STATE OF NEW JERSEY v. FRANCESCO GAETANO, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FRANCESCO GAETANO, JR.,

Defendant-Appellant.

________________________________

December 15, 2015

Before Judges Alvarez, Haas and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-09-0850.

Michelle J. Douglass argued the cause for appellant (My Rights Lawyers, attorneys; Ms. Douglass and Susan T. Kinniry, on the brief).

JosephH. Enos,Jr., Senior Assistant Prosecutor, argued the cause for respondent (SeanF. Dalton, GloucesterCounty Prosecutor, attorney; Mr. Enos,on the brief).

PER CURIAM

Defendant Francesco Gaetano, Jr. appeals from the May 6, 2014 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

The Franklin Township Police Department (Franklin Township) employed defendant as a police sergeant.1 Defendant's regular eight-hour shift was from 7:00 a.m. to 3:00 p.m. Defendant also occasionally "worked the Overtime Traffic Detail" at the local high school from 7:00 a.m. to 8:00 a.m. On the days defendant performed the traffic detail, he was required to deduct one hour from his regular 7:00 a.m. to 3:00 p.m. shift so that he was not paid twice for the same hour.

In February 2011, the Gloucester County Prosecutor's Office (the State) began an investigation into allegations of official misconduct and theft of overtime pay committed by defendant. After the investigation commenced, defendant's union arranged for him to be represented by private counsel. Upon advice of that attorney, defendant declined to answer any questions posed by investigators or give a statement concerning the allegations. During the course of the investigation, the State identified 135 occasions between November 2008 and December 2010 on which defendant submitted false payroll reports related to overtime pay.

At the conclusion of the investigation in mid-August 2011, the State gave defendant's attorney a copy of its investigation report and related discovery. The attorney shared these documents with defendant. The State advised defendant's attorney that it planned to immediately go before a grand jury and seek to have defendant charged with second-degree official misconduct, N.J.S.A. 2C:30-2; third-degree theft, N.J.S.A. 2C:20-3; and fourth-degree falsifying or tampering with records, N.J.S.A. 2C:21-4(a). If defendant was convicted of second-degree official misconduct, the judge would be required to sentence him to a mandatory minimum five-year term of imprisonment, N.J.S.A. 2C:43-6.5(a) and (b)(17), and defendant would automatically forfeit his pension benefits. N.J.S.A. 43:1-3.1(a) and (b)(17). However, if defendant was convicted of fourth-degree falsifying or tampering with records, he would not face a mandatory minimum prison term or the automatic forfeiture of his pension.

The State told defendant's attorney that, once defendant was indicted for official misconduct, it would have "no flexibility" to entertain a plea agreement to a lesser charge. Defendant's attorney conveyed the State's position to defendant and advised him of the risk of conviction if the matter proceeded to trial and the severe consequences that would follow.

Defendant's attorney then negotiated a plea agreement with the State. Under the terms of the agreement, defendant would plead guilty to an accusation charging him with one count of fourth-degree falsifying or tampering with records, N.J.S.A. 2C:21-4. In return, the State agreed to recommend a probationary term "in the [c]ourt's discretion." Defendant would be required to pay $11,202.68 in restitution to Franklin Township, along with mandatory fines and penalties. Although defendant would have to forfeit his job as a police officer and agree to a lifetime ban on public employment, the State agreed to take no position regarding the forfeiture of defendant's pension.

Defendant agreed to accept the plea offer. He retired as a police officer on August 31, 2011. On September 2, 2011, defendant appeared before Judge Walter L. Marshall and pled guilty to fourth-degree falsifying or tampering with records. Defendant gave a factual basis for the plea in which he admitted that, in December 2010, he knowingly submitted false time records to Franklin Township, which resulted in the Township making payments to him which he "had not actually earned[.]"

Following the plea hearing, defendant's attorney sent him a letter reviewing the terms of the plea, including the provisions the attorney negotiated that ensured that defendant would not be sentenced to a term of incarceration or face the automatic forfeiture of his pension. The attorney also advised defendant that, despite the fact that the forfeiture of his pension was not mandated, it was still a possibility and, therefore, the attorney could not "guarantee" that the plea would have "no impact upon [defendant's] pension."

On October 12, 2011, Judge Marshall sentenced defendant in accordance with his negotiated plea to one year of probation and ordered him to pay $11,202.68 in restitution, plus the mandatory fines and penalties. The judge also barred defendant from serving as a police officer or in public employment. Defendant did not file a direct appeal challenging his conviction or sentence.

