STATE OF NEW JERSEY VS. KEMAL ALBUT (09-04-0422, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2867-18T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

KEMAL ALBUT, a/k/a KEMEL

ALBUT, and KEMAL ALBERT,

Defendant-Respondent.

____________________________

Argued October 7, 2019 – Decided January 14, 2020

Before Judges Rothstadt and Moynihan.

On appeal from the Superior Court of New Jersey, Law

Division, Passaic County, Indictment No. 09-04-0422.

Christopher W. Hsieh, Chief Assistant Prosecutor,

argued the cause for appellant (Camelia M. Valdes,

Passaic County Prosecutor, attorney; Christopher W.

Hsieh, of counsel and on the brief).

Adam W. Toraya, Designated Counsel, argued the

cause for respondent (Joseph E. Krakora, Public

Defender, attorney; Adam W. Toraya, on the brief).

PER CURIAM

We granted the State leave to appeal from the Law Division's order

granting defendant Kemal Albut's petition for post-conviction relief (PCR).

Defendant's petition was entered after the PCR judge rejected defendant's

arguments that his trial and appellate counsel rendered ineffective assistance of

counsel (IAC), but concluded that defendant was deprived of due process by the

court's failure to conduct a pretrial conference or receive from counsel a pretrial

memorandum under Rule 3:9-1(f).

On appeal, the State argues the following point to us:

POINT I

BECAUSE TRIAL COUNSEL COMPETENTLY

ADVISED DEFENDANT REGARDING EXTENDED

TERM SENTENCING CONSEQUENCES OF GOING

TO TRIAL VERSUS ACCEPTING A GUILTY

OFFER, THE TRIAL COURT'S INADVERTENT

FAILURE TO REPEAT THOSE ADVISEMENTS

DURING A [RULE] 3:9-1(f) PRETRIAL

CONFERENCE OR PRETRIAL MEMORANDUM

DID NOT GIVE RISE TO A DUE PROCESS

VIOLATION.

Having considered the State's argument in light of the record and

applicable legal principles, we reverse the PCR judge's determination as it was

unsupported by any controlling law.

We summarize the pertinent facts from the record. In 2009, a grand jury

charged defendant in a five-count indictment with first-degree murder, N.J.S.A.

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2C:11-3(a)(1) or (2), first-degree attempted murder, N.J.S.A. 2C:5-1, and

weapons charges, all arising from a 2008 shooting that caused one person's death

and the injury of another. After his trial in 2011, a jury convicted defendant of

the lesser-included offenses of aggravated manslaughter, N.J.S.A. 2C:11-

4(a)(1), aggravated assault by attempting to or causing bodily injury with a

deadly weapon, N.J.S.A. 2C:12-1(b), and the weapons charges. At his January

19, 2012 sentencing, in response to the State's motion, the trial judge sentenced

defendant in the extended term under N.J.S.A. 2C:44-3(a), to an aggregate

sentence of life in prison, subject to an eighty-five percent period of parole

ineligibility, under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appealed his convictions and argued his sentence was

excessive. We affirmed, State v. Albut, No. A-3389-11 (App. Div. Apr. 15,

2015); and the Supreme Court denied defendant's petition for certification. State

v. Albut, 222 N.J. 19 (2015).

On October 6, 2015, defendant filed a petition for PCR. In his petition,

defendant argued eight reasons why he received IAC from both his trial and

appellate attorneys. Defendant's petition was considered by the PCR judge on

June 29, 2017. At the conclusion of oral argument, the PCR judge rejected all

but one of defendant's contentions. Specifically, the judge ordered that an

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evidentiary hearing be held on defendant's argument that trial counsel provided

IAC by "fail[ing] to counsel defendant to avoid an extended term of

imprisonment."

The hearing took place over three days in 2018, almost ten years after

defendant's indictment and counsel being assigned to him. At the hearing, each

of the three attorneys that represented defendant before and during his trial and

sentencing testified about whether defendant was informed that if he was

convicted, he would be facing a sentence in the extended term of up to life in

prison, and whether he should accept a plea offer from the State. Although two

of defendant's previous attorneys could not specifically remember having a

conversation with defendant about his possible sentence, they were experienced

attorneys who recalled regularly communicating plea offers and possible

sentencing outcomes with their clients. Defendant's last trial counsel, however,

recalled talking to defendant before trial "about the plea offer" and that he was

"extended term at that point in time."

