Kenneth Vercammen Law Office.732-572-0500. Edison, NJ.
October 26, 2015
Lawyer Had No Duty to Disclose Client's Indictable Offense State v. Kane docket App. Div. 2015 docket 12-07-0449 unreported decided February 17, 2015
Lawyer Had No Duty to Disclose Client's Indictable
Offense State v.
Kane docket App. Div. 2015 docket 12-07-0449 unreported decided February 17, 2015 Before Judges Sabatino, Simonelli, and Guadagno.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 12-07-0449.
Gretchen A. Pickering, Assistant Prosecutor, argued the cause for
appellant (Robert L. Taylor, Cape May County Prosecutor, attorney;
Edward H.S. Shim, Assistant Prosecutor, of counsel; Ms. Pickering, of
counsel and on the brief).
James K. Smith, Jr., Assistant Deputy Public Defender, argued the cause
for respondent (Joseph E. Krakora, Public Defender, attorney; Mr. Smith,
of counsel and on the brief).
This matter was previously before this court in 2013, resulting in an
opinion in which we (1) noted that defendant had raised colorable claims
of the ineffectiveness of her prior counsel in municipal court, and (2)
remanded the matter to the Law Division for further development of the
record in the context of an application for post-conviction relief
("PCR"). See State v. Kane, No. A-2725-12 (App. Div. Oct. 25, 2013).
After considering the testimony of six witnesses at the evidentiary
proceeding on remand, the Law Division judge made credibility findings
that were substantially favorable to defendant. The judge concluded in a
detailed written opinion that defendant had been unconstitutionally
deprived of the effective assistance of her first municipal counsel. In
particular, the judge criticized that attorney for advising defendant to
withdraw her guilty plea to a traffic offense under N.J.S.A. 39:3-40
for driving with a suspended license, thereby eliminating her double
jeopardy protection and exposing her to prosecution for a fourth-degree
offense under N.J.S.A. 2C:40-26(b) and a 180-day minimum jail sentence.
As a remedy, the Law Division judge reinstated defendant's original
municipal guilty plea under N.J.S.A. 39:3-40 and barred a prosecution of
defendant under N.J.S.A. 2C:40-26(b) because of double jeopardy
The State now appeals the Law Division's grant of relief to defendant.
The State principally alleges that defendant's first municipal attorney
engaged in fraud and in ethical violations by not alerting the municipal
judge and the municipal prosecutor that his client's conduct could be
subject to prosecution under N.J.S.A. 2C:40-26(b). For the reasons that
follow, we reject the State's arguments and affirm the Law Division's
The procedural history of the matter that led to our remand to the Law Division was set forth in our 2013 opinion
Defendant Davi F. Kane was arrested in Ocean City on January 25, 2012
for driving while on the suspended list. Defendant's vehicle had been
stopped because she had been talking on a cell phone while driving.
There is no contention that she was intoxicated at the time, or was
committing a moving violation.
At the time of defendant's motor vehicle stop, she had been serving a
ten-year suspension of her driver's license as a result of multiple
prior convictions for drunk driving, N.J.S.A. 39:4-50.
On March 22, 2012, defendant, represented by counsel, entered into a
plea agreement with the municipal prosecutor, in which she pled guilty
to driving while on the suspended list, in violation of N.J.S.A.
39:3-40. A violation of that statute is a non-indictable offense,
triggering mandatory imprisonment in the county jail for not less than
ten days, but no more than ninety days. Ibid.
The municipal judge sentenced defendant to thirty days in jail, with the
ability to serve that time intermittently, under an alternate
incarceration program. In addition, the municipal judge imposed a
one-year consecutive suspension of defendant's driver's license, plus
various fines and court costs.
The original municipal plea was advantageous to defendant because her
conduct was also in violation of N.J.S.A. 2C:40-26(b). That statute,
which became effective on August 1, 2011, makes it a fourth-degree crime
for a motorist to operate a vehicle at a time when his or her driver's
license is suspended or revoked for a second or subsequent conviction
for driving while intoxicated ("DWI"). In State v. Carrigan, 428 N.J.
