                             NOT FOR PUBLICATION WITHOUT THE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-1592-16T4

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

GEORGE KACPRZYKOWSKI,

     Defendant-Appellant.
________________________________

                Argued August 29, 2018 – Decided October 3, 2018

                Before Judges Alvarez and Gooden Brown.

                On appeal from Superior Court of New Jersey, Law
                Division, Atlantic County, Indictment No. 09-11-2830.

                Justin T. Loughry, Designated Counsel, argued the
                cause for appellant (Joseph E. Krakora, Public
                Defender, attorney; Justin T. Loughry, on the briefs).

                John J. Lafferty, IV, Assistant Prosecutor, argued the
                cause for respondent (Damon G. Tyner, Atlantic
                County Prosecutor, attorney; John J. Lafferty, IV, of
                counsel and on the brief).

PER CURIAM
      Defendant George Kacprzykowski appeals from the August 3, 2016 Law

Division order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

      An Atlantic County grand jury indicted defendant for second-degree theft

by deception, N.J.S.A. 2C:20-4 (count one); two counts of third-degree theft by

failure to make required disposition, N.J.S.A. 2C:20-9 (counts two and three);

two counts of third-degree forgery, N.J.S.A. 2C:21-1(a)(2) (counts four and

five); and two counts of third-degree uttering a forged instrument, N.J.S.A.

2C:21-1(a)(3) (counts six and seven). The charges stemmed from defendant,

who was then a licensed real estate agent, misappropriating funds in excess of

$75,000 given to him by the victim in connection with various real estate

transactions.

      On November 30, 2009, defendant entered a negotiated guilty plea to

count one, as amended to third-degree theft by deception. Defendant agreed to

pay restitution in the amount of $77,500 and to waive his right to appeal. In

exchange, in addition to amending count one and moving to dismiss the

remaining counts in the indictment at sentencing, the State agreed to recommend




                                                                      A-1592-16T4
                                      2
a non-custodial probationary sentence. 1 During the plea colloquy, defendant

admitted that between May 2004 and June 2005, he received deposits from the

victim, which he claimed were held in escrow, but were instead deposited into

defendant's personal account and spent.       Defendant admitted that he never

returned the deposits to the victim when the real estate transactions never

materialized. Defendant also received money from the victim and deceived him

into believing that he (the victim) was investing as a partner in a company

specializing in purchasing large commercial properties and selling them at a

profit. On January 29, 2010, in accordance with the terms of the plea agreement,

defendant was sentenced to serve five years probation and ordered to pay

$77,500 in restitution.

      On May 5, 2014, the trial court denied defendant's motion for a reduction

of the restitution amount, noting that the application "started out as a motion for

post-conviction relief." In an oral decision, the court determined that neither the

"checks" defendant claimed he paid to the victim prior to the plea agreement nor

the "business expenses" he claimed he incurred in connection with their



1
  Because defendant had a prior indictable conviction, he was not entitled to the
presumption of non-incarceration applicable to most third-degree first-time
offenders. N.J.S.A. 2C:44-1(e).


                                                                          A-1592-16T4
                                        3
purported real estate company were "proper setoff[s]" to the restitution ordered

pursuant to the plea agreement.      On July 1, 2014, the court again denied

defendant's motion for reconsideration of sentence for the same reasons, noting

that defendant "failed to submit any new information" that was not already

considered at the restitution hearing.

      Defendant appealed the July 1, 2014 order, which was considered on the

excessive sentencing oral argument calendar pursuant to Rule 2:9-11. In an

order dated April 15, 2015, we affirmed the July 1, 2014 order "denying

defendant's motion for modification of the amount of restitution owed,

substantially for the reasons stated by the trial judge in his oral decision of May

5, 2014." We added, however, that because "there were no facts in the record

by way of certifications to support the claim made in the motion[,]" our

affirmance was "without prejudice to a renewal of an application for post -

conviction relief with respect to the issue of representation by def ense counsel

at the plea."

