SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2868-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALLAN O. PELCAK, JR.,

Defendant-Appellant.

______________________________

Submitted September 24, 2018 – Decided

Before Judges Sabatino and Sumners.

On appeal from Superior Court of New Jersey, Law 

Division, Bergen County, Accusation Nos. 11-02-0212 

and 11-02-0213.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Brian D. Driscoll, Designated Counsel, on 

the brief).

Dennis Calo, Acting Bergen County Prosecutor, 

attorney for respondent (Jenny X. Zhang, Special 

Deputy Attorney General/Acting Assistant Prosecutor, 

of counsel and 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NOT FOR PUBLICATION WITHOUT THE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.

October 31, 2018
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Defendant Allan O. Pelcak, Jr. appeals the denial of his post-conviction 

relief (PCR) petition without an evidentiary hearing. He contends:

POINT I:

THE COURT ERRED IN FINDING THAT 

COUNSEL'S ACTIONS IN HAVING THE 

PSYCHIATRIC REPORT ALTERED DID NOT 

CONSTITUTE DEFICIENT PERFORMANCE. 

POINT II:

THE COURT ERRED IN FINDING THE CLAIM OF 

INSUFFICIENT FACTUAL BASIS FOR THE PLEAS 

BARRED BY RULE 3:22-4. 

POINT III:

THE COURT ERRED IN DENYING THE CLAIM OF 

INSUFFICIENT FACTUAL BASIS ON THE 

MERITS. 

POINT IV:

THE COURT FAILED TO ADDRESS THE CLAIM 

OF INEFFECTIVE ASSISTANCE OF COUNSEL AT 

SENTENCING. 

POINT V:

THE APPELLATE DIVISION'S ORDER OF 

REMAND FOR RESENTENCING WAS NOT 

PROPERLY ADDRESSED BY THE TRIAL COURT. 
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Having considered these arguments and the applicable law, we affirm in part, 

and reverse in part and remand for an evidentiary hearing. 

In September 2009, defendant was driving on Route 17 in Mahwah when 

he saw his ex-wife drive past him. Believing that she was on her way to meet 

with a co-worker to carpool to work, he drove to their meeting place at a hotel 

parking lot to confront her about certain legal documents that she sent him 

earlier that week. Upon arriving at the parking lot, defendant got out of his 

sports utility vehicle and approached her with a sharp letter opener in his hand. 

He then repeatedly stabbed her with enough force to knock her down. After she 

regained her footing and called out for help, he got back in his vehicle and drove 

directly into her. He drove away to Lyndhurst, where he abandoned his vehicle. 

Defendant was subsequently arrested and charged with first-degree attempted 

murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3, and third-degree hindering 

apprehension, N.J.S.A. 2C:29-3(b)(1). 

Over a year later, defendant, while being held at the Bergen County jail in 

November 2010, was charged with third-degree aggravated assault on a county 

corrections officer, N.J.S.A. 2C:12-1(b)(5)(h). The officer suffered broken ribs

and a concussion. 
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In accordance with a negotiated plea agreement, defendant pled guilty in 

February 2011, to first-degree attempted murder, third-degree hindering 

apprehension, and assault on a corrections officer. The State agreed to 

recommend that defendant be sentenced to an aggregate fourteen-year NERA,

N.J.S.A. 2C:43-7.2, prison term. 

During the plea colloquy, prior to defendant stating that he understood the 

charges and entering his pleas, his counsel advised the judge that defendant was 

competent to stand trial based upon a psychiatric examination performed by the 

defense's psychiatric expert witness. When defendant indicated he was unsure 

why the doctor came to see him, counsel explained that it was necessary to assess 

his competency to stand trial. 

During defendant's plea to the charge of assaulting a corrections officer,

the judge had some concerns when defendant asked her whether he could be 

found guilty if he thought the officer was "a demon" who was trying to kill him. 

This caused the judge to ask him a series of questions, and after being satisfied 

that he knew he was assaulting a corrections officer, the judge stated:

So if you're going to go with the route that he's a demon, 

then I can't accept the factual basis. And if you're going 

to go the route that he's a correction[s] officer, then I 

can accept the factual basis. So the question is what 

was he on November 28th of 2010? 
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Defendant responded stating, "[h]e was a correction[s] officer." The judge 

found that a factual basis for the aggravated assault of the corrections officer 

was satisfied. The judge then asked defendant a series of questions regarding 

the plea agreement, which led her to find that he was satisfied with his counsel's 

services and that his pleas were entered into voluntarily without being forced, 

threatened, or promised anything in return. 