On March 14, 2012, the Board of Trustees of the Police and Firemen's Retirement System (the Board) determined that, because of his conviction, defendant should forfeit "part of [his] service and salary from the calculation of any retirement benefit." Specifically, the Board found that defendant's period of service from December 1, 2009 through August 31, 2011 was "dishonorable service" that could not be counted in the calculation of his benefits. As a result of this forfeiture, defendant's "pension time [fell] below 20 years and he no longer qualifie[d] for Service retirement benefits."

On May 7, 2013, defendant filed his PCR petition. He alleged that his attorney was ineffective because the attorney failed to adequately investigate defendant's case before defendant pled guilty. Defendant stated that he had filed an administrative appeal of the Board's decision to forfeit a portion of his service and, during that proceeding, had retained a certified public accountant (CPA) to review the State's investigation report and Franklin Township's timesheets and payroll records. The CPA prepared a report indicating that the Township's timekeeping system lacked adequate internal controls and that, based on the Township's "archaic manual system" by which police officers recorded their hours, "it would be impossible to determine that [defendant] intentionally submitted false and misleading time records."

Defendant alleged that his attorney should have retained a CPA to perform a similar analysis during the approximately two-week period the State gave defendant to consider its plea offer. Because the attorney did not do so, defendant argued that the attorney was ineffective.

Following oral argument, Judge Marshall issued a thorough written opinion concluding that defendant had not presented a prima facie case of ineffective assistance of counsel, so as to entitle him to an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-63 (1992). The judge found that the State's investigation report candidly noted that the Township's timekeeping system was based on the police officers adhering to "an 'Honor System[,]'" as opposed to a strict set of internal controls. Thus, the information provided by the CPA defendant retained in his pension appeal was already available to defendant and his attorney when the attorney was negotiating the plea agreement.

Addressing defendant's claim that the records did not demonstrate that he "intentionally submitted false and misleading time records[,]" the judge noted that defendant submitted 135 "false reports related to overtime pay . . . [and] submitted these false reports consistently, without a single example of an 'error' being made to his detriment, all 135 false reports working out in his benefit." The judge also found that "[d]efendant submitted these false reports routinely, in a time period stretching from November 2008 through December 2010." Thus, there was ample information in the State's investigation report to support defendant's attorney's analysis of the risks defendant faced if he proceeded to trial on a second-degree charge that would require him to serve a mandatory minimum five-year prison term and automatically forfeit his pension.

Under these circumstances, the judge concluded that, while the CPA's "forensic audit would undoubtedly be helpful to [d]efendant in the course of a trial, it is not so definitive or compelling that one would think it automatically would overcome the testimony of [defendant's supervisors] of the apparent pattern of self-serving misconduct in the prosecutor's investigation report." Therefore, the judge rejected defendant's claim that he "would have insisted on going to trial if his original counsel had performed an investigation similar to that of his" CPA in the pension appeal.

The judge further found that defendant's attorney's performance "was well within the range of competence demanded of attorneys in criminal cases." The judge stated

It is also important to consider that by negotiating a plea agreement early in the process of a criminal prosecution, defense counsel can often arrange a more favorable sentence for their clients than they would be able to at a later time. In such cases, the decision to forego an extensive independent investigation before attempting to negotiate can be considered a viable and effective strategy. It would not be prudent to require that every attorney conduct the level of independent investigation that would be fitting for a full trial during the earliest stages of a criminal prosecution. Such a requirement would deprive defendants of the advantageous plea bargains which are often negotiated prior to an official indictment.

The judge noted that the State had advised defendant's attorney that, once an indictment for second-degree official misconduct was issued, it would no longer be interested in resolving the case by way of a negotiated plea. As the judge explained, this was significant because defendant's attorney

was able to negotiate a deal which included no jail time and no automatic forfeiture of pension. The fact that [defendant] was later denied his pension by a separate agency cannot be considered in determining the benefits of [his] plea bargain. Considering the serious nature of the potential charges against [defendant] (and the mandatory minimum five years in prison he would have faced if convicted along with automatic pension forfeiture), the weight of the evidence against him, and the comparatively lesser crime and sentence he ultimately pled to, it seems clear to the [c]ourt that counsel did him a great service by choosing to focus his energy in the early stages of the prosecution on negotiation rather than launching an investigation.

