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
- 0 836. Edward C. Bertucio argued the cause for appellant (Hobbie, Corrigan & Bertucio, P.C., attorneys; Mr. Bertucio, of counsel and on the brie fs; 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 C URIAM 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- sentencing motion to withdraw his NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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, 20172 A - 4208
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guilty plea to second
- degree theft, N.J.S.A. 2C:20
- 3, and second
degree 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 i n 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 a ssert in a post
- conviction relief ("PCR") petition claims of constitutional ineffectiveness against his first attorney concerning his representation before
h e was charged or indicted.
I. Since we are remanding this matter for further factual development a nd 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 was3 A - 4208
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personally experiencing financial difficulties with his private business. Due to t hose difficulties, def endant 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 C ounty 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 "als o indicated that he would4 A - 4208
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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 acco mpanied defendant. The meeting occurred on December 19, 2012. At that session, defendant was given Miranda 1 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
fun ds from the Fire District's bank accounts a t 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 for mal written negotiation as to the State's intention with regard to [defendan t's] statement." The attorney also allegedly "never did any subsequent follow up investigation after [defendant's] statement was given." More specifically, defendant contends:
Th e 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
- cus todial 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 Prosecuto r'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 consequence s 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 re flects 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
defenda nt, 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 attorney6 A - 4208
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stated that the retainer defendant had paid to the attorney's law firm "was set to address only representation during the [matter's] investigative ph ase, and did not contemplate representation once adversarial proceedings commenced." The certifi cation 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 accou nt, 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 third
degree 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 negoti ations ensued, resulting in a written agreement between defendant and the State dated November 10, 2014. The7 A - 4208
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agreement provided that defendant would plead guilty to counts one (seco nd
- degree theft) and four (second
- degree official misconduct), and the oth er 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 ter m of five years. Defendant also agreed to execute a consent judgment at sentencing to be liable for restitution in the r ecalculated sum of $736,847.75. Defendant appeared before the trial court on November 10,
2014 , at which time his guilty plea was plac ed 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. I n 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 and8 A - 4208
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penalties, and was permanently disqualified from holding any public office in this St ate 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 (20 09). 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. Washing ton , 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 i nterview 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 co ntends 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
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After considering these arguments and the State's opposition, the motion judge (who had also been the sentencing judge in this

case 2 ) 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 develo ped. 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 t hat 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 appea l ensu ed. 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 reason s for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unf air prejudice to the State or unfair advantage to the accused. [ Id. at 157
- 58]. None of these factors, including a colorable claim of innocence , i s required or dispositive. Id. at 162; see also State v. Munroe , 210 N.J. 429, 442
- 43 (2012). As defendan t 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 de cision on whether to grant or deny a motion to withdraw a plea rests in the "sound11 A - 4208
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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 "col orable 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 offi cial 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 weigh t in the overall analysis [ . ] " Munroe , supra , 210 N.J. at 443. As to the fourth factor, the State surely will sustain some preju dice 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 statem ent remain s 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 1 59. In his12 A - 4208
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motion affidavit, defendant has de tailed 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 ad vised 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, documentatio n 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 c ould have , at least as a matter of law,
pursue d 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 representat ion generally is not trigger ed 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
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1992), held that there is no constitutional right under the Sixth Amendment to a defendant for allegedly deficient representation by a cr iminal 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
defend ant, 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 post
indictment, we cannot be confident that the motion judge implicitly assumed that PCR was available to raise ineffectiveness cl aims 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
pro ceedings 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 pertine nt factual issues in more depth, including taking testimony from def endant and, if14 A - 4208
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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 th e 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.