Super. 609 (App. Div. 2012), certif. denied, 213 N.J. 539 (2013), we
upheld the constitutionality of this new fourth-degree statute, allowing
it to apply in circumstances where the underlying DWI suspensions were
imposed prior to the statute's August 2011 effective date.
The reason that defendant's original plea was especially advantageous to
her is that N.J.S.A. 2C:40-26(b) carries a mandatory minimum penalty of
180 days in prison. N.J.S.A. 39:3-40 is a lesser-included offense of
N.J.S.A. 2C:40-26(b), because the elements of the former statute are
subsumed among the elements of the latter. Pursuant to State v. Dively,
92 N.J. 573 (1983), if defendant's original guilty plea to the lesser
offense in municipal court had not been vacated, the State would be
precluded under Double Jeopardy principles from pursuing a fourth-degree
indictment against defendant for the same conduct.
For reasons that [were] not explained in the record [on the first
appeal], another attorney, who was associated with defendant's original
counsel, appeared five days later before the municipal judge in the
company of defendant and withdrew her guilty plea to the lesser offense.
The municipal judge took no sworn testimony from defendant
acknowledging that she was withdrawing her plea voluntarily. The only
comment by defendant recorded in the transcript is her brief remark to
the judge stating that she had paid $236 of the fines that had been
Subsequent to the withdrawal of defendant's municipal plea, she was
indicted by the grand jury for the fourth-degree offense under N.J.S.A.
2C:40-26(b). She then appeared with the attorney who had withdrawn her
initial guilty plea in the Law Division, and pled guilty to that more
serious charge. In exchange, the State recommended that she be sentenced
to the 180-day minimum under the statute.
On the day of sentencing before a different Law Division judge,
defendant requested an opportunity to obtain new counsel. Thereafter,
defendant's new attorney moved to withdraw her guilty plea to the
fourth-degree offense. The Law Division judge declined that request,
essentially because defendant had not asserted a colorable claim of
Defendant then moved for reconsideration, which the Law Division judge
denied. The judge recognized that defendant had potentially viable
Double Jeopardy and ineffectiveness arguments, but she directed that
they be pursued separately in a future PCR. The judge then sentenced
defendant to thirty days in the county jail, without explaining how that
shorter sentence could comport with the 180-day minimum under N.J.S.A.
2C:40-26(b). Defendant's service of the jail sentence [was] stayed,
however, pending the State's appeal.
[Kane, supra, slip op. at 3-6.]
In considering the State's appeal and defendant's cross-appeal in 2013
from the Law Division judge's original ruling, we made several key
observations and determinations. As to the State's appeal, we
acknowledged that the thirty-day sentence that the Law Division had
imposed for the indictable offense under N.J.S.A. 2C:40-26(b) improperly
conflicted with the 180-day mandatory minimum jail sentence required by
the Legislature for that offense, assuming, for the sake of argument,
that defendant's conviction of that offense was valid. Id. at 12.
However, we also noted the State's frank acknowledgement in its 2013
brief that defendant's claims of her former counsel's ineffectiveness in
allowing her to withdraw her municipal plea and thereby lose her double
jeopardy protection "certainly seem to have some validity." Id. at 6.
In our 2013 opinion, we addressed the two-part constitutional test of
ineffectiveness prescribed by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed.2d 674, 693 (1984) (requiring proof that (1) counsel's performance
was deficient and (2) the deficient performance actually prejudiced the
accused's defense). Id. at 7. As to the second prong of Strickland
concerning actual prejudice, we found it "readily apparent, as a matter
of law, that if [defendant's] plea to [the] lesser-included [Title 39]
offense had not been withdrawn, she would have been protected under the
Double Jeopardy Clause from prosecution for the fourth-degree crime
[under Title 2C]." Id. at 8; see also Dively, supra, 92 N.J. at 585-86.
