STATE OF NEW JERSEY v. MAWAFAG ABEDALLAH

NOT FOR PUBLICATION WITHOUT THE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.

MAWAFAG ABEDALLAH, a/k/a

MIKE MURTANA,

Defendant-Appellant.

________________________________________________________________

October 28, 2013

Before Judges Fisher and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-04-0555.

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Mawafag Abedallah appeals from the January 12, 2012 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant, who pleaded guilty to a third-degree crime in exchange for the promise of a probationary term that he has now completed, argues that his PCR counsel was ineffective for failing to raise the issue that his initial defense counsel allowed him to plead guilty to a crime that he did not commit. We affirm.

Defendant pleaded guilty to third-degree insurance fraud. N.J.S.A. 2C:21-4.6. He then hired new counsel prior to sentencing and sought to withdraw the guilty plea, alleging that he did not fully understand the nature of the plea. He claimed that his first attorney had not fully investigated his defense and had pressured him into accepting the plea agreement. He alleged he was not guilty. The trial judge denied his application to withdraw his plea.

On direct appeal, we discussed and rejected defendant's argument that the judge abused her discretion by denying his application to withdraw his guilty plea prior to sentencing. State v. Abedallah, Docket No. A-1215-06 (App. Div. July 2, 2009) (slip op. at 2-9). We noted that defendant, who was forty-one and had a Masters degree, read and wrote English. Id. (slip op. at 3). At the plea hearing, he "stated he added some vehicles to his insurance policy without notifying the insurance company . . . ." Ibid. He reiterated his guilt in a signed statement to the Probation Department that was attached to the presentence report. Id. (slip op. at 4). He also received a favorable plea agreement.1

At his PCR argument on January 12, 2012, defense counsel argued that defendant should be released from probation because he had received a four-year probationary sentence well over six years before, on September 15, 2006, and remained on extended probation due only to his inability to complete restitution payments. See N.J.S.A. 2C:45-2a (a period of probation may not exceed five years). The judge terminated probation that day, referring the "balance of the restitution . . . to the fines and restitution department[.]" She indicated that a civil judgment could be entered if necessary.

On appeal, defendant raises the following issue:

POINT I: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF PCR COUNSEL WHERE COUNSEL FAILED TO ARGUE THE BASIS FOR HIS PCR CLAIM []THAT HIS PLEA WAS INVALID DUE TO INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A deprivation of the constitutional right to effective assistance occurs when: (1) an attorney provides inadequate representation and (2) that deficient performance causes the defendant prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J.42, 57-58 (1987).

In cases brought by a defendant who has entered a guilty plea, the first prong is met where the defendant can show that counsel's representation fell short of the guarantees established by the Sixth Amendment. State v. Parker, 212 N.J.269, 279 (2012) (citing Strickland, supra, 466 U.S.at 687, 104 S. Ct. at 2064, 80 L. Ed.2d at 693). The second component is shown by establishing a reasonable probability that the defendant would not have pled guilty, but for his counsel's errors. Id.at 279-80 (citations omitted).

PCR counsel must also represent defendants effectively in accord with Rule3:22-6 and State v. Rue, 175 N.J.1, 18-19 (2002).

Defendant claims that in his initial PCR petition, filed without counsel, he raised the issue of ineffective assistance of plea counsel and that his PCR lawyer abandoned it. However, counsel stated at the PCR argument,

Judge, just in terms of what we're going to be relying on, I just should point out that a brief was filed on October 12th of this year, some 36-page brief along with the attachments, and we're going to be relying on that brief. And in that regard, I'm going to keep my remarks somewhat short. If I don't mention something that is contained in the brief, I would ask you to not consider that a waiver in any way.

Defendant only provided two pages of that brief to us,2 and he did not provide the attachments to the brief that might well have included the alleged exculpatory documents presented to the trial court in support of defendant's initial application to withdraw his guilty plea. We have no evidence that the issue defendant claims was not raised by counsel was not, in fact, presented in the brief relied upon by PCR counsel at argument. We have no reason to believe that PCR counsel did not raise all issues requested by defendant as was his obligation pursuant to Rue. Ibid.

Although PCR counsel convinced the court to discharge defendant from probation, defendant argues counsel was nevertheless ineffective by not raising the issue of his first counsel's failure to investigate a defense and an alleged exertion of pressure on defendant to plead guilty. It is unclear to us why defendant, having completed his probationary sentence, would choose to pursue a claim of ineffective assistance of PCR counsel. At best, success on this claim would ultimately result in the reinstatement of the eleven-count indictment against defendant, the first count of which carries a presumption of incarceration, N.J.S.A. 2C:44-1d, and the possibility of a ten-year prison sentence, N.J.S.A. 2C:43-6a(2).

In any event, the record as presented by defendant does not support his claim that PCR counsel failed to raise the issue of the ineffective assistance of defendant's first defense counsel.

Affirmed.

1 Following an eleven-count indictment, defendant pleaded guilty to one third-degree count as amended from a second-degree crime. He was promised no greater than a non-custodial sentence with restitution of $67,850.

2 We were provided only the cover page and table of contents.