SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4208-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHARLES H. HOENS, III,

Defendant-Appellant.

________________________________

Argued April 24, 2017 – Decided

Before Judges Sabatino, Currier and Geiger.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Indictment No. 

14-07-0836.

Edward C. Bertucio argued the cause for 

appellant (Hobbie, Corrigan & Bertucio, P.C., 

attorneys; Mr. Bertucio, of counsel and on the 

briefs; Elyse S. Schindel, on the briefs).

Brian D. Gillet, Deputy First Assistant 

Prosecutor, argued the cause for respondent 

(Andrew C. Carey, Middlesex County Prosecutor, 

attorney; David M. Liston, Assistant 

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Charles Hoens, III, appeals the trial court's June 

1, 2016 order denying his post-sentencing motion to withdraw his 

NOT FOR PUBLICATION WITHOUT THE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.

May 4, 2017
2 A-4208-15T1

guilty plea to second-degree theft, N.J.S.A. 2C:20-3, and seconddegree official misconduct, N.J.S.A. 2C:30-2. The thrust of 

defendant's motion is that he should now be permitted to withdraw 

his plea because the two attorneys who successively represented 

him before and during the plea entry and at sentencing were 

ineffective and failed to adequately safeguard his interests in 

the criminal process.

For the reasons that follow, we remand for an evidentiary 

hearing. We do so in light of the discrete allegations presented, 

and the trial court's key assumption, which may have been legally 

mistaken, that defendant could tenably assert in a post-conviction 

relief ("PCR") petition claims of constitutional ineffectiveness 

against his first attorney concerning his representation before 

he was charged or indicted.

I.

Since we are remanding this matter for further factual 

development and legal analysis, we need not present the underlying 

chronology in a comprehensive or conclusive manner. The following 

will suffice for purposes of this opinion.

Defendant was employed by the Fire Commission of South 

Brunswick Township ("the Commission"). In that capacity, he had 

access to the bank account of Fire District Number 3 ("the Fire 

District"). During the relevant timeframe, defendant was 
3 A-4208-15T1

personally experiencing financial difficulties with his private 

business. Due to those difficulties, defendant began periodically 

diverting sums of money from the Fire District's bank account to 

his personal bank account. Defendant alleges that he intended to 

repay the diverted amounts once his financial situation 

stabilized.

Recognizing that the Commission is a public entity subject 

to audit, and that an upcoming audit would inevitably reveal his 

diversion of funds, defendant retained the services of a private 

criminal defense attorney ("the first attorney"). According to 

the affidavit defendant submitted in support of his plea withdrawal 

motion, defendant admitted to his first attorney that he had 

diverted what he estimated to be approximately $90,000 from the 

Fire District's bank account. Allegedly hoping to make 

restitution, defendant provided the first attorney with $90,000 

out of funds that defendant had recently inherited. The first 

attorney deposited the $90,000 into an escrow account.

According to defendant's affidavit, his first attorney 

advised him that he "should go to the Middlesex County Prosecutor's 

Office and made a statement[,]" even though, as defendant contends, 

the Prosecutor's Office "had no information about this matter and 

had not begun an investigation against [him]." Defendant further 

attested that his first attorney "also indicated that he would 
4 A-4208-15T1

negotiate a plea deal with the State that would involve no jail 

time and would include payment of $90,000 as full restitution in 

this matter[.]"

The first attorney arranged a meeting with the Prosecutor's 

office, to which he accompanied defendant. The meeting occurred 

on December 19, 2012. At that session, defendant was given 

Miranda1 warnings, waived his right to remain silent, and was then 

questioned by an investigator during a video-recorded interview. 

During that interview, which was later transcribed and made part 

of the present record, defendant admitted that he had diverted 

funds from the Fire District's bank accounts at various times in 

2011 and 2012. He also agreed to make restitution and resign as 

a fire commissioner.

According to defendant's affidavit, his first attorney "did 

no prior investigation and did not obtain a formal written 

negotiation as to the State's intention with regard to 

[defendant's] statement." The attorney also allegedly "never did 

any subsequent follow up investigation after [defendant's]

statement was given."

