STATE OF NEW JERSEY v. KENNETH L. MCNAMARA

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2121-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

KENNETH L. MCNAMARA,

Defendant-Appellant.
_________________________

Submitted April 4, 2022 – Decided April 18, 2022

Before Judges Fasciale and Firko.

On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Accusation No. 17-07-
0995.

Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel, on
the brief).

Lori Linskey, Acting Monmouth County Prosecutor,
attorney for respondent (Alecia Woodard, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).

PER CURIAM
Defendant Kenneth L. McNamara appeals from a July 30, 2020 order

denying his petition for post-conviction relief (PCR) without an evidentiary

hearing. In his petition, defendant contended his sentence is illegal and his plea

counsel was ineffective. For the reasons that follow, we vacate the July 30, 2020

order without prejudice, and reverse and remand for an evidentiary hearing.

We derive the following facts from the record. Between April 28 and June

15, 2017, defendant repeatedly contacted the victim, R.K. 1 and left her

threatening voice mails and text messages threatening her life. Defendant

stalked R.K. through these communications, followed her, and climbed onto the

roof of her house.

On July 24, 2017, defendant waived his right to an indictment and

consented to be charged by way of accusation to third-degree terroristic threats,

contrary to N.J.SA. 2C:12-3(b), and fourth-degree stalking, contrary to N.J.S.A.

2C:12-10(b). Defendant was also charged by way of a summons with petty

disorderly persons harassment, contrary to N.J.S.A. 2C:33-4(a), and petty

disorderly persons criminal trespass, contrary to N.J.S.A. 20:18-3(b). In

addition, defendant was charged on a warrant with disorderly persons resisting

1
We use initials to protect the identity of the victim. R. 1:38-3(d)(10).
A-2121-20
2
arrest, contrary to N.J.S.A. 2C:29-2(a)(1) and petty disorderly persons

harassment, contrary to N.J.S.A. 2C:33-4(a).

That same day, defendant entered into a negotiated plea agreement with

the State. He agreed to plead guilty to both counts in the accusation in exchange

for the dismissal of the remaining charges in the other complaints. As part of

the plea agreement, defendant consented to a permanent restraining order, which

required him to reside and distance himself outside a five-mile radius of R.K.'s

house.

In establishing the factual basis for his guilty plea, defendant testified that

he called R.K. on a "daily basis" from "different cell phone numbers" and

admitted telling her "you will wish for a bullet by the time I'm done with you."

Defendant mentioned an "A-R 15" (Arma Lite Rifle), and said "bring it" to R.K.

in connection with his threats. He admitted to making these threats in order to

place R.K. "in fear that they would be carried out." Defendant acknowledged

he followed R.K. in Marlboro Township and stalked her by sending text

messages from different cell phones. On April 28, 2017, defendant conceded he

went to R.K.'s house and climbed onto her roof. Defendant also claimed to be

"drunk" when many of these events occurred, which he understood was not a

defense to his actions.

A-2121-20
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The plea court found there was an adequate factual basis for the guilty

plea and that defendant understood the nature of the charges against him and the

consequences of his guilty plea. In addition, the plea court held defendant

"entered the plea knowingly and voluntarily with the assistance of competent

counsel" and defendant was "satisfied" with counsel's services. Defendant

indicated he possibly resided within a five-mile radius of R.K.'s house, and he

might "have to relocate." The court accepted defendant's guilty plea and

executed the consent order 2 previously signed by defendant and the permanent

restraining order, which barred defendant from having contact with R.K., her

family members, and friends.

Following his plea allocution, defendant tried to call R.K. from jail using

other inmates' pin numbers. On August 7, 2017, defendant called his wife and

told her, "you better call [R.K.] up and tell her to get up $100,000 and get me

the fuck out of here or she better find another planet to live on." He also wanted

his wife to tell R.K., "I am thinking about how I am going to torture her ass[,]

[i]t may not be now but sometime in the future," and "[s]he will meet the wrath

of God."