Following defendant's plea, the expert issued a report to counsel stating:

At the time of the alleged offen[se] [against his ex-wife, 

defendant] suffered from diminished capacity. With 

respect to the alleged offen[se] [against the corrections 

officer], he was mentally insane and not criminally 

responsible for his actions.

Yet, prior to defendant's sentencing, counsel wrote to the expert:

Your psychiatric report of [defendant] of March 12, 

2011 was excellent. However, [he] has already pleaded 

guilty to the charge of attacking the correction[s]

officer at the Bergen County Jail and the sentencing 

judge therefore will not sentence him if he was 

"mentally insane and not criminally responsible" for his 

actions as stated in your report. Please be kind enough 

to change your conclusion so that it is consistent with 

the legal language I sent you on March 14, 2011 as 

attached hereto. Specifically, [defendant] suffered "a 

severe diminution of mental capacity for the assault on 

the officer." 
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The expert complied with the request and changed his report to read that as to 

the assault on the corrections officer, defendant "had a severe diminution of 

mental capacity." 

Defendant was sentenced to an aggregate fourteen-year NERA prison term

in accordance with the plea agreement. On both accusations, the judge applied 

aggravating factors: one, the nature and circumstances of the offense, including 

whether it was committed in an especially heinous, cruel, or depraved manner,

N.J.S.A. 2C:44-1(a)(1); three, the risk to commit another offense, N.J.S.A. 

2C:44-1(a)(3); and nine, the need to deter, N.J.S.A. 2C:44 -1(a)(9). Although 

the judge applied mitigating factor seven, no prior criminal history, N.J.S.A. 

2C:44-1(b)(7), the Judgement of Convictions (JOCs) noted "[d]efendant has 

prior history of domestic violence [and] violation of restraining orders."

Thereafter, defendant did not appeal his conviction, but appealed his 

sentence as excessive. An excessive sentencing panel of this court remanded 

the matter for resentencing because of concerns that there were no certified 

records confirming the JOCs' reference to defendant's history of violating 

restraining orders. Thus, the State was ordered to obtain the records of those 

orders and consider them at defendant's resentencing. 
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At resentencing, the judge was advised defendant had a history of 

domestic violence from Rockland County in New York State prior to the 

attempted murder of his ex-wife, but there was no record that he was convicted 

of violating any domestic violence restraining orders. The judge amended the 

JOC only for the attempted murder and hindering offenses to read: “[t]he 

defendant has no history of prior indictable criminal convictions[.] Defendant 

has a prior history of a domestic violence violation of restraining order of a 

Rockland County restraining order based on the State's investigation and 

included in defendant's discovery." She did not alter defendant's sentences on 

the convictions.

Almost a year later, defendant filed a PCR petition in August 2015. He 

alleged that he received ineffective assistance because trial counsel: failed to 

insure that he provided a factual basis to his first-degree attempted murder plea; 

failed to honor his request to appeal his convictions; and improperly directed the 

expert to alter his original report for sentencing, from indicating defendant was 

"mentally insane and not criminally responsible for" assaulting the corrections 

officer to indicating "a severe diminution of mental capacity for the assault." 

Explaining her reasoning in a written decision, the PCR judge denied 

defendant's petition without an evidentiary hearing on the basis that he did not 
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establish a prima facie case of ineffective assistance of counsel. She found his 

claim that he did not provide sufficient factual basis for his plea agreement was 

procedurally barred under Rule 3:22-4 because it should have been raised on 

direct appeal. As to the claim's merits, the judge determined it was lacking based 

on her finding that the trial judge "extensively questioned" defendant during the 

plea to insure that he "was entering his plea freely and voluntarily." 

As for counsel's request to the expert to change his report, the PCR judge 

presumed the changed report was submitted at sentencing to argue "defendant's 

diminished capacity warranted a lesser sentence, without enucleating the plea 

agreement that the defendant had already accepted." The judge was "troubled 

by trial counsel's suggested alteration of the report[]" and was "sensitive to 

defendant's concern[s]," but found counsel's performance was not "deficient 

under prevailing norms." She reasoned counsel's action was not objectively 

deficient under Strickland1 because he "successfully negotiated a global 

resolution for three accusations against . . . defendant which resulted in an 

aggregate sentence of fourteen years . . . on first[-]degree attempted murder 

charge, and concurrent four-year terms of imprisonment on the remaining two 

[third-degree] counts." 

