STATE OF NEW JERSEY v. JOSHUA McFARLAND

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4729-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSHUA McFARLAND,

     Defendant-Appellant.
____________________________

                    Submitted December 4, 2018 – Decided December 12, 2018

                    Before Judges Fisher and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Burlington County, Indictment No. 14-11-
                    1172.

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

                    Scott A. Coffina, Burlington County Prosecutor,
                    attorney for respondent (Jennifer B. Paszkiewicz,
                    Assistant Prosecutor, of counsel and on the brief; Linda
                    Rinaldi, Legal Assistant, on the brief).

                    Appellant filed a pro se supplemental brief.
PER CURIAM

      At a shopping center in Evesham Township in August 2014, defendant

knocked down a seventy-five-year-old woman – causing her to suffer a broken

hip, a broken arm, and internal bleeding – while stealing her purse. Defendant

fled the scene but was eventually identified when arrested for a similar crime in

another county the next month. He was charged with first-degree robbery,

second-degree aggravated assault, and fourth-degree theft.         Pursuant to a

negotiated agreement, defendant pleaded guilty to first-degree robbery and was

sentenced to an eleven-and-one-half-year prison term subject to an eighty-five

percent period of parole ineligibility.

      Defendant appealed, arguing the sentence was excessive. We rejected that

argument and affirmed. State v. McFarland, No. A-0360-15 (App. Div. Mar. 9,

2016). Defendant then filed a timely post-conviction relief (PCR) petition that

was denied on June 7, 2017.

      Defendant now appeals the denial of his PCR petition, arguing the judge

erred in denying relief and in failing to provide an evidentiary hearing; he claims

his attorney was ineffective for: (1) "laboring under a conflict of interest"; (2)

"misinforming [him] about the exposure he would face at sentencing [because

of] a prior conviction"; and (3) "failing [to] adequately argue [his] motion to


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suppress his statement to police and . . . failing to enter [into evidence] the video

relied upon in the judge's decision."

      We find insufficient merit in the second and third arguments to warrant

further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only that

the premise for the third claim of ineffectiveness – that defense counsel did not

ensure the judge's consideration of defendant's interrogation video – is

inaccurate. The judge stated during the suppression hearing that she "watch[ed]

it twice."

      Although we reject the second and third arguments, we must remand for

an evidentiary hearing on the first. In seeking relief in the PCR court, defendant

submitted his mother's certification, in which she claimed defendant's criminal

conduct occurred because he was "in the grip of terrible addiction to drugs and

alcohol." She asserted that she and other family members determined "that a

period of incarceration would most likely be . . . beneficial" because it "would

keep [defendant] away from drugs and alcohol." She claimed that this "idea"

was "communicated" to the retained attorney, that the family "and the attorney

were in con[s]ensus with the intent to not oppose incarceration," and that they

collectively "decided to proceed" accordingly.




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                                         3
      In rejecting this argument, the PCR judge correctly recognized that the

mere payment of legal fees by someone other than the client does not necessarily

create a conflict of interest. See generally In re State Grand Jury Investigation,

 200 N.J. 481 (2009). She also correctly determined that whether the attorney

was ineffective on the ground he had divided loyalties could be evaluated to

some degree through an examination of the attorney's performance in the

underlying proceedings.1 And, as the judge observed, the allegedly conflicted

attorney forcefully sought the suppression of incriminating statements defendant

made to police. But that alone does not negate the possibility that counsel might

still have pursued – in accordance with the family's desire – a course that would

ensure defendant's incarceration.2 In the interests of justice, we agree with


1
    The PCR judge presided over the suppression hearing and the earlier
proceedings as well and was entitled to rely on her familiarity with those events
in assessing defense counsel's performance.
2
  We are mindful that the record suggests the State was unwilling to enter into
a plea agreement that would not include a guilty plea to first-degree robbery.
We cannot determine from this undeveloped record whether – in light of the
State's apparent position – there was a reasonable basis for defendant to avoid
the inevitable lengthy sentence a first-degree guilty plea would generate by
going to trial; that question might very well include a consideration of the
evidence the State could have marshaled against defendant. Because of the lack
of a more developed record than presented, we cannot ascertain whether the
advice given by the attorney – and taken by defendant when he pleaded guilty –
was more aligned with the family's wishes than defendant's.


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defendant that an evidentiary hearing into the allegations contained in his

mother's certification is required. The PCR court should factually determine

whether the attorney that defendant's family retained was conflicted for any of

the reasons asserted and whether that conflict warrants a finding of

ineffectiveness under the Strickland/Fritz test.3

      The order under review is vacated and the matter remanded for an

evidentiary hearing in conformity with this opinion.       We do not retain

jurisdiction.




3
  Strickland v. Washington,  466 U.S. 668 (1984); State v. Fritz,  105 N.J. 42
(1987).
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