                                NOT FOR PUBLICATION WITHOUT THE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-1811-18T2

DARRELL B. BROWN,

         Plaintiff-Appellant,

v.

STATE OF NEW JERSEY,
MORRIS COUNTY OFFICE
OF THE PUBLIC DEFENDER
and JOEL HARRIS, ESQ.,

     Defendants-Respondents.
___________________________

                   Argued February 3, 2020 – Decided March 3, 2020

                   Before Judges Sabatino and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Morris County, Docket No. L-1538-16.

                   David Howard Kaplan argued the cause for appellant
                   (David Howard Kaplan, of counsel and on the brief;
                   Jeffrey Zajac, on the brief).

                   Bryan Edward Lucas, Deputy Attorney General, argued
                   the cause for respondents (Gurbir S. Grewal, Attorney
                   General, attorney; Jane C. Schuster, Assistant Attorney
                   General, of counsel; Bryan Edward Lucas, on the brief).
PER CURIAM

      Plaintiff Darrell B. Brown appeals from a Law Division order granting

summary judgment dismissing his claims of legal malpractice and pain and

suffering against defendants Joel Harris, Esq., and the State of New Jersey,

Morris County Office of the Public Defender ("OPD"). The court ruled that

Brown was unable to demonstrate the damages prong of his legal malpractice

claim; in turn, his pain and suffering claim was rendered moot. We affirm.

                                      I.

      A Union County Grand Jury returned Indictment No. 04-07-7141 charging

Brown with third-degree eluding, N.J.S.A. 2C:29-2(b). A Morris County Grand

Jury returned two indictments. Indictment No. 04-12-1587 charged him with

third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (the simple possession

count). Indictment No. 04-12-1523 charged him with third-degree possession

of CDS, N.J.S.A. 2C:35-10(a)(1); second-degree possession of CDS with intent

to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(2); and third-

degree possession of CDS with intent to distribute within 1000 feet of a school

property, N.J.S.A. 2C:35-7 (the school zone count).

      In July 2005, Brown pleaded guilty to the eluding, simple possession, and

school zone counts. He also pleaded guilty to two driving while intoxicated

                                                                       A-1811-18T2
                                      2
charges, N.J.S.A. 39:4-50. The following month he was sentenced to three

concurrent probationary terms. On the eluding count, Brown was sentenced to

a three-year term of drug court probation with an alternative sentence of a five-

year prison term. On the school zone count, Brown was sentenced to a five-year

term of drug court probation with an alternative sentence of a ten-year prison

term with a fifty-eight-month period of parole ineligibility. On the simple

possession count, Brown was sentenced to a three-year term of drug court

probation with an alternative sentence of a five-year prison term. The court also

imposed required fines, penalties, and driver's license suspensions.

      In June 2010, nearly one month before his expected graduation from drug

court, Brown was arrested and charged with violation of probation (VOP) based

on his admitted use of heroin and cocaine. Brown was represented on the VOP

by Joel Harris, a "pool attorney" designated by the OPD. Brown pleaded guilty.

      At the sentencing hearing, the court noted Brown's extensive criminal

history that includes eleven prior indictable convictions and numerous prior

disorderly persons offense convictions. He has been previously convicted of

possession of CDS with intent to distribute. The court found aggravating factors

three (risk of re-offense), six (prior criminal record), and nine (need for

deterrence), N.J.S.A. 2C:44-1(a)(3), (6), and (9).       The court also found


                                                                        A-1811-18T2
                                       3
mitigating factor ten (likely to respond affirmatively to probationary treatment),

N.J.S.A. 2C:44-1(b)(10), no longer applied.

      Brown was terminated from drug court and resentenced on the school zone

count to a five-year term subject to a twenty-month period of parole ineligibility.

Brown was resentenced on the eluding count to a five-year prison term to run

consecutively to the school zone count. Brown was resentenced to a concurrent

five-year term on the simple possession count.

      Although no one raised the issue during the sentencing hearing, the State

acknowledges that the VOP sentences relating to the eluding and simple

possession convictions violated the double jeopardy clause. Brown had already

finished his three-year probation terms on those two convictions.

      In contrast, Brown's VOP conviction on the school zone count was valid.

Because of his prior conviction for possession of CDS with intent to distribute,

Brown was eligible to be sentenced to an extended term of five to ten years

pursuant to N.J.S.A. 2C:43-7(a)(4), and a mandatory period of parole

ineligibility "at, or between, one-third and one-half of the sentence imposed by

the court or three years, whichever is greater," pursuant to N.J.S.A. 2C:43-6(f).

