                        NOT FOR PUBLICATION WITHOUT THE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.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2785-16T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

LARRY J. ANDERSON,

        Defendant-Appellant.


              Submitted March 21, 2018 – Decided June 12, 2018

              Before Judges Alvarez and Currier.

              On appeal from Superior Court of New Jersey,
              Law Division, Burlington County, Indictment
              No. 13-05-0336.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Karen A. Lodeserto, Designated
              Counsel, on the brief).

              Scott   A.    Coffina,   Burlington  County
              Prosecutor, attorney for respondent (Nicole
              Handy, Assistant Prosecutor, of counsel and
              on the brief).

PER CURIAM
     On the eve of trial, defendant Larry J. Anderson entered an

"open" plea to second-degree burglary, N.J.S.A. 2C:18-2(a)(1).1

On January 16, 2015, the court sentenced defendant——as the judge

had previously indicated——to five years state prison, subject to

eighty-five   percent   parole   ineligibility   under   the   No     Early

Release Act (NERA), N.J.S.A. 2C:43-7.2.      Additionally, defendant

was to pay restitution in the amount of $8106.      Appropriate fines

and penalties were imposed.       Defendant did not file a direct

appeal, but instead filed this petition for post-conviction relief

(PCR).   We now remand for the purpose of a limited hearing.

     The facts are in dispute.    Based on defendant's sworn factual

basis for his guilty plea, the police report, and defendant's

confession, the State asserts that defendant and a co-defendant,

who was prepared to testify against him, burglarized a home for a

second time in September 2012. Defendant then removed two shotguns

from the residence.




1
   The counts in the indictment that were dismissed pursuant to
the plea agreement all related to the burglary incidents at issue
including two counts of third-degree burglary, N.J.S.A. 2C:18-
2(a)(1) (counts one and two); third-degree theft by unlawful
taking, N.J.S.A. 2C:20-3(a) (count three); third-degree theft by
unlawful taking, N.J.S.A. 2C:20-3(a) (count six); and third-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1) (count
seven).


                                   2                                A-2785-16T1
      Police acquired intelligence about the burglaries directing

them to defendant and his co-defendant.          They learned defendant

had   an   outstanding    municipal   court   warrant   for   his   arrest.

According to the police report, when the officers arrived at his

residence to investigate and execute the warrant, defendant came

outside to speak to them.      They administered Miranda2 warnings and

asked defendant if he had "anything that did not belong to him."

Defendant volunteered he had two guns in a bedroom closet.                 He

signed a written consent to search, went inside with the officers,

and showed them the stolen shotguns hidden in a closet.              Police

drove defendant to the station where, after signing a Miranda

waiver card, he confessed to the burglary and theft of the guns.

      In    his   PCR   petition,   defendant   described     a   different

scenario.     He claimed police walked into the back door of his

home, were given permission to search by his five-year-old son,

and only obtained his confession after the officers showed him the

shotguns they wrongfully seized.

      In his argument to the Law Division as well as on this appeal,

defendant contends counsel was ineffective because he did not file

a motion to suppress the guns, and inferentially, the statement

he initially made to the police leading them to the incriminating



2
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                      3                             A-2785-16T1
evidence.   Defendant did not argue to the Law Division judge, and

does not argue on appeal, that the Mirandized confession at the

station should have been suppressed.

     The State submitted a certification from defendant's trial

counsel in opposition to the PCR petition.                Counsel certified that

defendant insisted on taking the matter to trial because he wanted

to follow through on a challenge to the operability of the weapons,

and wanted to "attempt[] to have his confession suppressed."

     N.J.R.E. 504(2)(C) states that the attorney-client privilege

does not extend "to a communication relevant to an issue of breach

of duty by the lawyer to his client."             Trial counsel are routinely

called by the State to testify at PCR hearings regarding their

representation,   in     order      to        refute    claims    by   defendants

challenging the effectiveness of their services.                 But that process

provides a defendant with notice and the opportunity to cross-

examine his trial counsel.

     In   rendering    his    decision        denying     PCR,   the   judge   said

"[d]efendant never notified his trial counsel of the alleged

fabricated facts listed in the police report."                   Thus, the judge

relied in part on trial counsel's certification in reaching his

decision.     Although       the   rule       nullifies    the   attorney-client

privilege in situations such as this, it is not so clear that due



                                          4                                A-2785-16T1
process requirements were satisfied by the State's submission of

a certification.

     In order to obtain relief on ineffective assistance of counsel

grounds, a defendant must demonstrate not only that counsel's

performance was deficient, but the manner in which the alleged

deficiency prejudiced his right to a fair trial, Strickland v.

Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42,

58 (1987).

     When an ineffective assistance of counsel claim is made by a

defendant who entered a guilty plea, he or she must also show that

not only was the representation not "within the range of competence

demanded of attorneys in criminal cases," but also that there was

"a   reasonable    probability   that,     but   for   counsel's   errors,

[defendant] would not have pled guilty and would have insisted on

going to trial."      State v. DiFrisco, 137 N.J. 434, 457 (1994)

(citations omitted).

     Without    cross-examination,       defendant   was   foreclosed   from

exploring his attorney's perspective on defendant's decision to

plead guilty.     Without cross-examination, the judge only had the

version of the interactions between counsel and defendant most

favorable to the State.      It would be unfair to assess whether

defendant established a prima facie case sufficient to warrant a

full evidentiary hearing on this record.         We do not question the

                                     5                              A-2785-16T1
rule's applicability, and by this decision in no way intend to

indicate that we have an opinion as to the ultimate outcome.            Our

concern is solely that the case was decided, and the attorney-

client   privilege   waived   as   allowed   under   the   rule,   without

affording defendant the opportunity to explore the information

upon which the judge relied.        After the limited hearing, which

shall be completed within sixty days, the judge should incorporate

any factual findings and legal conclusions he may make as a result

into his decision.

     Remanded for a limited hearing at which defendant may cross-

examine his attorney.    We retain jurisdiction.




                                    6                              A-2785-16T1
