STATE OF NEW JERSEY v. WILLIAM J. KITSCH

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4544-07T44544-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM J. KITSCH,

Defendant-Appellant.

________________________________

 

Submitted: March 11, 2009 - Decided:

Before Judges C.L. Miniman and King.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 89-07-1943.

Yvonne Smith Segars, Public Defender, attor ney for appellant (Michael Confusione, Designated Counsel, of counsel and on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

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. Defen dant was indicted on July 26, 1989, and charged with one count of arson in connection with a fire on June 21, 1989, that dam aged 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 con viction be set aside. Defendant alleged ineffective assistance of counsel because counsel had not moved to dismiss the indict ment, 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 neighbor hood. Defendant knew that Starn had a marijuana-growing opera tion 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 mari juana-growing operation that law enforcement wanted him to help uncover. About twenty minutes after he started the fire, defen dant 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 activi ties 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 Detec tive Walton did not elaborate beyond that. The Petitioner asked if he needed to divulge his conviction to anyone, and Lt. Walton responded "No."

When sentence was imposed, the judge found aggravating fac tors 3 and 9 and mitigating factors 2, 4, 7, 8 and 9. He stated in the judgment of conviction that it "would appear that defen dant acted out of character, by taking the law into his own hands in a stupid way, but for a good motive. He also has a decent background and is a hard worker and has no prior criminal record." As a result, the judge found a probationary sentence appropriate.

In his verified petition, defendant asserted that the plea agreement did not contain the entirety of the agreements reached between defendant and the Prosecutor and that certain facts were withheld from the defense attorney and the court at the time of the plea and sentence. He also pointed out that information routinely recorded had not been entered into Promis/Gavel and that some of the information there had been altered as of Novem ber 14, 2003; that he was told by Mary Risley on February 24, 2004, that his case was not a "fingerprinted case" contrary to common practice; and that information routinely sent to the National Crime Information Center was not submitted. Defendant also related a conversation on November 14, 2003, with Dean Ruff from the Prosecutor's Office about whether the Prosecutor could "vacate or eradicate" a con viction. Ruff indicated that the process was "quite involved" and that it "appear[ed] that someone didn't finish the job." Defen dant also offered that Ruff denied making these statements on December 15, 2003. He asserted that it was his understanding that his conviction had been "vacated, set side, and/or erased as promised," and that he had no criminal record.

Defendant also submitted a certified statement from Wayne B. Seher, who averred that defendant told him back in 1989 that "someone else may be watching what was going on," and he was assured that his charges would be erased soon after his sentence was finished. Kathleen Wible, too, certified that back in 1995 defendant told her "that he cooperated with the police, thus his conviction would be as if it never happened, there would be no police record." Defendant's son, William J. Kitsch IV, also averred that in April 2001 his father told him "that his record, concerning his felony conviction, was erased from his record[;] it was lawful for him to have firearms."

Defendant himself further certified that he never saw the grand jury transcript until it was supplied to him by his PCR counsel, that had he seen it in 1989 he would have told his attorney that the testifying officer failed to advise the grand jury that defendant has working as an undercover informant, that he did not try to burn down the barn, that he had no intention of destroying it, and that he was only trying to bring to the marijuana-growing operation to the attention of the authorities. He also certified that he was not aware that his counsel could have filed a motion to dismiss the indictment and that he did not believe that he had received a letter explaining his rejec tion from PTI, which he did not know he could appeal. He certi fied that he did not know that the evidence did not support second-degree aggravated arson and that, if he had gone to trial, the same sentencing considerations would have existed had he been convicted of third-degree arson. He was not aware that he might have been convicted only of criminal mischief and did not pay particular attention to his representation because he knew that he had a deal with the Prosecutor that his conviction would be erased after he finished probation. He did not reveal this deal because he thought it was part of the undercover operation. Defendant also submitted an expert report from Bon nie Doebley, retired Senior Probation Officer, respecting his eligibility for PTI.