2
The consent order was not provided in defendant's appendix.
A-2121-20
4
On August 25, 2017, defendant called his wife again and told her to

contact R.K. He wanted R.K. to hear, "you tell the bitch that she better come up

with $100,000 or she's history" and repeated his earlier warnings. The next day,

defendant called his wife again from jail and advised her to contact R.K. As a

result of these phone calls, defendant was charged with fourth-degree contempt

for violating the restraining order, contrary to N.J.S.A. 2C:29-9(a).

On October 6, 2017, defendant appeared with his counsel at his sentencing

hearing. Prior to being sentenced, "[p]lea counsel argued for a lesser sentence

than the negotiated term" and also sought to modify the restraining order to

permit defendant to remain at his home, which was located within a five-mile

radius of R.K.'s house. The sentencing court denied these requests and advised

defense counsel to file a motion to modify the restraining order. The court

sentenced defendant to three years' imprisonment on the terroristic threats

charge and eighteen months' imprisonment on the stalking charge to run

concurrent to each other. The requisite fines and penalties were imposed . 3 On

November 28, 2017, the judgment of conviction was amended to delete the

eighteen-month sentence on the stalking charge.

3 On October 24, 2017, defendant's driving while intoxicated charge was
removed from his judgment of conviction.
A-2121-20
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On February 19, 2019, defendant filed a pro se PCR petition and claimed

plea counsel was ineffective by: (1) failing to timely appeal his sentence; (2)

failing to inform him on how to request the public defender to represent him on

appeal; and (3) the geographic restriction in the restraining order constituted an

illegal sentence and exceeded the court's authority.

In his supplemental PCR brief, defendant argued plea counsel was

ineffective for: (1) failing to explain the effects of the permanent restraining

order; (2) failing to argue against aggravating factors; and (3) failing to raise

and argue mitigating factors.

On June 19, 2020, the PCR court conducted oral argument on defendant's

PCR petition. Defendant was represented by PCR counsel. After hearing oral

argument, the PCR court reserved decision. On July 30, 2020, the PCR court

issued a written opinion denying defendant's PCR petition without affording him

an evidentiary hearing. The PCR court found defendant's contention that his

plea counsel failed to appeal his sentence was merely a "bald assertion" because

defendant did not provide evidence in support of this claim. In addition, the

PCR court found defendant's illegal sentence claim relative to the impos ition of

the permanent restraining order was procedurally barred by Rule 3:22-4(a)(2)

because defendant could have filed a motion to correct an illegal sentence but

A-2121-20
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did not. The PCR court highlighted that the sentencing court told counsel "t o

file a motion to change the order" because the order "had been in effect since

the plea on July 24, 2017." The PCR court found defendant failed to show his

plea counsel's actions were deficient or prejudicial. A memorializing order was

entered.

Defendant presents the following arguments for our consideration on

appeal:

THE PCR COURT IMPROPERLY DENIED
DEFENDANT'S CLAIM THAT HE RECEIVED
INEFFECTIVE ASSISTANCE OF HIS PLEA
COUNSEL WITHOUT AFFORDING HIM AN
EVIDENTIARY HEARING.

A. THE PREVAILING LEGAL PRINCIPLES
REGARDING CLAIMS FOR INEFFECTIVE
ASSISTANCE OF COUNSEL, EVIDENTIARY
HEARINGS AND PETITIONS FOR [PCR].

B. DEFENDANT'S ILLEGAL SENTENCE CLAIM
WAS NOT PROCEDURALLY BARRED, AND
RAISED A PRIMA FACIE CLAIM FOR [PCR]
ENTITLING DEFENDANT TO AN
EVIDENTIARY HEARING.