Defendant also testified about whether he was ever advised of the

possibility of a life sentence and about plea offers that were being discussed.

According to defendant, had he been advised of a possible life sentence, he

would have accepted the plea offer that he understood called for him to plead

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guilty to aggravated manslaughter in exchange for the State recommending a

sentence of twenty-four years subject to NERA. According to defendant, after

the matter was scheduled for trial, and during the days leading up to the trial

date, he was still attempting to negotiate a better plea offer than the twenty-four

years offered by the State. When those efforts proved unsuccessful, he decided

to take his chances on going to trial because he believed he would be facing

thirty years if convicted.

Under cross examination, however, defendant confirmed he understood

that if he went to trial on the murder charges, if convicted, he would face a term

of life imprisonment, and rather than accept a plea offer, he opted to "take the

chance at trial." He also acknowledged that he spoke to his attorneys about the

State's plea offers, and that considering his prior record, he understood before

trial that he was facing a sentence of thirty years to life if he was convicted of

murder. Moreover, he also understood that if he did not accept one of the State's

multiple plea offers, he would have to go to trial. According to defendant, he

rejected the plea offers because he wanted to go to trial.

At the hearing, it was established that a pretrial conference under Rule

3:9-1(f) never occurred and that counsel never submitted a pretrial

memorandum. In considering defendant's argument that he was entitled to relief

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under Rule 3:22-2(a), the PCR judge defined the issue before him as "(1)

whether [defendant]'s right to due process was violated when neither a [p]retrial

[c]onference was held nor a [p]retrial [m]emorandum prepared pursuant to the

Rules; and (2) whether counsel was ineffective for not advising [defendant] of

the potential consequences of a guilty verdict following trial . . . ."

As explained in his thoughtful, comprehensive written decision granting

defendant relief, the PCR judge found that "defendant was not made aware by

the court or counsel that upon the setting of a trial date plea negotiations would

terminate pursuant [to] Rule 3:9-3(g)." According to the PCR judge, this was a

"material element of . . . plea negotiation[s]," and "the failure to explicitly and

timely convey that essential element" could result in a "manifest injustice."

The judge then applied the evidence adduced at the hearing to the two-

prong test for PCR under Strickland v. Washington, 466 U.S. 668 (1984), and

found defendant failed to establish that any of his attorneys' performance of

services on his behalf amounted to IAC. Specifically, as to counsels' discussions

with defendant relating to the State's plea offers and defendant's exposure if he

went to trial, the judge stated the following:

[Defendant] has failed to meet his burden by presenting

no factual evidence for his claim that his attorneys did

not discuss the plea offer or potential sentences [he]

faced at trial. Each trial counsel testified credibly that

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they discussed with all their clients, [defendant]

included, the legal consequences of accepting plea

offers and the risks and exposures by electing to

proceed to trial. This court finds all three attorneys met

with the [defendant] multiple times and followed their

normal practice of discussing the details and

significances of accepting a plea offer as well as the

potential consequences of going to trial, including the

sentencing exposure of life imprisonment upon

conviction.

[(Emphasis added).]

The judge also found that defendant failed to establish the second

Strickland prong because "the impediment" to defendant securing "a plea

bargain . . . to avoid the maximum exposure he faced" was not due to

"counsel[s'] failure to advise as to that maximum exposure and the implications

of rejecting the State's plea offer," rather it was "the court's" fault. For that

reason, the PCR judge concluded defendant was entitled to relief because the

failure to conduct the pretrial conference was a due process violation since the

court never advised defendant in person of the possibility of a sentence to life

in the extended term, and that after the pretrial hearing all plea offers would be

withdrawn.

The PCR judge also found that because "every indication [was] that

[defendant] rejected the State's offer of twenty-four years with the understanding

that his maximum exposure would be thirty years, not life," he ordered that

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defendant be resentenced within the parameters of the plea negotiations and the

maximum ordinary exposure for the offenses for which he was convicted.

