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

NOT FOR PUBLICATION WITHOUT THE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.
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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 twoprong 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 
11 A-2867-18T4

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 
12 A-2867-18T4

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 
13 A-2867-18T4

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).
14 A-2867-18T4

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 
15 A-2867-18T4

days just preceding trial and that those negotiations ended when defendant 

rejected the last offer. 

Reversed.