanded for proceedings consistent with this

opinion.

19 A-2347-09T4