Therefore, the judge denied defendant's petition for PCR. This appeal followed.

On appeal, defendant raises the following contentions

A. Standard of Review for Ineffective Assistance of Counsel.

B. The Trial Court Erred in Denying [Defendant's] Petition for Post- Conviction Relief Based on Ineffective Assistance of Counsel Because [Defendant] Established Significant Issues of Material Fact That Trial Counsel Did Not Interview Any Witnesses Despite Pleas From [Defendant] To Do So or Analyze the Documentary Evidence Which Formed the Basis of the Conviction for Falsifying Documents.

C. The Trial Court Erred in Denying [Defendant's] Post-Conviction Relief Petition Because It Relied On and Accepted as True the State's Evidence Where Significant Issues of Fact Showed the State's Evidence Was Flawed and Trial Counsel Failed to Challenge the Evidence and/or Conduct an Independent Review of the Witnesses or Documents at [Defendant's] Request.

D. The Trial Court Erred in Denying [Defendant's] Petition for Post- Conviction Relief Because it Did Not Consider the Failings of the Prosecution's Report.

E. The Trial Court Erred When It Ignored [Defendant's] Position That He Had Ineffective Assistance of Counsel Because Counsel Refused to Pursue Any Defenses Available to [Defendant], Including a Motion to Exclude the Wholly Inadmissible and Unreliable Time Records Upon Which the State Based Its Case.

F. The Trial Court Erred in Denying [Defendant's] Petition for Post- Conviction Relief When It Ignored the Operative Facts and Law Which Showed that [Defendant] Was Prejudiced by the Ineffective Assistance of Counsel.

G. The Trial Court Erred in Denying [Defendant's] Petition Without Holding an Evidentiary Hearing.

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Marshall in his well-reasoned May 6, 2014 written opinion. We add the following comments.

To demonstrate ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating that "counsel's performance was deficient"; that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord State v. Fritz, 105 N.J. 42, 58 (1987).

To set aside a guilty plea based on ineffective assistance of counsel, a defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases[.]'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollet v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, the defendant must also establish "'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.'" Ibid. at 457 (alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)). As the Supreme Court observed in Strickland,

[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from the counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

[Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).]

As Judge Marshall found, defendant did not overcome the presumption that his attorney's performance fell "within the wide range of reasonable professional assistance[.]" Ibid. The State's investigation revealed that defendant submitted 135 false reports and, as a result, was paid for hours he did not work. Although defendant disputed the number of false reports involved, he conceded in his petition for PCR "that, in error, he did not always properly account for" his time and that he made "mistakes." However, all of these alleged "errors" went in his favor, evidencing a pattern of defendant submitting false reports and receiving pay which he did not earn.

Faced with this evidence, defendant's attorney appropriately focused his attention on attempting to negotiate a plea which would ensure that defendant was not incarcerated and that his pension was not automatically forfeited. Defendant's attorney accomplished both of these goals. Thus, we discern no basis for disturbing Judge Marshall's conclusion that defendant failed to meet the first Strickland prong.

Defendant's claim that he would have insisted on going to trial had his attorney retained a CPA to prepare a report discussing deficiencies in the internal controls in the Township's timekeeping system also lacks merit. The State's investigation report highlighted the problems caused by permitting police officers to use an "Honor System" to report their hours. Thus, had it been possible for defendant's attorney to engage a CPA to perform a forensic audit in the two weeks leading up to defendant's plea, that audit would only have confirmed what the State already acknowledged. As defendant stated in his petition for PCR, he was "'scared to death'" that the State planned to pursue charges that would require that he be incarcerated if convicted, with a mandatory loss of his pension benefits. Therefore, the record amply supports Judge Marshall's finding that defendant failed to meet the second Strickland prong because he would have accepted the plea even if a forensic audit had been performed.

Finally, Judge Marshall correctly determined that an evidentiary hearing was not required. A defendant is not entitled to an evidentiary hearing on a PCR petition unless he or she presents legally competent evidence to support both prongs of the Strickland test. See State v. O'Donnell, 435 N.J. Super. 351, 370 (App. Div. 2014); see also Preciose, supra, 129 N.J. at 463. As discussed above, defendant failed to meet either prong of the test.

Affirmed.

1 The Department had employed defendant as a police officer for over twenty-one years prior to the events involved in this case.