More specifically, defendant contends:

The only information I received [from his 

first attorney] was a reassurance that there 

 

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

694 (1966). 
5 A-4208-15T1

was a "gentlemen's agreement" and that the 

deal between the State and myself would be to 

plead guilty to third degree theft in exchange 

for a sentence of straight, non-custodial

probation without jail time and to pay $90,000 

in restitution and move on with my life 

. . . . With that understanding in mind, and 

because that information had been represented 

to me, I made [my] statement to the Middlesex 

County Prosecutor's Office.

The State denies, however, the existence of any such unwritten 

"gentlemen's agreement." In this regard, the State points out 

that at the conclusion of defendant's recorded interview, the 

investigator warned him that there would be consequences for the 

actions to which defendant had confessed and that the investigator 

would be forwarding the information to his superiors. The 

investigator added "I can't promise you anything. I don't know 

where they're going to go with this." The transcript reflects 

that defendant and his first attorney were both given the 

opportunity to put "anything else on the record" before the 

recording ended, and they did not do so. On December 19, 2013, 

the Prosecutor's Office issued a criminal complaint against 

defendant, charging him with second-degree theft in a cumulative 

sum of $695,795.46.

Before defendant was indicted by a grand jury, the first 

attorney moved to be relieved as counsel for reasons of non-payment 

of fees. In his supporting certification, the first attorney 
6 A-4208-15T1

stated that the retainer defendant had paid to the attorney's law 

firm "was set to address only representation during the [matter's] 

investigative phase, and did not contemplate representation once 

adversarial proceedings commenced." The certification further 

added that defendant's written retainer agreement was "limited to 

the Investigation[,]" and that the retainer had been exhausted 

since the time the criminal charges were filed. Counsel also 

referred to the $90,000 in the firm's escrow account, and the 

court's oral direction to not dispense those funds without leave 

of court. The trial court granted the first attorney's motion to 

be relieved.

Meanwhile, on May 29, 2014, a grand jury issued a five-count 

indictment against defendant, charging him with one count of 

second-degree theft, N.J.S.A. 2C:20-3 (Count 1); two counts of 

first-degree financial facilitation of criminal activity, N.J.S.A.

2C:21-25 (Counts 2 and 3); one count of second-degree official 

misconduct, N.J.S.A. 2C:30-2 (Count 4); and one count of thirddegree pattern of official misconduct, N.J.S.A. 2C:30-7 (Count 5).

Defendant then requested representation from the Office of the 

Public Defender. A trial attorney ("the second attorney") was 

assigned to represent him.

Plea negotiations ensued, resulting in a written agreement 

between defendant and the State dated November 10, 2014. The 
7 A-4208-15T1

agreement provided that defendant would plead guilty to counts one 

(second-degree theft) and four (second-degree official 

misconduct), and the other three counts of the indictment would 

be dismissed. The State agreed to recommend at sentencing that 

defendant receive a ten-year custodial term, with a five-year 

period of parole ineligibility, with defendant having the right 

to argue for a shorter term of five years. Defendant also agreed 

to execute a consent judgment at sentencing to be liable for 

restitution in the recalculated sum of $736,847.75.

Defendant appeared before the trial court on November 10, 

2014, at which time his guilty plea was placed on the record. 

During extensive questioning at that plea hearing, defendant, who 

is a businessman with advanced degrees, repeatedly acknowledged 

that he understood the terms of the plea agreement and was entering 

into it voluntarily. 

About six months later, defendant appeared before a different 

judge for sentencing. As permitted by the plea agreement, the 

court sentenced defendant to five years in prison (less than the 

ten years advocated by the State) with a five-year parole 

ineligibility period. In addition, defendant was ordered to make 

restitution in the sum of $736,847.75, reflected on the consent 

judgment. Defendant was also ordered to pay customary fines and 
8 A-4208-15T1

penalties, and was permanently disqualified from holding any 

public office in this State in the future. 

Defendant did not appeal his sentence. Instead, he retained 

new private counsel and filed the instant motion to withdraw his 

guilty plea pursuant to Rules 3:9-2 and 3:9-3 and the withdrawal 

factors of State v. Slater, 198 N.J. 145 (2009). As a critical 

part of his arguments, defendant asserted that his first attorney 

and his second attorney were each, for different reasons, 

ineffective and violated his federal and state constitutional 

rights under the precepts of Strickland v. Washington, 466 U.S.