C. DEFENDANT'S CLAIM THAT PLEA
COUNSEL WAS INEFFECTIVE FOR
FAILING TO ADEQUATELY ADVISE HIM
AS TO ALL THE CONSEQUENCES OF THE
RESTRAINING ORDER RAISED A PRIMA
FACIE CLAIM FOR [PCR] ENTITLING HIM
TO AN EVIDENTIARY HEARING.

A-2121-20
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D. COUNSEL'S FAILURE TO FILE AN APPEAL.

II.

"The Sixth Amendment of the United States Constitution and Article I,

paragraph 10 of the New Jersey Constitution require that a defendant receive

'the effective assistance of counsel' during a criminal proceeding." State v.

Porter, 216 N.J. 343, 352 (2013). When a guilty plea is involved, a defendant

must satisfy two criteria to set aside the plea based on ineffective assistance of

counsel. See State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009). The defendant

must demonstrate "(i) counsel's assistance was not 'within the range of

competence demanded of attorneys in criminal cases;' and (ii) '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. (alteration in

original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)); see also

Strickland v. Washington, 466 U.S. 668, 694 (1984); State v. Fritz, 105 N.J. 42,

58 (1987). The defendant must also show that doing so "would have been

rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372

(2010); accord Nuñez-Valdéz, 200 N.J. at 139.

Rule 3:22-10(b) reflects the case law regarding the defendant's right to an

evidentiary hearing. It provides:

A-2121-20
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A defendant shall be entitled to an evidentiary hearing
only upon the establishment of a prima facie case in
support of [PCR], a determination by the court that
there are material issues of disputed fact that cannot be
resolved by reference to the existing record, and a
determination that an evidentiary hearing is necessary
to resolve the claims for relief. To establish a prima
facie case, defendant must demonstrate a reasonable
likelihood that his or her claim, viewing the facts
alleged in the light most favorable to the defendant, will
ultimately succeed on the merits.

[R. 3:22-10(b).]

"Defendant may not create a genuine issue of fact, warranting an

evidentiary hearing, by contradicting his [or her] prior statements without

explanation." State v. Blake, 444 N.J. Super. 285, 299 (App. Div. 2016). To

determine whether a prima facie claim of ineffective assistance of counsel is

present, the claim must be evaluated under the two-prong Strickland test where

"a reviewing court must determine: (1) whether counsel's performance 'fell

below an objective standard of reasonableness,' and if so, (2) whether there

exists a 'reasonable probability that, but for counsel's unprofessional error, the

result of the proceeding would have been different.'" State v. Castagna, 187 N.J.
293, 313-14 (2006) (citations omitted) (quoting Strickland, 466 U.S. at 688, 694

(internal citation omitted)).

A-2121-20
9
To establish a prima facie case of ineffective assistance of counsel,

defendant "must do more than make bald assertions that" counsel's performance

was substandard. Porter, 216 N.J. at 355 (quoting State v. Cummings, 321 N.J.

Super. 154, 170 (App. Div. 1999)). "Rather, defendant must allege specific facts

and evidence supporting his allegations." Ibid. A defendant bears the burden

of establishing a prima facie claim. State v. Gaitan, 209 N.J. 339, 350 (2012).

"However, a defendant is not entitled to an evidentiary hearing if the

'allegations are too vague, conclusory, or speculative.'" Porter, 216 N.J. at 355

(quoting State v. Marshall, 148 N.J. 89, 158 (1997)). "Thus, when a petitioner

claims his [or her] trial attorney inadequately investigated his case, he [or she]

must assert the facts that an investigation would have revealed, supported by

affidavits or certifications based upon the personal knowledge of the affiant or

the person making the certification." Ibid. (quoting Cummings, 321 N.J. Super.

at 170); accord R. 3:22-10(c). A defendant is entitled to an evidentiary hearing

if the facts "viewed 'in the light most favorable to defendant,'" would entitle him

or her to PCR. Marshall, 148 N.J. at 158 (quoting State v. Preciose, 129 N.J.
451, 462-63 (1992)); R. 3:22-10(b). "If, with the facts so viewed, the PCR claim

has a reasonable probability of being meritorious, then the defendant should

A-2121-20
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ordinarily receive an evidentiary hearing in order to prove his entitlement to

relief." State v. Jones, 219 N.J. 298, 311 (2014).