Accordingly, if Brown were sentenced to a five-year term on the school zone

count, he would not have been eligible for parole for three years. N.J.S.A.


                                                                          A-1811-18T2
                                        4
2C:43-6(f). If he were sentenced to a ten-year term, he would not have been

eligible for parole for the first forty to sixty months.

      In addition, Brown's sentence was subject to N.J.S.A. 2C:35-12, which

requires the mandatory term with parole ineligibility be imposed unless the

defendant pleads guilty pursuant to a negotiated plea agreement which provides

for a lesser term or period of parole ineligibility. "In that event, the court at

sentencing shall not impose a lesser term of imprisonment [or] lesser period of

parole ineligibility . . . than that expressly provided for under the terms of the

plea. . . . " N.J.S.A. 2C:35-12.

      Despite the mandate of N.J.S.A. 2C:35-12, the court sentenced Brown to

a five-year term subject to a twenty-month period of parole ineligibility on the

school zone count, rather than imposing the alternate sentence set forth in the

plea agreement. Brown, still represented by Harris, moved for reconsideration

of the sentence on grounds other than the improper sentences on the two VOPs.

Reconsideration was denied.        Brown did not file a direct appeal from the

sentence. Neither did the State.

      Brown was paroled on March 15, 2012. His parole was subsequently

revoked in September 2012 after he was accused of assaulting a drug treatment

provider.   Brown remained incarcerated until paroled again in April 2014.


                                                                         A-1811-18T2
                                         5
Brown's parole was revoked again in January 2015 after he relapsed while in

drug treatment. Harris admitted the drug court should not have sentenced Brown

to prison terms on those two VOPs.

      On February 23, 2015, Brown filed a pro se petition for post-conviction

relief (PCR). Counsel was appointed to represent Brown. In September 2015,

the PCR court vacated the VOP sentences on the eluding and simple possession

convictions because Brown had already completed the three-year probation

terms on those charges in 2008. The PCR court did not modify the VOP sentence

on the school zone count.

      Brown filed this legal malpractice action in July 2016. In his complaint,

Brown alleged legal malpractice (count one) and sought recovery for alleged

pain and suffering related to emotional distress resulting from his incarceration

under the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3 (count

two). Brown alleged the custodial sentences imposed for violating the two

probationary terms that were already completed were illegal and "defendants

failed to take the necessary legal action to address the sentencing errors." Brown

claimed that he served custodial sentences that he would not have served but for




                                                                         A-1811-18T2
                                        6
defendants' negligence, causing him to suffer a substantial loss of liberty while

serving the additional time in prison and on parole.1

      Discovery was completed on June 4, 2018. Shortly thereafter, defendants

moved for summary judgment.          Defendants contended Brown could not

establish that he sustained any damages resulting from the VOP sentences

because Brown was sentenced to a shorter prison term than required by statute

and under the terms of the plea agreement.

      On December 7, 2018, the motion court issued an order and oral decision

granting summary judgment dismissing the complaint. The court accepted as

true, for purposes of the motion, that Harris failed to obtain and review the plea

agreement forms and the transcript of Brown's 2005 sentencing hearing.

      The motion court engaged in the following analysis. It was undisputed

that an attorney-client relationship existed, and that Harris owed Brown a duty

of care. For purposes of the motion, defendants accepted that attorneys "must

provide . . . services with reasonable knowledge, skill, and diligence which

includes undertaking a careful investigation of the facts of the matter,




1
  Notably, Brown's amended complaint did not include the TCA count. Brown
did not move to further amend the complaint to restore the deleted TCA count.


                                                                         A-1811-18T2
                                        7
formulation of legal strategy, filing of appropriate papers, and maintenance of

communication with a client."

      The court explained Brown must demonstrate that he sustained "actual

damages" proximately caused by Harris' negligence. Applied here, Brown must

demonstrate that but for Harris' breach of duty, his VOP sentence "would have

been less than the one he received," quoting Cortez v. Gindhardt, 435 N.J. Super.

589, 605 (App. Div. 2014). The motion court concluded Brown failed to do so.

      It noted Harris did not represent Brown in 2005. Based on the numerous

charges he initially faced, Brown faced a maximum exposure of a thirty-year

aggregate extended range sentence subject to a ten-year period of parole

ineligibility. The court stated Brown's defense counsel at the time negotiated

"the best possible outcome," a drug court probationary sentence. To secure that

outcome, plaintiff entered into a plea agreement that included an alternative

sentence of an extended ten-year term subject to fifty-eight months of parole

ineligibility on the school zone count, as mandated by N.J.S.A. 2C:43-6(f) and

N.J.S.A. 2C:43-7(a)(4), due to Brown's prior conviction for possession of CDS

with intent to distribute in a school zone. He was also eligible to be sentenced

as a persistent offender to an extended term.