As to the first prong of the Strickland test concerning deficient
performance, we expressed substantial concerns about why defendant's
municipal counsel would have allowed her original guilty plea to be
withdrawn. Id. at 9-10. In expressing those concerns, we suggested that
the municipal prosecutor might not have initially recognized a potential
for defendant's indictment under N.J.S.A. 2C:40-26(b), a statute that
had been recently enacted. Id. at 10. Alternatively, we raised the
possibility that "defendant's former [municipal] counsel may have been
under a belief that he had some ethical obligation to have the plea
Five witnesses were called by the defense at the remand hearing in the
Law Division: defendant herself; defendant's initial attorney who
appeared with her in municipal court on March 22, 2012 when she entered
her guilty plea ("the first attorney"); the second attorney who appeared
with defendant on March 27, 2012 when her guilty plea was withdrawn
("the second attorney"); the municipal prosecutor; and the municipal
judge. The State presented one witness, the former municipal court
employee1 who had been the "court recorder" for the proceedings on March
22, and 27, 2012.
The remand hearing revealed that defendant's withdrawal of her initial
guilty plea in municipal court had been precipitated by oral
communication between the municipal court staff and the first attorney.
The court contacted the first attorney based on concerns that came to
the attention of the municipal judge that the plea may have been, as the
judge termed it, "illegal" because of the potential for prosecuting
defendant for a fourth-degree indictable offense under N.J.S.A.
2C:40-26(b).2 Notably, the municipal prosecutor did not file an
application with the court to have the Title 39 guilty plea vacated, nor
did the prosecutor urge defendant's counsel to take steps to have that
plea withdrawn. Instead, the municipal prosecutor candidly testified
that he had told the second attorney that he had "made a mistake," and
that defendant's case would qualify as an indictable offense under the
criminal code. He further told the second attorney that he "was willing
to live with the . . . terms of the plea that had first been presented
under [N.J.S.A. 39:3-40]. . . . [and that he] was not doing anything to
have that plea set aside." The municipal prosecutor also stated that,
upon learning that defendant was returning to court to withdraw her
guilty plea, it "confounded" him as to why she was doing that.
The first attorney acknowledged at the remand hearing that he had been
aware of defendant's driving record at the March 22, 2012 hearing,
having represented defendant on multiple prior occasions. He
specifically acknowledged that he was aware that defendant's license had
been under suspension at the time of her arrest due to previous
convictions for DWI and for driving with a suspended license. He was
aware of the criminal code amendments that made driving with a suspended
license due to a prior conviction for driving while intoxicated a
fourth-degree indictable offense. The first attorney also generally was
aware of Dively, supra, 92 N.J. at 573, but he maintained that Dively,
and the double jeopardy implications of defendant's case, were not in
his "train of thought at the time."
The first attorney recalled receiving a communication from the municipal
court after the March 22, 2012 hearing regarding defendant's case being
"relisted" for further proceedings. Thereafter, he informed defendant
by phone that he was unable to accompany her to court for the second
hearing due to another court appearance that he could not avoid. The
first attorney did not take any steps to discover why the court was
scheduling a second hearing after defendant had already been sentenced,
but he had "assumed" that the judge had decided to reject the plea,
based on the applicability of the criminal statute.
The first attorney did not request a postponement or adjournment of the
second hearing that ultimately occurred on March 27, 2012. He also
testified that he never had a conversation with the second attorney,
whom defendant herself arranged, about the case. On that point, the
first attorney acknowledged that he should have discussed the case with
the second attorney prior to the March 27 hearing.
The first attorney further testified that, although he had filed a
notice of appearance in municipal court, he never filed a substitution
of attorney, nor did he receive a substitution from another attorney. In
his mind, he testified, it was "acceptable" to him that the second
attorney appeared on his behalf at the March 27 hearing, although he
said that he learned of that attorney's appearance only after the fact,
upon reading the hearing transcript. Although he did not explicitly
acknowledge as much, the first attorney's testimony fairly suggested
that he was aware that he was still the attorney of record for defendant
on March 27, 2012.
The second attorney testified at the remand hearing that, at defendant's
request, he agreed to "stand in" for the first attorney, who could not
appear at the March 27, 2012 hearing due to a schedule conflict. At that
March 27 hearing, the second attorney entered his appearance on behalf
of the first attorney rather than on behalf of defendant, specifically
presenting himself "on behalf of [the first attorney] representing
State v. Kane in this matter." The second attorney testified, contrary
to the first attorney, that he did have a brief conversation with the
first attorney regarding defendant's case.