668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984) and 

State v. Fritz, 105 N.J. 42 (1987).

As to his first attorney, defendant argued that the attorney 

was deficient in allowing him to make incriminating statements in 

a recorded interview with the Prosecutor's Office without a written 

agreement specifying how that statement could be used, and by 

instead advising defendant that he was protected by an unwritten 

alleged "gentlemen's agreement." As to the second attorney, 

defendant contends that the attorney coerced him into accepting 

the terms of the plea negotiation, and also failed to argue at 

sentencing that defendant should receive a sentence one degree 

lower, as permitted in appropriate situations by State v. Rice, 

425 N.J. Super. 375 (App. Div. 2012).
9 A-4208-15T1

After considering these arguments and the State's opposition, 

the motion judge (who had also been the sentencing judge in this 

case2) denied defendant's motion without an evidentiary hearing. 

The judge concluded that defendant had not shown a basis for relief 

under the four criteria of Slater, supra. In addition, the judge 

noted in his May 19, 2016 oral ruling that defendant could pursue 

relief in a future PCR proceeding in which matters outside the 

existing record could be developed. The judge further noted that, 

to the extent defendant argued that the amount of court-ordered 

restitution was excessive, defendant was free to file a motion to 

seek to have the sum recalculated and an ability-to-pay hearing.

The court memorialized that right in its written corresponding 

order, allowing defendant to submit his calculations as to the 

proper amount of restitution to the prosecutor's office and that 

if the prosecutor disagreed with these figures, defendant could 

request a hearing on the issue.

II.

This appeal ensued. Defendant presents the following 

arguments for our consideration:

THE TRIAL COURT ERRED IN DENYING APPELLANT'S 

MOTION TO WITHDRAW HIS GUILTY PLEA PURSUANT 

TO STATE V. SLATER AND STRICKLAND V. 

WASHINGTON. APPELLANT ENTERED A GUILTY PLEA 

 

2 Both the plea judge and the sentencing/motion judge are now 

retired.
10 A-4208-15T1

INVOLUNTARILY AND AS THE RESULT OF THE 

INEFFECTIVE ASSISTANCE OF COUNSEL OF HIS TWO 

PRIOR ATTORNEYS.

A. THE TRIAL COURT ERRED IN DENYING 

APPELLANT'S MOTION TO WITHDRAW THE GUILTY PLEA 

PURSUANT TO STATE V. SLATER.

B. THE TRIAL COURT ERRED IN DENYING 

APPELLANT'S MOTION TO WITHDRAW THE GUILTY PLEA 

PURSUANT STRICKLAND V. WASHINGTON.

 The parties agree that defendant's motion to withdraw must 

be evaluated under the four factors set forth by the Supreme Court 

in Slater, supra. Those factors are:

(1) whether the defendant has asserted a 

colorable claim of innocence; (2) the nature 

and strength of defendant’s reasons for 

withdrawal; (3) the existence of a plea 

bargain; and (4) whether withdrawal would 

result in unfair prejudice to the State or 

unfair advantage to the accused.

[Id. at 157-58]. 

None of these factors, including a colorable claim of innocence, 

is required or dispositive. Id. at 162; see also State v. Munroe, 

210 N.J. 429, 442-43 (2012). As defendant acknowledges, the burden 

of justifying a requested withdrawal is heavier where, as here, 

the motion to withdraw is made after, rather than before,

sentencing. Slater, supra, 198 N.J. at 160; see also Munroe, 

supra, 210 N.J. at 442-43. Generally, the decision on whether to 

grant or deny a motion to withdraw a plea rests in the "sound 
11 A-4208-15T1

discretion" of the trial court. Munroe, supra, 210 N.J. at 442; 

see also Slater, supra, 198 N.J. at 156.

We agree with the trial court that the first Slater factor 

of "colorable claim of innocence" tips against defendant here. 