                                                                        A-1811-18T2
                                       8
      The court further found Harris said nothing to correct the prosecutor's

misstatements during the VOP sentencing. However, Brown's expert did "not

and [could not] assert that the recommended [alternative] sentence was illegal"

based on Brown's prior conviction. Nor did Brown's expert dispute that the State

could have moved for, and the court could have granted, a mandatory ten-year

sentence subject to fifty-eight months of parole ineligibility on the school zone

count. Instead, Brown's expert opined the court lacked authority to impose the

mandatory extended term that the State never sought. The expert concluded that

Harris' failure to address this issue was malpractice because, absent such

advocacy, we will never know what the sentencing court would have done.

      The motion court concluded the correct basis for the longer prison term

was enforcement of the mandatory extended term, not imposition of a

consecutive term on the eluding count. It likened this to a Catch-22 situation

"that all centers on speculation." It noted Harris said "nothing" at the sentencing

hearing because he realized the sentencing court issued a sentence that was

"significantly shorter than the one contemplated in the plea agreement." Finding

that Brown's expert's opinion is premised on speculation, the motion court

determined that no rational juror could conclude that Brown suffered damages

as a result of Harris' failure to address the sentencing issue. Most significantly,


                                                                          A-1811-18T2
                                        9
it found Brown could not demonstrate that his sentence "would have been less

than the one he received," quoting Cortez, 435 N.J. Super. at 605. Moreover,

because the sentence was mandatory, the sentencing court was "required" to

impose a ten-year, must serve fifty-eight-month sentence.

      As to the TCA claim premised upon emotional distress, the motion court

noted that count was not included in the amended complaint plaintiff filed.

Therefore, although it could not determine whether there were disputed issues

of material fact as to emotional distress damages, or the TCA's verbal threshold,

by dismissing the malpractice claim the court determined it need not reach the

emotional distress claim. This appeal followed.

      Plaintiff advances the following arguments on appeal:

            Point I:

            IN HOLDING THAT THE PLAINTIFF FAILED TO
            DEMONSTRATE A PRIMA FACIE CASE OF
            LEGAL MALPRACTICE, THE LAW DIVISION
            COMMITTED    REVERSIBLE     ERROR    IN
            GRANTING SUMMARY JUDGMENT TO THE
            DEFENDANTS.

            A. The Plaintiff Established a Prima Facie Case of
            Legal Malpractice.

            B. The Tenor of the VOP Sentencing Hearing Would
            Have Been Fundamentally Different If Harris Had
            Informed the Court That There Was Only One and Not
            Three VOP Violations Before It.

                                                                        A-1811-18T2
                                      10
            C. The Law Division's Reasoning In Support of Its
            Decision Was Untenable and Without Support.

                                        II.

      Our review of a ruling on summary judgment is de novo, applying the

same legal standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59

(2015). We accord no special deference to the trial judge's conclusions on issues

of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

      A court must grant summary judgment "if the pleadings, depositions,

answers to interrogatories and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact challenged and

that the moving party is entitled to a judgment . . . as a matter of law." Town of

Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)). "[W]hen

reviewing summary judgment motions, we must view the 'evidential materials .

. . in the light most favorable to the non-moving party.'" Puder v. Buechel, 183

N.J. 428, 440 (2005) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 540 (1995)). We apply these well-settled principles to this appeal.

      The governing law of legal malpractice is likewise well-established.

Legal malpractice suits are grounded in the tort of negligence. McGrogan v.

Till, 167 N.J. 414, 425 (2001) (citations omitted). In order to survive summary


                                                                          A-1811-18T2
                                       11
judgment, Brown had to demonstrate that his legal malpractice claim was viable.

Cortez, 435 N.J. Super. at 598. To establish legal malpractice, a claimant must

demonstrate that (1) an attorney-client relationship creating a duty of care

existed, (2) the duty was breached, (3) the breach proximately caused damages,

and (4) actual damages were incurred. Ibid. (quoting Sommers v. McKinney,

287 N.J. Super. 1, 9-10 (App. Div. 1996)). A lawyer is obligated "to exercise

that degree of reasonable knowledge and skill that lawyers of ordina ry ability

and skill possess and exercise." St. Pius X House of Retreats v. Diocese of

Camden, 88 N.J. 571, 588 (1982).

      "Actual damages . . . are real and substantial as opposed to speculative."