Finally, the PCR judge rejected any contention that defendant's application was

procedurally barred because the trial court did not conduct the required pretrial

conference, causing

multiple deficiencies in that the defendant was never

definitively told his final plea offer, was never told

whether or when negotiations had irrevocably ceased,

and never received the mandated benefit of a court

gauging the completeness of his understanding

regarding sentencing exposure under various scenarios

(conviction of [a]ggravated [m]anslaughter versus

[m]urder, e.g.) for the very charges he stood trial. In

other words, there was a complete abdication of

compliance with the five factors set forth under Rule

3:9-l(f).

The judge concluded by stating the following:

Fundamental fairness and due process demand a

defendant be definitively apprised of the State's last

best plea offer, the virtually irrevocable cessation of

plea negotiations and the penal consequences of

rejecting the State's plea in the event of conviction.

These aspects of due process are embodied in Rule 3:9-

1(f) and Rule 3:9-3(g). The function of counsel cannot

supplant the court's ultimate responsibility to convey

these concepts and to determine whether they have been

understood. The trial court's duty in this regard was not

fulfilled. Absent even a preponderance of evidence that

defendant understood these elemental aspects of the

prosecution against him, the original sentence imposed

cannot stand.

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The PCR judge stayed his order in response to "both parties['] . . .

intention to appeal an adverse ruling." Thereafter, we granted the State's motion

for leave to appeal.

In our review, we defer to the PCR judge's findings so long as they are

"supported by sufficient credible evidence in the record." State v. Nash, 212

N.J. 518, 540 (2013). See State v. Elders, 192 N.J. 224, 244 (2007) ("A trial

court's findings should be disturbed only if they are so clearly mistaken 'that the

interests of justice demand intervention and correction.'"). Legal conclusions

which flow from those facts, however, are reviewed de novo. Nash, 212 N.J. at

540-41.

On appeal, the State contends that while the PCR judge correctly

determined that defendant failed to establish IAC as to either trial or appellate

counsel, the judge erred when he concluded "that defendant suffered a due

process violation because the trial [judge] failed to inform defendant of his

extended term exposure in open court and in a pretrial memo in accordance with

[Rule] 3:9-1(f); and because the trial [judge] failed to inform defendant in open

court that 'plea negotiations would cease upon the scheduling of a trial date.'"

We agree.

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At the outset, we disagree with the PCR judge's legal conclusion that

defendant's petition was not procedurally barred by Rule 3:22-4(a)(2) because

defendant failed to raise any argument about the trial judge's failure to hold a

pretrial conference or require the submission of pretrial memorandum before his

conviction or in his direct appeal. The Rule specifically bars any ground for

relief that could have been raised earlier unless one of three exceptions apply:

(1) the issue could not have reasonably been raised, (2) enforcement of the bar

would result in fundamental injustice, or (3) denial of relief would be contrary

to state or federal constitutional mandate. We conclude that none of the

exceptions apply here.

Even if the petition was not barred, we conclude that under the

circumstances presented, where a PCR judge conducts an evidentiary hearing

and finds that counsel properly advised defendant about the consequences of

accepting a plea as compared to going to trial, and that defendant faced a

sentence in the extended term, the trial court's failure to conduct a pretrial

conference under Rule 3:9-1(f) does not justify granting a defendant relief.

Rule 3:9-1(f) provides:

If the court determines . . . that all reasonable efforts to

dispose of the case without trial have been made and it

appears that further negotiations or an additional status

conference will not result in disposition of the case, or

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progress toward disposition of the case, the judge shall

conduct a pretrial conference. The conference shall be

conducted in open court with the prosecutor, defense

counsel and the defendant present. Unless objected to

by a party, the court shall ask the prosecutor to describe,

without prejudice, the case including the salient facts

and anticipated proofs and shall address the defendant

to determine that the defendant understands: (1) the

State's final plea offer, if one exists; (2) the sentencing

exposure for the offenses charged, if convicted; (3) that

ordinarily a negotiated plea should not be accepted after

the pretrial conference and a trial date has been set; (4)

the nature, meaning and consequences of the fact that a

negotiated plea may not be accepted after the pretrial

conference has been conducted and a trial date has been

set and (5) that the defendant has a right to reject the

plea offer and go to trial and that if the defendant goes

to trial the State must prove the case beyond a

reasonable doubt. If the case is not otherwise disposed

of, a pretrial memorandum shall be prepared . . . . The

pretrial memorandum shall be reviewed on the record

with counsel and the defendant present and shall be

signed by the judge . . . .