The second attorney contended that the first attorney had called him
prior to the March 27 hearing, and that they had a "[v]ery, very short
conversation," in which the first attorney allegedly informed the second
attorney of his scheduling conflict and told the second attorney that
he had "already spoken to the prosecutor." The second attorney further
testified that the first attorney told him to "just withdraw
[defendant's] guilty plea."
After arriving at the municipal court on March 27, 2012, the second
attorney had a brief conversation with the municipal prosecutor, a
conversation which he described as follows
I went up to the prosecutor, asked him if he could fill me in as to what
was going on. He told me that he had spoken to [the first attorney]
about the matter. The police had charged her with the wrong offense and
that was just about all he was going to tell me on that. It was very
After his conversation with the prosecutor, the second attorney then
told defendant that he did not "think that it [was] a good idea . . . to
withdraw her plea at this time," without going into detail as to his
reasons. He described the conversation as follows
I told [defendant] that I didn't think it was a good idea [to withdraw
her guilty plea]. And she told me I wasn't there to think; I was to do
what her attorney wanted me to do. So we approached . . . the judge and
put it on the record.
Thereafter, the second attorney withdrew defendant's guilty plea. As the
second attorney recalls it, and the municipal transcript confirms,
defendant was not placed under oath before or during the plea
withdrawal. The second attorney acknowledged that he withdrew
defendant's plea despite his reservations about doing so. He further
acknowledged that he withdrew defendant's plea because he felt that it
was defendant's desire to withdraw the plea that day, based on her
comment about doing "what her attorney wanted [him] to do" and based on
the fact that he felt he was not "in the loop" and was just "[f]ollowing
[the first attorney's] orders." After defendant's guilty plea had been
withdrawn at the March 27 hearing, the second attorney observed that
defendant appeared "upset."
In his remand testimony, the second attorney suggested that he knew of
the indictable offenses under N.J.S.A. 2C:40-26(b), but he expressed
uncertainty as to whether he was actually aware of the penalties under
that statute at the time of the March 27, 2012 hearing. In addition, the
second attorney acknowledged that March 27, 2012 was the first occasion
on which he had ever withdrawn a plea in his legal career.
In her own testimony at the remand hearing, defendant related the
circumstances surrounding the withdrawal of her municipal guilty plea at
the March 27, 2012 hearing. Defendant testified that her first attorney
had called her on the telephone within one or two days after the March
22, 2012 hearing and told her that "there's been a mistake and [that] I
had to return back to Ocean City Court and take back my guilty plea."
Defendant stated that the first attorney told her that "they would issue
a warrant for my arrest" if she did not comply.
Defendant subsequently learned from the first attorney that he could not
accompany her to the second hearing because he said that he had to be
in another court for another matter. Defendant thus asked an attorney in
the same law firm where defendant also had worked, to accompany her, to
which he agreed.
Immediately before the March 27 hearing, defendant and the second
attorney had a conversation in which that attorney expressed that he was
not comfortable withdrawing defendant's guilty plea, because defendant
had already been sentenced. Her remand testimony suggests that she was
led to believe that if she withdrew her municipal guilty plea, her case
"would get sent to the grand jury," although she maintained that she and
the second attorney did not discuss the potential penalties of
withdrawing her municipal plea.
At the March 27 hearing, the municipal prosecutor informed the court
that the second attorney was making a motion to vacate defendant's
municipal guilty plea, and that he had "no objection" to this course of
action. The municipal prosecutor further suggested, without clearly
indicating, that defendant would be charged with an indictable offense,
which he described "is what should have happened." The municipal judge
addressed the second attorney only to ask him whether he was in
agreement, to which counsel indicated that he was, although it is not
clear precisely to what he was agreeing.
As we have previously noted, the municipal judge did not address
defendant at the March 27 withdrawal hearing. The only time that
defendant spoke in court on the record on that date was at the
conclusion of the hearing, when she inquired about the $236 in fines
that she had already paid, which the judge indicated should be returned
According to defendant's remand hearing testimony, it was not until the
hearing in the Law Division on September 6, 2012, when she entered a
guilty plea on the indictment, that she realized that she could go to
jail. Although she remembered entering a guilty plea under oath before
the Law Division judge who was then presiding, defendant did not
understand that the consequences of that guilty plea involved 180 days
in jail. At the remand hearing, defendant acknowledged initialing and
signing the plea form, and that the Law Division judge had asked her
questions about that form. Defendant also asserted in her testimony that
the second attorney did not review the plea form with her in detail.