Cortez, 435 N.J. Super. at 603 (quoting Grunwald v. Bronkesh, 131 N.J. 483,

495 (1993)). Damages must be supported by more than "conjecture, surmise or

suspicion." 2175 Lemoine Ave. Corp. v. Finco, Inc., 272 N.J. Super. 478, 488

(App. Div. 1994) (quoting Long v. Landy, 35 N.J. 44, 54 (1961)).

      "Ordinarily, the measure of damages is what result the client would have

obtained in the absence of attorney negligence." Cortez, 435 N.J. Super. at 604

(citing 2175 Lemoine Ave., 272 N.J. Super. at 488)). "Therefore, the client

bears the burden of showing, by a preponderance of the competent, credible

evidence, 'what injuries were suffered as a proximate consequence of the


                                                                       A-1811-18T2
                                      12
attorney's breach of duty.'" Ibid. (quoting 2175 Lemoine Ave., 272 N.J. Super.

at 488). "Thus, to prove such injury, 'the client must demonstrate that he or she

would have prevailed, or would have won materially more . . . but for the alleged

substandard performance."     Ibid. (alteration in original) (quoting Lerner v.

Laufer, 359 N.J. Super. 201, 221 (App. Div. 2003)).

      Brown "was required to demonstrate that the missed opportunity had

actual value." Id. at 604-05. He bore the burden to show that the court would

have imposed a more favorable aggregate sentence than the one he received.

See id. at 605. The motion court correctly concluded he failed to do so.

      To defeat the motion for summary judgment, Brown had to "come forward

with evidence that creates a genuine issue of material fact." Ibid. (quoting

Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App.

Div. 2012)); see R. 4:46-2. "An issue of fact is genuine only if, considering the

burden of persuasion at trial, the evidence submitted by the parties on the

motion, together with all legitimate inferences therefrom favoring the non-

moving party, would require submission of the issue to the trier of fact. " Ibid.

(quoting R. 4:46-2(c)). "Competent opposition requires competent evidential

material beyond mere speculation and fanciful arguments."         Ibid. (internal




                                                                        A-1811-18T2
                                      13
quotation marks omitted) (quoting Hoffman v. Asseenontv.com, Inc., 404 N.J.

Super. 415, 426 (App. Div. 2009)).

      Here, Brown provided no evidence that the sentencing court would have

imposed a lesser aggregate sentence if Harris had argued that the probationary

terms on the eluding and simple possession counts had expired. Rather, Brown

speculates that he would only have received the five-year, must serve twenty

months sentence on the school zone count.         We are unpersuaded by this

argument.

      Brown ignores the fact that the negotiated alternative sentence on the

school zone count was a ten-year term with a fifty-eight-month period of parole

ineligibility. Brown argues that the sentencing court could not impose the

alternate extended sentence because it did not formally move to do so at

sentencing. We disagree.

      A defendant sentenced for third-degree possession with intent to distribute

a CDS in a school zone, "who has been previously convicted of manufacturing,

distributing, dispensing or possessing with intent to distribute a [CDS] or

controlled substance analog, shall upon application of the prosecuting attorney

be sentenced by the court to an extended term." N.J.S.A. 2C:43–6(f). Defendant

does not dispute he was extended-term eligible; rather, he bases his argument


                                                                        A-1811-18T2
                                      14
on the N.J.S.A. 2C:43-6(f) requirement that the prosecuting attorney make a

formal application for the extended-term sentence.

      Rule 3:21-4(e) provides that a motion for an extended term of

imprisonment pursuant to N.J.S.A. 2C:43-6(f) shall be filed by the State within

fourteen days of the entry of the defendant's guilty plea or return of the verdict.

The Rule also provides:

            Where the defendant is pleading guilty pursuant to a
            negotiated disposition, the prosecutor shall make the
            motion at or prior to the plea. If the negotiated
            disposition includes the recommendation of an
            extended term, the prosecutor's oral notice and the
            recordation of the extended term exposure in the plea
            form completed by defendant and reviewed on the
            record shall serve as the State's motion.

            [R. 3:21–4(e).]

      Here, defendant accepted the State's plea offer under which the State

recommended a five-year special probationary term in drug court and an

alternative extended-term ten-year custodial sentence with a fifty-eight-month

period of parole ineligibility on the school zone count. The plea form defendant

signed included the State's sentencing recommendation. Moreover, defendant

was advised during his plea hearing that he would receive special drug court

probation and the alternate custodial sentence.