In denying PCR on January 11, 2008, the judge found that counsel was not ineffective for failing to appeal the denial of PTI because defendant was charged with a second-degree offense and the likelihood of a court compelling admission to PTI was minimal. With respect to a motion to dismiss the indictment, the judge found that the evidence of defendant's motive did not directly negate guilt nor did it clearly exculpate defendant and, thus, the Prosecutor was not required to present this evi dence to the grand jury. As a consequence, he concluded that counsel was not ineffective in failing to file a motion to dis miss the indictment, which may only be dismissed where evidence is "clearly lacking to support the charge," quoting State v. Graham, 284 N.J. Super. 413, 417 (App. Div. 1995) (internal quotations omitted), certif. denied, 144 N.J. 378 (1996).

The judge considered whether counsel's performance was ineffective because he failed to move for a withdrawal of defen dant's guilty plea. While observing that motions to withdraw pleas prior to sentencing are liberally granted, a defendant still has the burden "'to present some plausible basis for his request, and his good faith in asserting a defense on the mer its, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion,'" quoting State v. Smullen, 118 N.J. 408, 416 (1990) (internal quotations and citation omitted). The judge concluded that defendant had not met this burden by arguing that he should not have been sentenced to a term of incarceration because there was no finding that imprisonment was necessary for the protection of the public as a first-offender. Thus, the judge determined that defendant's claims of ineffec tive assistance of counsel all lacked merit and could not have rendered his plea involuntary.

The judge rejected defendant's claim that his guilty plea was based on misrepresentations made by the Prosecutor's Office about the consequences of pleading guilty and the Prosecutor's desire not to have made public the pressure they had placed on him to secure a "bust." He noted that these claims were in direct contravention of defendant's testimony at the plea hear ing, which established that his plea was knowing and voluntary, and that defendant had no witnesses to corroborate these claims.

The judge finally determined that the five-year time bar of Rule 3:22-12(a) applied and that the bar should not be relaxed because defendant had failed to establish any ground for relief from the bar. Although the judge determined that the completion of defendant's probation did not render his PCR petition moot, he concluded that defendant had failed to make out a prima facie case of entitlement to any relief. This appeal followed.

Defendant raises the following issues on appeal:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

1. DEFENDANT'S PETITION IS NOT BARRED.

2. DEFENDANT ESTABLISHED AT LEAST A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF PLEA COUNSEL THAT ENTITLED HIM TO AN EVIDENTIARY HEARING ON HIS CLAIM.

3. DEFENDANT'S GUILTY PLEA WAS NOT KNOW ING, VOLUNTARY, AND INTELLIGENT IN LIGHT OF THE PROSECUTION'S FAILURE TO ADVISE OF DEFENDANT'S UNDERCOVER WORK THAT HAD GIVEN RISE TO THE OFFENSE OR THE UNFULFILLED PROM ISE THE PROSECUTOR HAD MADE TO "SET ASIDE" DEFENDANT'S CONVICTION.

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, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. (cit ing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992)), and accord defer ence to credibility determinations, ibid. (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 552 U.S. 1119, 118 S. Ct. 1059, 140 L. Ed. 2d 121 (1998)). However, 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. Ibid. (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 there was no evidentiary hearing and no credibility determinations were made.

Preliminarily, we agree that defendant's PCR application was not time barred. He had every reason to believe that there was no record of his conviction until his arrest on federal weapons charges in 2003. He promptly sought PCR thereafter. Any delay was excusable. State v. DiFrisco, 187 N.J. 156, 166 (2006). Precluding review in these circumstances would work an injustice. State v. Mitchell, 126 N.J. 565, 580 (1992). We will, therefore, review the merits of defendant's petition.

In Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674, 692 (1984), the United States Supreme Court explained the constitutional guarantee of effective assistance of counsel for every criminal defendant embodied in the Sixth Amendment. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious pro fessional errors. Ibid. Second, defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting, Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Adequate assistance of counsel should be measured by a "reasonable competence" stan dard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).

We find no error in the PCR judge's conclusion that defen dant failed to prove the second prong of Strickland with respect to each of the alleged instances of ineffective assistance of counsel. None of the grounds asserted would likely have made a difference in the outcome without a full disclosure to counsel and the court of the circumstances of the undercover operation and the agreement of the Narcotics Task Force and the Prosecutor that there would be no record of his conviction. We next consider that agreement and its effect on the plea.