Defendant concedes that he repeatedly diverted funds from the fire 

district. The only caveat he alleges is that his state of mind 

in doing so was not sufficiently venal to satisfy the theft and 

official misconduct statutes beyond a reasonable doubt. He also 

contests the quantification of the amount diverted, although he 

has not yet offered a competing calculation.

The third and fourth factors do not manifestly weigh in 

defendant's favor. As to the third factor, defendant's guilty 

plea was entered pursuant to a negotiated agreement, although that 

is the factor that "receives the least weight in the overall 

analysis[.]" Munroe, supra, 210 N.J. at 443. As to the fourth 

factor, the State surely will sustain some prejudice if the plea 

were withdrawn post-sentencing, although we presume that the 

documentation of the financial accounts still exists and that 

defendant's incriminatory recorded statement remains preserved in 

audio form.

The critical questions posed here arise under the second 

Slater factor, i.e., "the nature and strength of defendant's 

reasons for withdrawal." Slater, supra, 198 N.J. at 159. In his 
12 A-4208-15T1

motion affidavit, defendant has detailed several reasons why his 

first attorney was allegedly deficient in arranging the taped 

interview with the Prosecutor's Office without any formal written 

agreement to address the future uses of that recording. His 

assertion that his first attorney advised him of a so-called 

"gentlemen's agreement" limiting his criminal exposure is 

presently unrefuted, at least as to the alleged advice itself. We 

simply do not know what the first attorney would have to say on 

the subject and what, if any, documentation exists in the first 

attorney's files that might refute defendant's sworn assertion 

about what he was told.

Analysis of the second factor becomes more problematic 

because the trial court may have been under a possibly mistaken 

assumption that defendant could have, at least as a matter of law, 

pursued claims of ineffectiveness against his first attorney for 

allegedly deficient representation occurring before he was ever 

charged. As the State points out in its brief, the constitutional 

right to representation generally is not triggered until a criminal 

defendant is formally charged. See Kirby v. Illinois, 406 U.S.

682, 688-89, 92 S. Ct. 1877, 1881-82, 32 L. Ed. 2d 411, 417 (1972); 

State v. Sanchez, 129 N.J. 261, 265 (1992). In a case we found 

and provided to counsel before oral argument, the Second Circuit 

Court of Appeals in Claudio v. Scully, 982 F.2d 798, 802 (2d Cir. 
13 A-4208-15T1

1992), held that there is no constitutional right under the Sixth 

Amendment to a defendant for allegedly deficient representation 

by a criminal defense attorney who took his client to police for 

questioning before charges were ever filed against that defendant.

Our New Jersey courts have yet to address the specific issue 

posed in Claudio. At a minimum, without deciding that legal issue 

on appeal at this time, there appears to be substantial doubt that 

claims of ineffectiveness are viable for missteps by defense 

counsel before charges are ever filed. The motion judge thus may 

have incorrectly presumed that PCR is a viable option for 

defendant, at least with respect to the first attorney. Although 

the motion judge's remarks on the record about PCR may have solely 

concerned the second attorney, whose representation was postindictment, we cannot be confident that the motion judge implicitly 

assumed that PCR was available to raise ineffectiveness claims 

concerning both attorneys. See State v. Brito, 345 N.J. Super.

228, 230 (App. Div. 2001) (remanding a case where the trial court 

"operat[ed] under a misapprehension as to the nature of the 

proceedings before it").

Under these discrete circumstances, we deem it preferable for 

this matter to be remanded for the trial court to conduct an 

evidentiary hearing to explore the pertinent factual issues in 

more depth, including taking testimony from defendant and, if 
14 A-4208-15T1

feasible, his two prior counsel, and considering any relevant 

documents from their prior representation addressing the 

assertions made in defendant's affidavit. The trial court shall 

then reevaluate the Slater factors, particularly under the second 

prong. Although the focus of our concerns relates mainly with the 

first attorney, we decline to address the second attorney's conduct 

at this time and instead defer that to the overall mix of 

considerations on remand. The trial court shall also consider, 

in the first instance, the constitutional issues posed, to the 

extent the court finds it necessary to reach them in its analysis.

Remanded for further proceedings consistent with this 

opinion. We do not retain jurisdiction.