The testimony presented by the State from the municipal court recorder
reflects that, at some point on March 22, after defendant had pled
guilty to the Title 39 violation, she raised with the municipal judge
the issue of whether defendant should have instead been prosecuted for
the fourth-degree offense under the new criminal code provision. As the
court recorder recalled it, that discussion prompted other discussions
involving the judge, although she did not participate in those
conversations. The municipal judge's own testimony was substantially in
accord with the court recorder's recollections.
In a written opinion dated July 30, 2014, Judge Patricia M. Wild found
that the first attorney, but not the second attorney, had provided
ineffective assistance of counsel in representing defendant. The judge
found that neither the first nor the second attorney had advised
defendant of the penal consequences, specifically the 180-day mandatory
minimum sentence, to which she would be subject if she pled guilty to,
or was convicted of, a violation of N.J.S.A. 2C:40-26(b). The judge also
noted that both the first attorney and the second attorney represented
defendant free of charge.
As to the first attorney, the judge made several key factual
observations. She found that he "did not understand the sentencing
consequences of a conviction under [N.J.S.A. 2C:40-26(b)]." In response
to the directly-conflicting testimony between the first and second
attorney as to whether they had spoken with each other prior to
defendant's March 27, 2012 municipal plea withdrawal hearing, the judge
found the second attorney's testimony credible and believed that such a
conversation, albeit brief, had occurred.
The judge determined that the first attorney "demonstrated unreasonable
professional judgment" in his representation of defendant, by
"abandon[ing] his client at a critical time in the proceedings[.]"
Specifically, the judge cited the fact that the first attorney "failed
to request an adjournment of the March 27, 2012 hearing, did not appear
at the hearing, and did not arrange to have competent counsel appear on
his behalf." In addition, the judge found that the first attorney failed
to provide defendant with information that would have allowed her to
make an informed decision about withdrawing her municipal guilty plea,
specifically the "double jeopardy implications of further proceedings"
and the "potential penal consequences" if she were to be charged under
the criminal statute.
As to the second attorney, the judge factually determined that he had
"consistently expressed his concern" to defendant "as to the wisdom of
withdrawing her [guilty] plea," and had, in fact, counseled defendant
not to withdraw her plea. The judge also found that the second attorney
was not aware of the consequences, either the double jeopardy
implications or the penal consequences, of withdrawing defendant's
municipal guilty plea, until the Law Division hearing in September 2012.
The judge also found it significant that the second attorney had stated
his appearance at the March 27, 2012 hearing as being "on behalf of
[the first attorney]."
Based on these factual findings, Judge Wild concluded that the second
attorney had not provided ineffective assistance of counsel to
defendant. Because the first attorney remained defendant's attorney of
record at the March 27, 2012 hearing, he, rather than the second
attorney, had breached his duty of diligence and of communication with
defendant. Specifically, Judge Wild found
This case comes down to the following. Effective counsel would have
requested an adjournment of either the municipal matter or the Superior
Court matter and would have appeared with [defendant] at Municipal Court
on March 27, 2012. Effective counsel would have told [defendant], "You
have a good deal in municipal court and you are not required to withdraw
your plea; you should not withdraw your plea and if you do, you will be
subject to indictment in Superior Court and, if you plead guilty to or
are found guilty of the indictable charge, you will be required to spend
a minimum of 180 days in jail." [The first attorney] knew all of this.
[The first attorney] did not tell [defendant] any of this. Instead, he
abandoned her, resulting in her representation by a relatively
inexperienced, though well-intentioned, attorney. Effective counsel
would never have abandoned his client.
The judge further found that the second attorney "was hampered in giving
advice" to defendant due to the first attorney's failure to give
"effective advice" to defendant on the implications of withdrawing her
plea, particularly because the judge found that the first attorney
"obviously left [defendant] with the belief that she had no alternative
other than to withdraw her municipal court plea."