 

1 Strickland v. Washington, 466 U.S. 668, 687 (1984).
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The judge further found that the altered report did not prejudice defendant 

under Strickland because it only effected the aggravated assault of the 

corrections officer charge for which he received a flat four-year term that ran 

concurrent with the two offenses against his ex-wife. She reasoned that had 

defendant sought to employ an insanity defense concerning the charge of

aggravated assault against a corrections officer based upon the expert's initial 

report, "his aggregate sentence would not have been affected," because he 

received a four-year concurrent sentence for the offense. She further added in a 

footnote that the State would have rebutted the defense with its own expert, 

thereby "exposing him to a substantially longer period of incarceration" if his 

defense was rejected by the trier of fact. 

We look to the principles governing our review. To demonstrate 

ineffective assistance of counsel, a defendant must satisfy the two-part 

Strickland test by demonstrating that "counsel's performance was deficient," that 

is, "that counsel made errors so serious that counsel was not functioning as the 

'counsel' guaranteed the defendant by the Sixth Amendment," and "there is a 

reasonable probability that, but for counsel's unprofessional errors, the result of 

the proceeding would have been different." Strickland, 466 U.S. at 687, 694; 

accord State v. Fritz, 105 N.J. 42, 58 (1987). 
10 A-2868-16T4

A court reviewing a PCR petition based on claims of ineffective assistance 

has the discretion to grant an evidentiary hearing if a defendant establishes a 

prima facie showing in support of the requested relief. State v. Preciose, 129 

N.J. 451, 462 (1992). The mere raising of a claim for PCR does not entitle a 

defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 

170 (App. Div. 1999). The court should only conduct a hearing if there are 

disputed issues as to material facts regarding entitlement to PCR that cannot be 

resolved based on the existing record. State v. Porter, 216 N.J. 343, 354 (2013). 

In cases where the PCR judge does not conduct an evidentiary hearing, 

we review the judge's determinations de novo. State v. Jackson, 454 N.J. Super. 

284, 291 (App. Div. 2018) (citation omitted). A PCR petitioner carries the 

burden to establish the grounds for relief by a preponderance of the credible 

evidence. State v. Goodwin, 173 N.J. 583, 593 (2002) (citations omitted). 

We first address the PCR judge's determination that defendant's 

contention that counsel failed to insure that he provide a sufficient factual basis 

for his plea agreement was procedurally barred under Rule 3:22-4 because it 

should have been raised on direct appeal. Other than for enumerated exceptions, 

Rule 3:22-4 bars a defendant from employing post-conviction relief to assert a 
11 A-2868-16T4

claim that could have been raised at trial or on direct appeal. See State v. Nash, 

212 N.J. 518, 546 (2013). 

In this case, defendant should have raised the issue of his factual basis for 

his plea agreement on direct appeal. However, he did not do so. Defendant's 

appeal was limited to his claim that he received an excessive sentence. We 

therefore agree with the PCR judge that this legal argument is procedurally 

barred by Rule 3:22-4(a). Nonetheless, we will address the merits of defendant's 

claim of ineffective assistance of counsel, as did the judge, because Rule 3:22-

4(a)(2) contains an express exception for claims of ineffective assistance of 

counsel where that enforcement of the bar to preclude claims would result in 

fundamental injustice. 

Based upon our review of the record, defendant provided a sufficient 

factual basis during his colloquy for the pled to offenses. For instance, to 

establish the specific intent needed for attempted murder, defendant responded 

"yes" when counsel asked him: "[b]ut you knew that as a result of stabbing her 

with the letter opener, as a result of hitting her, that it could be murder, it could 

result in her death. You understood that, did you not, and you so indicated to 

me?" We thus agree with the judge that a factual basis for the attempted murder 

was satisfied. 
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With respect to assaulting the corrections officer, defendant admitted in 

his plea colloquy to understanding the charge, and that he committed this crime 

knowingly, purposely, or recklessly to cause bodily injury to the corrections 

officer. After defendant asked the judge whether he would be found guilty if he 

thought the corrections officer was trying to kill him, she asked a series of 

questions to determine whether defendant knew that he was assaulting a 

corrections officer. At the end of the questioning, defendant confirmed that he 

knew he assaulted a corrections officer. 

The judge then addressed the issue of defendant believing the corrections 

officer was a demon. The judge asked defendant:

So if you're going to go with the route that he's a demon, 

then I can't accept the factual basis. And if you're going 

to go the route that he's a correction[s] officer, then I 

can accept the factual basis. So the question is what 

was he on November 28th of 2010? 