                                                                          A-1811-18T2
                                       15
      The State's communications during the plea process and hearing, coupled

with the information contained in the plea form, constituted the State’s

application for an extended term. R. 3:21-4(e). We are satisfied that imposition

of an extended-term sentence would have been in accordance with law because

the State made an application for an extended-term sentence as required under

N.J.S.A. 2C:43-6(f).    Defendant’s alternative sentence, therefore, was not

illegal. See State v. Acevedo, 205 N.J. 40, 45 (2011) ("an illegal sentence is one

that 'exceeds the maximum penalty provided in the Code for a particular offense'

or a sentence 'not imposed in accordance with law'") (quoting State v. Murray,

162 N.J. 240, 247 (2000))).

      The State was not required to file a new application for an extended-term

sentence under N.J.S.A. 2C:43-6(f) following defendant's plea to the violation

of his special drug court probation. The custodial sentence of ten years with a

fifty-eight-month period of parole ineligibility was properly included as an

alternative sentence to his special drug court probation. State v. Bishop, 429

N.J. Super. 533, 551-52 (App. Div. 2013), aff’d, 223 N.J. 290 (2015).

"[M]andatory periods of parole ineligibility and mandatory extended term

provisions that existed at the time of original sentencing survive during the term

of special probation and remain applicable at the time of resentencing upon


                                                                         A-1811-18T2
                                       16
permanent revocation of special probation." Id. at 536. Following Brown's plea

to the VOP, and the permanent revocation of his special drug court probation,

"[t]he court had the authority to impose any lawful sentence not to exceed that

recommended as an alternative in the plea agreement." Id. at 551; N.J.S.A.

2C:35-14(f)(4).

      Moreover, as previously explained, Brown's sentence was subject to

N.J.S.A. 2C:35-12, which prohibited sentencing Brown to "a lesser term of

imprisonment [or] lesser period of parole ineligibility . . . than that expressly

provided for under the terms of the plea."

      The alternative sentence is significantly harsher than the aggregate

sentence Brown received. Brown received an aggregate ten-year term subject

to a twenty-month period of parole ineligibility on the school zone count. He

thus had to serve forty months before becoming eligible for parole , comprised

of twenty months on the school zone count and twenty months on the eluding

count. See N.J.S.A. 30:4-123.51(a) ("Each adult inmate sentenced to a term of

incarceration . . . shall become primarily eligible for parole after having served

any judicial or statutory mandatory minimum term, or one-third of the sentence

imposed where no mandatory minimum term has been imposed . . . .").




                                                                         A-1811-18T2
                                       17
      The alternative mandatory minimum sentence on the school zone count

was a ten-year term subject to fifty-eight months of parole ineligibility. The

parole ineligibility period is eighteen months longer. In addition, commutation

time for good behavior pursuant to N.J.S.A. 30:4-140, and work credits pursuant

to N.J.S.A. 30:4-92, "shall only be awarded subsequent to the expiration of the

[mandatory minimum] term."       N.J.S.A. 30:4-123.51(a).    Therefore, Brown

would not have been eligible for such credits for an additional eighteen months

if the alternative sentence was imposed.

      Brown has presented no evidence to demonstrate that he would have

received a more favorable aggregate sentence if Harris objected to the sentences

imposed on the eluding and simple possession counts. He likewise has not

demonstrated that he would have received a more favorable sentence if he had

filed a direct appeal. Indeed, had Brown appealed his sentence, this court would

have reversed the illegal sentence imposed on the school zone count, and

remanded, directing the sentencing court to impose the mandatory minimum

extended sentence for that offense. 2 Moreover, the State would likely have


2
  An illegal sentence may be corrected at any time. State v. Tavares, 286 N.J.
Super. 610, 617 (App. Div. 1996). Although the parties did not raise this issue
before the sentencing court, "a reviewing court is not free to ignore an illegal
sentence," State v. Moore, 377 N.J. Super. 445, 450 (App. Div. 2005) (citing


                                                                        A-1811-18T2
                                      18
objected during the sentencing hearing if the consecutive sentence on the

eluding counts were not imposed. Further, the State was free to appeal from the

illegal sentence at any time before Brown completed his sentence. State v.

Schubert, 212 N.J. 295, 310-11 (2012); R. 3:21-10(b).

      For these reasons, Brown is unable to demonstrate that he would have

received a lesser aggregate sentence if Harris had informed the sentencing court

that Brown could not be sentenced for the VOPs on the eluding and simple

possession counts. Nor can Brown demonstrate that he would have served less

actual prison time before being paroled. Thus, Brown's legal malpractice claim

rests upon an alleged injury "that is based upon mere speculation, and was

correctly dismissed." Cortez, 435 N.J. Super. at 607.

      Affirmed.




State v. Flores, 228 N.J. Super. 586, 594 (App. Div. 1988)), and should correct
it, Tavares, 286 N.J. Super. at 617.
                                                                       A-1811-18T2
                                      19