Citing the court's "broad power" to fashion a remedy, Judge Wild
therefore vacated defendant's guilty plea and conviction under
Indictment No. 12-07-0449, thereby dismissing that matter on the grounds
of double jeopardy. The judge additionally vacated defendant's
withdrawal of her guilty plea to the municipal complaint, thereby
reinstating defendant's guilty plea to that complaint and reinstating
the sentence initially imposed by the municipal judge in municipal
In its present appeal, the State argues that the trial court erred in
granting defendant PCR and in reinstating her original municipal guilty
plea and sentence for a violation of N.J.S.A. 39:3-40. The State mainly
alleges that defendant's guilty plea was the product of fraud, that her
first attorney acted unethically in not advising the municipal judge and
the municipal prosecutor that defendant was an offender subject to
indictment under N.J.S.A. 2C:40-26(b), and because defendant had not
demonstrated the "actual prejudice" second prong of the Strickland test
for ineffectiveness. We reject these arguments and affirm the trial
court's order, substantially for the sound reasons articulated in Judge
Wild's detailed written opinion. We add only a few comments.
There is insufficient evidence in the record to establish that
defendant's original guilty plea was procured by fraud or unethical
behavior on the part of defense counsel. Defendant's driving abstract
was available to the municipal judge and the municipal prosecutor, and
was apparently consulted by the court at or prior to the March 22, 2012
plea hearing. The abstract should have readily revealed that defendant
was on the revoked list because of a second or subsequent DWI conviction
and thus her current driving record posed a violation of N.J.S.A.
To be sure, N.J.S.A. 2C:40-26(b) was a relatively new statute as of
March 2012, and it is conceivable that the court and the municipal
prosecutor may not have been well-attuned to its potential application
in DWI cases. Nevertheless, we reject the State's claim that defense
counsel was obligated under R.P.C. 3.3(a)(5) or other ethical rules to
spotlight the statute's potential application adverse to his client's
interests. The situation here is markedly distinguishable from In re
Seelig, 180 N.J. 234 (2004), in which a defense attorney affirmatively
misled a municipal judge about the facts in a vehicular case, i.e.,
whether the victims had died. As the municipal prosecutor honestly
acknowledged here, it was his responsibility to be aware of the Title 2C
provision's potential applicability, and to refrain from participating
in the entry of a guilty plea to a lesser charge that would have double
jeopardy implications for a future prosecution for an indictable
offense. The fact that the municipal prosecutor accepted that the
original plea was his mistake and decided not to file an application or
pursue means to have the plea vacated speaks volumes. There was no
"fraud" or unethical behavior by the defense here. Instead, as Judge
Wild aptly found, defendant's first attorney was deficient in advising
her to withdraw the plea to her detriment without explaining to her the
consequences of that course of action. Even giving all due respect to
the court and cooperating with its request to have the case relisted, a
proper advocate for defendant would have politely resisted the efforts
to have the plea withdrawn. In addition, as Judge Wild found, the first
attorney, as counsel of record, failed to provide proper guidance to the
second attorney and ensure that defendant's rights at the March 27,
2012 hearing were not sacrificed.
There also was nothing "illegal" about defendant pleading guilty to the
Title 39 violation as a lesser-included offense of N.J.S.A. 2C:40-26(b).
See, e.g., State v. Hessen, 145 N.J. 441, 452 (1996) (noting that the
decision "to offer a plea bargain to a lesser included offense"
implicates "prosecutorial authority and discretion").
The State's contention that the second prong of Strickland is not
satisfied here requires no extensive discussion. R. 2:11-3(e)(2). As we
recognized in our first opinion, the actual prejudice to defendant
stemming from these unfortunate circumstances is manifest. The first
attorney's improvident decision to have defendant withdraw her guilty
plea to the municipal charges, especially since her guilt of driving on
the suspended list was clear, surely was prejudicial to her in losing
her double jeopardy protection. See Dively, supra, 92 N.J. at 586.
1 The employee now works for the State judiciary.
2 In his testimony, the municipal judge did not specify why he was
concerned about the legality of the plea, but it appears from the
context that the concerns stemmed from the possibility of an indictable