Defendant responded by stating "he was a correction[s] officer." Thus, we agree 

with the PCR judge that a factual basis for the aggravated assault of the 

corrections officer was satisfied. 

We next address defendant's contention that counsel was also ineffective 

during sentencing. He argues: "[C]ounsel inexplicably spoke in a prosecutorial 

fashion against [him]. He spoke at length about the horrible acts committed, 
13 A-2868-16T4

while making absolutely no argument in mitigation." Although this contention 

was not addressed during the PCR oral argument, it was raised in defendant's

PCR brief. The judge, however, was remiss in addressing her written opinion 

explaining the denial of PCR. 

Rule 3:22-11 requires that the judge to "state separately [her] findings of 

fact and conclusions of law." See also R. 1:7-4 ("[t]he court shall, by an opinion 

or memorandum decision, either written or oral, find the facts and state its 

conclusions of law thereon in all actions tried without a jury. . ."). Rather than 

remanding this particular issue, we exercise our discretion to take original 

jurisdiction under Rule 2:10-5 because the record allows us make fact-finding 

decisions free of doubt. Tomaino v. Burman, 364 N.J. Super. 224, 234-35 (App. 

Div. 2003). 

During sentencing, counsel unceasingly argued for a sentence less than 

the agreed upon fourteen years. He described defendant as a "considerate and 

kind individual who has a love of his two children, who helped people, who 

worked hard, who tried to better his life." Counsel proposed that the court 

consider defendant's mental state and the "turmoil, the agony, the distress" that 

surrounded his marriage to the victim. He even asked the judge not to deprive 

defendant completely of ever being a father. He argued mitigating factors that 
14 A-2868-16T4

should weigh in defendant's favor, such as his mental condition, the fact that he 

has no prior record, and his excellent family background. Given the global 

negotiated plea agreement of an aggregate fourteen-year prison term for the

charges of attempted murder, hindering apprehension, and assault of a 

corrections officer – which clearly could have resulted in a much longer term 

based on consecutive sentences – we do not perceive any ineffective assistance 

by counsel at sentencing.

We, however, do not reach the same conclusion regarding counsel's 

directing the expert to alter his psychiatric report about defendant. For the 

following reasons, we remand for an evidentiary hearing because the directive 

constitutes a prima facie case of ineffective assistance. 

Defendant contends the alteration constitutes ineffective assistance 

because the doctor's original assessment that he "was mentally insane and not 

criminally responsible for his actions" against the corrections officer was a 

possible affirmative defense to the accusation. By directing the doctor to change 

the phrase to state that defendant suffered "a severe diminution of mental 

capacity," defendant contends he was prejudiced by not being able to present the 

defense. Defendant further asserts that he was prejudiced because if he persisted 

and demanded a trial, it would have made it impossible to use the expert as a 
15 A-2868-16T4

witness, having been completely discredited by his alteration of the report. The 

State contends the judge's reasoning was a proper application of the Strickland

factors. 

We conclude defendant has established on this discrete issue, a prima facie 

case of ineffective assistance of counsel under Strickland. Absent some 

reasonable explanation that might be provided at an evidentiary hearing, we see 

no reason why counsel would have the expert amend his report by removing 

language that could potentially support an affirmative defense of insanity to the 

aggravated assault charge on the corrections officer. While we are in no position 

based on the record before us as to assess the viability of an insanity defense,

the expert's original report warrants a prima facie finding that counsel should 

not have requested it to be altered because it eliminated an expert opinion 

supporting such a defense. 

We glean further fault with the PCR judge's finding that defendant was 

not prejudiced by counsel's action. The judge determined that since the insanity 

defense only applied to the corrections officer incident, it did not affect the 

conviction or fourteen-year concurrent sentence for defendant's attack on his exwife. This reasoning fails to recognize that defendant might not have pled guilty 

to aggravated assault on the corrections officer if the expert's initial opinion that 
16 A-2868-16T4

he "was mentally insane and not criminally responsible for his actions" was 

pursued in plea negotiations. 

We are certainly mindful that trial counsel generally works closely with a 

retained expert to present a report that expresses opinions consistent with the 

law and the facts to further a specific litigation strategy. However, by having 

an expert alter an opinion that might provide a defense to a crime, as is the case 

here, counsel may have crossed the line of effective assistance and prejudiced

the client. Hence, on remand, it is necessary to find why defendant's counsel 

thought it was in defendant's overall best interests to have the expert alter the 

original report. 

Affirmed in part, reversed in part and remanded for an evidentiary 

hearing. We do not retain jurisdiction.