In opposition to defendant's PCR petition, the Atlantic County Prosecutor relied upon a June 23, 1989, tape-recorded interview of defendant conducted by Investigator Dennis McKelvey and Senior Investigator Ed Hackett; the report of the Sheriff's Department respecting the fire investigation; Hackett's June 21, 1989, investigation report; a newspaper article dated June 22, 1989; McKelvey's June 21, 1989, investigation report; Hackett's June 22, 1989, supplementary investigation report; Investigator George Rochelle's June 23, 1989, supplemental investigation report; McKelvey's June 26, 1989, investigation report; Hack ett's June 21, 1989 initial fire investigation report; and Hack ett's June 27, 1989, investigator's report. The Prosecutor did not submit any reports from "Billy Cross" or Lt. Walton nor did he submit any certifications from either of them or from Officer Kevin Sealman, even though defendant asserted that they still worked at the Prosecutor's Office and were aware of the promise that induced his plea. Rather, the Prosecutor merely denied the allegations of coercion and an undisclosed deal with defendant in its brief without any evidential support. The Prosecutor also did not proffer any evidence that would explain why there was no record of defendant's conviction anywhere but in the Atlantic County Courthouse.

In his taped statement, defendant told the investigating officers that he set the fire because he wanted Starn to get "busted" for the marijuana-growing system upstairs in the barn and because of Starn's conduct with teenage girls in the neighborhood. There was no discussion on this tape about defen dant's undercover work for the Narcotics Task Force. Nor was there any such discussion in any of the investigative reports.

In light of this state of the evidence, defendant's veri fied petition stood unrebutted with respect to the issue of coercion by the Narcotics Task Force and the side deal with it by which defendant was guaranteed that there would be no record of his conviction if he pled guilty to the reduced charge. His explanation that he did not disclose this information to the court or his counsel because he understood it to be part of the undercover operation is plausible at first blush. Further, he acted consistently with this understanding of the real deal he had struck as part of his undercover work in his communications with others over the years after his conviction and his belief that it was lawful for him to have firearms. Because a valid plea cannot be induced by any promises not disclosed on the record, Smullen, supra, 118 N.J. at 417-18, the judge must conduct an evidentiary hearing to determine the facts and decide the issue of whether defendant's plea was truly voluntary, State v. Simon, 161 N.J. 416, 443-44 (1999).

While the representations defendant made at the plea hear ing constitute a "formidable barrier" for defendant to overcome, Blackledge v. Allison, 431 U.S. 63, 74, 87 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977), sufficient evidence was advanced here to warrant a hearing. Only then will the judge be in a position to determine if the defendant was coerced into pleading guilty or relied on a promise that was not disclosed at the time of the plea, whether defendant's "'reasonable expectations,' grounded in the terms of the plea agreement, must be fulfilled," State v. Howard, 110 N.J. 113, 122 (1988) (citations omitted), and what the rem edy should be. We leave that determination in the first instance to the PCR judge, although obviously compulsory PTI may be appropriate if the judge finds that the Prosecutor struck the deal alleged.

 
Affirmed in part and reversed and remanded in part.

After PCR was denied, defendant informed us that he was acquitted on October 9, 2008, of all federal charges. He related in a supplemental brief that the Atlantic County Prosecutor's Strike Force was unable to produce any evidence of his conviction at the federal trial other than the judgment of conviction in the Atlantic County Courthouse. He also represented that there was no record of his conviction in Promis/Gavel, Newark, Trenton, "NICS," the New Jersey State Police, or the United States. He stated that there was not a shred of information or documents in the hands of the prosecutor and that as part of the deal he never reported to Probation "after showing up once within a week after my sentence was finished, as instructed." Defendant did not file a motion under Rule 2:5-5 to supplement the record and we may only consider evidence that was before the PCR judge. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007). Thus, we must disregard the events occurring after January 2, 2008. However, this information may be presented to the PCR judge on remand.

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A-4544-07T4

May 27, 2009