STATE OF NEW JERSEY v. NAZAR BURAK

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5009-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NAZAR BURAK,

Defendant-Appellant.

_________________________________

Argued June 7, 2011 Decided June 28, 2011

Before Judges Graves and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-02-0421.

John R. Klotz argued the cause for appellant.

Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; David A. Malfitano, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

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.1

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.2 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 did not contest the termination of PTI prior to or at the sentencing hearing in January 2005.

The judge who had handled the plea and sentencing heard oral argument on the PCR petition. He subsequently denied relief in a written opinion and dismissed the petition in an order, both dated March 15, 2010. The judge determined that Burak could not satisfy the second prong of the Strickland3 test because he would not have prevailed had he opposed the termination of PTI.

Burak moved for reconsideration, arguing that the judge had referred to documents at the PCR hearing, including the so-called notice of hearing from 2004, that had not been made available to him prior to that time. He also asserted that the criminal matter relied upon for termination of PTI had been dismissed the day before he was sentenced. The judge denied the motion for essentially the same reasons he had dismissed the petition. This appeal followed.

II.

Burak raises the following issues on appeal:

I. THE DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND TO DUE PROCESS AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND BY ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY STATE CONSTITUTION DUE TO FORMER COUNSEL'S FAILURE TO OBJECT TO: 1) DEFENDANT'S TERMINATION FROM THE P.T.I. PROGRAM; 2) LACK OF NOTICE OF THE P.T.I. PROGRAM TERMINATION PROCEEDINGS; AND 3) LACK OF OPPORTUNITY TO BE HEARD AT THE P.T.I. TERMINATION PROCEEDINGS.

II. FORMER COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO DEFENDANT'S TERMINATION FROM THE PRE TRIAL INTERVENTION PROGRAM WITHOUT THE DUE PROCESS OF NOTICE AND OPPORTUNITY TO BE HEARD.

III. THE STATE IMPROPERLY REQUIRED DEFENDANT TO ENTER A GUILTY PLEA AS A CONDITION FOR ENTRY INTO THE PRE TRIAL INTERVENTION ("P.T.I.") PROGRAM.

As previously noted, the State concedes that Burak's admission into PTI should not have been conditioned on a guilty plea, State v. Randall, 414 N.J. Super. 414, 421 (App. Div.), certif. denied, 203 N.J. 437 (2010), and that he should be afforded an opportunity to move to withdraw his plea. Consequently, we address only the first two issues raised on appeal.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . .

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. To sustain that burden, specific facts which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.

Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).

In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

We have concluded that an evidentiary hearing is warranted in this case for the following reasons. There appears to be a factual issue as to whether Burak or his then attorney received notice of the September 17, 2004 hearing concerning termination of PTI. The order for hearing contained in the record, which does not actually set a date for the hearing, does not reflect that it was served on Burak or his attorney. There is no document in the record demonstrating that such notice was given. If Burak had no notice and opportunity to be heard on the issue of his termination from PTI, his attorney should have raised the issue at or before sentencing in January 2005. Consequently, we conclude that the first prong of Strickland has been satisfied.

Because we do not have a transcript of the plea hearing, we do not know what Burak was told at the time about reporting for PTI intake and making payments on his fines and penalties, nor do we know whether he had the benefit of an interpreter when such instructions were given, assuming he required one.4 It also appears that, by the time of the sentencing, the new charges relied on in connection with the termination of PTI had been dismissed. Absent a complete factual record, we cannot determine whether the PCR judge correctly determined that PTI would have been terminated had defense counsel actually raised the issue at sentencing, as we have concluded she should have.

At the remand hearing, Burak will also have the opportunity to make a motion to withdraw his guilty plea. In addition to the improper requirement of a guilty plea as a condition of PTI, there is a potential issue with respect to the deportation consequences of the plea. We also do not know what, or even whether, Burak was told about the deportation consequences of the plea at the time it was entered or whether the first oral notification took place at his sentencing. See State v. Telford, ___ N.J. Super. ___ (App. Div. 2011). In addition, the State will have an opportunity to assess its position on how to proceed in light of Burak's successful completion of his probationary sentence.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 The record does not include a transcript of the plea.

2 Because we do not have the transcript of the plea, we do not know whether he was orally informed about the deportation consequences of the plea when it was entered. The issue was referred to in the plea waiver. Deportation proceedings were commenced on March 16, 2011.

3 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).

4 There was an interpreter at the sentencing, but it appears that some or all of that proceeding may have been conducted without the interpreter, so we do not know the extent to which one was required.