The pretrial conference under the Rule has a significant impact on further

plea bargaining due to the plea cut-off rule. "After the pretrial conference has

been conducted and a trial date set, the court shall not accept negotiated pleas

absent the approval of the Criminal Presiding Judge based on a material change

of circumstance, or the need to avoid a protracted trial or a manifest injustice."

R. 3:9-3(g). Rule 3:9-1(f) therefore requires the prosecutor to present all plea

offers to defense counsel in writing and the trial judge to ask the prosecutor to

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describe the State's final plea offer as part of the procedure for implementing the

plea cut-off rule.

The Rule also requires a pretrial memorandum setting forth the State's

final plea offer if the case is not disposed of at the pretrial conference. See R.

3:9-1(f). The pretrial memorandum sets forth the pending charges, maximum

possible sentence on each charge, whether defendant qualifies for an extended

term, maximum parole ineligibility period, and the State's final plea offer. The

pretrial memorandum also asks the defendant to confirm his understanding that

"if you reject this plea offer, the [c]ourt could impose a more severe sentence

than recommended by the plea offer, up to the maximum sentence permitted if

you are convicted after trial" and, if he chooses to "reject this plea offer today,

no negotiated plea can be accepted by this [c]ourt unless specifically authorized

by the Criminal Presiding Judge pursuant to [Rule] 3:9-3(g)." Administrative

Directive #5-02, "Pretrial Memorandum (R. 3:9-1); Written Acknowledgment

(R. 3:16)" (Aug. 21, 2002), superseded by Administrative Directive #23-17,

"Pretrial Memorandum and Written Acknowledgment (Notice of Trial)" (Aug.

21, 2017).

Here, the PCR judge found the record contained no indication that the trial

court conducted a pretrial conference or required the submission of a pretrial

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memorandum. Thus, defendant was not advised by a judge in open court of the

State's final plea offer and the consequences of rejecting that offer. We conclude

the evidence supports the judge's finding.

We also agree with the PCR judge that, where neither a court nor counsel

advises a defendant that he is facing a sentence in the extended term if he goes

to trial, "an extended term cannot be imposed unless the defendant is specifically

apprised at the time of the plea of the potential number of years to which he is

exposed." See State v. Cartier, 210 N.J. Super. 379, 381 (App. Div. 1986). "No

matter which way the defendant ultimately chooses to plead, he should know the

risk he faces." State v. Martin, 110 N.J. 10, 19 (1988) (vacating sentence and

remanding for hearing on mandatory extended term sentence); see also Lankford

v. Idaho, 500 U.S. 110, 127 (1991) (holding that due process of law was denied

by the imposition of a death sentence when neither the defendant nor his counsel

had notice of the possibility that such a sentence might be imposed).

For that reason, where a defendant turns down a plea offer without

knowing that he faces sentencing in the extended term, a proper remedy would

be to resentence him in the range contemplated by the last plea offer. That

remedy appears to be "the best accommodation of 'pragmatic necessity' and

'essential fairness.'" State v. Kovack, 91 N.J. 476, 486 (1982).

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We part company with the PCR judge's finding, however, that under the

circumstances of this case, relief was warranted. Here, the judge found that all

of defendant's attorneys had reviewed with defendant the terms of the State's

plea offers and that defendant would be facing a maximum sentence of life in

prison if he was convicted at trial. That finding was supported by trial counsels'

and defendant's testimony at the evidentiary hearing, including his confirmation

that with that knowledge, he rejected plea offers because he wanted to go to trial.

We are satisfied that the concerns about a defendant being properly

informed about plea offers and the consequences of either accepting a plea or

going to trial were adequately addressed by trial counsels' unrefuted

conversations with defendant and that he understood those consequences and

chose to go to trial. We find no support in the record for the PCR judge's

conclusion that defendant maintained a reasonable expectation that if he was

tried, he would only be facing a term of twenty-four or thirty years, especially

in light of the advice about exposure that the PCR judge found defense counsel

had given to defendant before he decided to go to trial.

Finally, contrary to the PCR judge's legal conclusion, we also find no due

process violation with defendant not being told about a plea cut-off date, as it

was undisputed at the hearing that plea negotiations continued right up to the

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days just preceding trial and that those negotiations ended when defendant

rejected the last offer.

Reversed.

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