As the PCR court did not conduct an evidentiary hearing on the claims

that defendant raises in this "appeal, we 'conduct a de novo review.'" State v.

Jackson, 454 N.J. Super. 284, 291 (App. Div. 2018) (quoting State v. Harris,

181 N.J. 391, 421 (2004)). Here, on the record before us, defendant has

demonstrated an evidentiary hearing is warranted. The restraining order was

entered in accordance with the anti-stalking statute, which provides, in pertinent

part:

a. A judgment of conviction for stalking shall operate
as an application for a permanent restraining order
limiting the contact of the defendant and the victim who
was stalked.

b. A hearing shall be held on the application for a
permanent restraining order at the time of the verdict or
plea of guilty unless the victim requests otherwise.
This hearing shall be in Superior Court. A permanent
restraining order may grant the following specific
relief:

(1) An order restraining the defendant
from entering the residence, property,
school, or place of employment of the
victim and requiring the defendant to stay
away from any specified place that is
named in the order and is frequented
regularly by the victim.

A-2121-20
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[N.J.S.A. 2C:12-10.1.]

No hearing was conducted prior to the entry of the permanent restraining

order entered against defendant in violation of the anti-stalking statute and the

due process clauses contained in the United States Constitution, Amendment

XIV, Section 1, and the New Jersey Constitution, Article I, Section 1. N.J.S.A.

2C:12-10.1(b); see, e.g., Franklin v. Sloskey, 385 N.J. Super. 534, 540 (App.

Div. 2006) (noting a final restraining order issued without a proper hearing to

be a fundamental violation of the defendant's constitutional right to due process).

Here, the PCR court simply relied upon defendant's plea allocution and

determined he understood he might have to relocate his residence. This runs

afoul of the hearing requirement set forth in N.J.S.A. 2C:12-10.1.

Moreover, at the sentencing hearing, plea counsel raised the geographical

distance issue and there were inconsistent assertions made by the court and

assistant prosecutor about whether defendant would need to re-locate. A

reasonable interpretation of the record suggests defendant might not have to

move, and he may not have pled guilty pursuant to the plea agreement, if that

A-2121-20
12
meant he had to re-locate. We also conclude defendant is entitled to an

evidentiary hearing as to why counsel never filed an appeal on his behalf. 4

Therefore, we vacate the July 30, 2020 order without prejudice denying

defendant's PCR relief and remand for an evidentiary hearing consistent with

our opinion. By doing so, we express no opinion as to whether defendant's

sentence was illegal because the permanent restraining order was issued or as to

any other issues raised in his PCR petition or his supplemental PCR brief.

Reversed and remanded. We do not retain jurisdiction.

4
"[A] lawyer who disregards specific instructions from the defendant to file a
notice of appeal acts in a manner that is professionally unreasonable." State v.
Jones, 446 N.J. Super. 28, 32 (App. Div. 2016) (quoting Roe v. Flores-Ortega,
528 U.S. 470, 477 (2000)). In most circumstances, an attorney's error, "even if
professionally unreasonable," does not require setting aside a judgment if the
error had no effect on the outcome of the case. Ibid. (citation omitted). However,
a "forfeiture of the proceeding itself" is a special circumstance that leads to a
"presumption of prejudice." Ibid. (citations omitted). "[W]hen counsel's
constitutionally deficient performance deprives a defendant of an appeal that he
[or she] otherwise would have taken, the defendant has made out a successful
ineffective assistance of counsel" claim. Ibid. (citing Flores-Ortega, 528 U.S.
at 484). The subject of the failure to file an appeal is an appropriate area for the
remand hearing.
A-2121-20
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