SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4729-16T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSHUA McFARLAND,

Defendant-Appellant.

____________________________

Submitted December 4, 2018 – Decided

Before Judges Fisher and Firko.

On appeal from Superior Court of New Jersey, Law 

Division, Burlington County, Indictment No. 14-11-

1172.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Mark Zavotsky, Designated Counsel, on the 

brief).

Scott A. Coffina, Burlington County Prosecutor, 

attorney for respondent (Jennifer B. Paszkiewicz, 

Assistant Prosecutor, of counsel and on the brief; Linda 

Rinaldi, Legal Assistant, on the brief).

Appellant filed a pro se supplemental brief.

NOT FOR PUBLICATION WITHOUT THE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.

December 12, 2018
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PER CURIAM

At a shopping center in Evesham Township in August 2014, defendant 

knocked down a seventy-five-year-old woman – causing her to suffer a broken 

hip, a broken arm, and internal bleeding – while stealing her purse. Defendant 

fled the scene but was eventually identified when arrested for a similar crime in 

another county the next month. He was charged with first-degree robbery, 

second-degree aggravated assault, and fourth-degree theft. Pursuant to a 

negotiated agreement, defendant pleaded guilty to first-degree robbery and was

sentenced to an eleven-and-one-half-year prison term subject to an eighty-five 

percent period of parole ineligibility.

Defendant appealed, arguing the sentence was excessive. We rejected that 

argument and affirmed. State v. McFarland, No. A-0360-15 (App. Div. Mar. 9, 

2016). Defendant then filed a timely post-conviction relief (PCR) petition that 

was denied on June 7, 2017.

Defendant now appeals the denial of his PCR petition, arguing the judge 

erred in denying relief and in failing to provide an evidentiary hearing; he claims 

his attorney was ineffective for: (1) "laboring under a conflict of interest"; (2) 

"misinforming [him] about the exposure he would face at sentencing [because 

of] a prior conviction"; and (3) "failing [to] adequately argue [his] motion to 
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suppress his statement to police and . . . failing to enter [into evidence] the video 

relied upon in the judge's decision."

We find insufficient merit in the second and third arguments to warrant 

further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only that 

the premise for the third claim of ineffectiveness – that defense counsel did not 

ensure the judge's consideration of defendant's interrogation video – is 

inaccurate. The judge stated during the suppression hearing that she "watch[ed] 

it twice."

Although we reject the second and third arguments, we must remand for 

an evidentiary hearing on the first. In seeking relief in the PCR court, defendant 

submitted his mother's certification, in which she claimed defendant's criminal 

conduct occurred because he was "in the grip of terrible addiction to drugs and 

alcohol." She asserted that she and other family members determined "that a 

period of incarceration would most likely be . . . beneficial" because it "would 

keep [defendant] away from drugs and alcohol." She claimed that this "idea" 

was "communicated" to the retained attorney, that the family "and the attorney 

were in con[s]ensus with the intent to not oppose incarceration," and that they 

collectively "decided to proceed" accordingly.
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In rejecting this argument, the PCR judge correctly recognized that the 

mere payment of legal fees by someone other than the client does not necessarily 

create a conflict of interest. See generally In re State Grand Jury Investigation, 

200 N.J. 481 (2009). She also correctly determined that whether the attorney

was ineffective on the ground he had divided loyalties could be evaluated to 

some degree through an examination of the attorney's performance in the 

underlying proceedings.

1

 And, as the judge observed, the allegedly conflicted 

attorney forcefully sought the suppression of incriminating statements defendant 

made to police. But that alone does not negate the possibility that counsel might

still have pursued – in accordance with the family's desire – a course that would 

ensure defendant's incarceration.

2

 In the interests of justice, we agree with

 

1 The PCR judge presided over the suppression hearing and the earlier 

proceedings as well and was entitled to rely on her familiarity with those events 

in assessing defense counsel's performance.

2 We are mindful that the record suggests the State was unwilling to enter into 

a plea agreement that would not include a guilty plea to first-degree robbery. 

We cannot determine from this undeveloped record whether – in light of the 

State's apparent position – there was a reasonable basis for defendant to avoid 

the inevitable lengthy sentence a first-degree guilty plea would generate by 

going to trial; that question might very well include a consideration of the 

evidence the State could have marshaled against defendant. Because of the lack 

of a more developed record than presented, we cannot ascertain whether the 

advice given by the attorney – and taken by defendant when he pleaded guilty –

was more aligned with the family's wishes than defendant's.
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defendant that an evidentiary hearing into the allegations contained in his 

mother's certification is required. The PCR court should factually determine 

whether the attorney that defendant's family retained was conflicted for any of 

the reasons asserted and whether that conflict warrants a finding of 

ineffectiveness under the Strickland/Fritz test.3

The order under review is vacated and the matter remanded for an 

evidentiary hearing in conformity with this opinion. We do not retain 

jurisdiction.

 

3 Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42 

(1987).