      On February 16, 2016, defendant filed the present PCR application,

asserting that his attorney was ineffective for advising him to accept the plea

and accede to the restitution amount without adequately explaining his defense

to the charge. In his supporting certification, defendant averred that he and the


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                                         4
victim "agreed to be partners to invest in commercial properties," and

"formalized [their] relationship in June 2005 with the creation of a limited

liability company." According to defendant, the LLC issued promissory notes

to the victim for all the monies the victim invested, both before the LLC was

formally created and after.

      Defendant asserted that his plea counsel failed to examine all the relevant

documents, including the LLC's operating agreement and promissory notes

totaling $85,500, in order to demonstrate to the court and the prosecuting

attorney that any demand for restitution that included the amounts invested by

the victim pursuant to their LLC agreement was excessive and without legal

support.   According to defendant, his attorney's performance was deficient

because he failed to draw a distinction between the $20,000 the victim entrusted

to him personally in his capacity as an employee of a real estate brokerage office

and which he admittedly failed to hold in escrow, and later investments by the

victim into the LLC for which defendant should not have been personally liable.

      Following oral argument, in an August 3, 2016 written opinion, the PCR

court denied the application without an evidentiary hearing, finding defendant

failed to "present a prima facie case of ineffective assistance of trial counsel" to




                                                                           A-1592-16T4
                                         5
satisfy his burden under both prongs of the Strickland/Fritz 2 test. Procedurally,

the court determined that defendant's claim was barred under Rule 3:22-4(a),

barring claims not raised in prior proceedings, because he "litigated the issue of

restitution on two previous occasions, on May 5, [2014] . . . on motion to

reconsider, and on April 15, 2015, on a direct appeal." According to the court,

"[d]efendant is now attempting to litigate what essentially is the same exact

issue, to change the amount of restitution, through an ineffective assistance of

counsel claim."

      Turning to the merits, the court concluded that defendant failed to

demonstrate that his "counsel was ineffective" or "that he was prejudiced by

counsel's performance." The court reviewed numerous documentary exhibits

submitted by defendant to support his claim and concluded that the documents

did not support a corporate veil defense. According to the court, "the existence

of [a] LLC does not make the [defendant] untouchable under criminal law, where

he committed fraud, misappropriation and theft on multiple occasions." The

court continued "[w]here the members of [a] LLC or corporation engage in




2
  Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42
(1987).
                                                                         A-1592-16T4
                                        6
deliberate unlawful conduct, the corporate veil can be pierced warranting

personal liability by the shareholders."

      In support, the court relied on a series of cases in which New Jersey courts

pierced the corporate veil of a closely held corporation or a limited partnership

to impose liability on a partner individually who "used the limited partnership

to perpetrate a fraud, injustice, or otherwise circumvent the law." The court

concluded:

                   The case at hand falls within the exceptions
             created by New Jersey courts to pierce [the] corporate
             veil. The [defendant] engaged in deliberate unlawful
             conduct.      The [defendant] admitted that he
             misappropriated the deposit money provided by the
             victim. The sole purpose of creating the LLC seems to
             be to defraud the victim out of money without raising
             suspicion. However, the money provided by the victim
             [was] never placed into a trust account or in an escrow
             but was deposited into the [defendant's] personal bank
             accounts. The [defendant's] conduct is exactly the kind
             that was contemplated by the courts, when they created
             an exception that permitted personal liability of
             corporate members. . . . The [c]ourt finds that the
             presented materials do not demonstrate that the money
             extended by the victim was lost through efforts to
             purchase the property as intended by the LLC
             agreement. The [defendant] has previously admitted
             that he placed the money in his personal bank account
             and subsequently spent the money for personal use.
             The documents presented do not negate that admission.

                   Consequently, even if the trial counsel did advise
             the [defendant] that the LLC['s] status would protect

                                                                         A-1592-16T4
                                           7
            him from personal liability[,] that information under the
            circumstances would have been inaccurate and could
            have potentially cause[d] more harm to the
            [defendant's] case. . . .

                  Therefore, the [c]ourt finds that the [defendant]
            was not prejudiced by the trial counsel's failure to
            explore the defense of the "corporate shield." The
            defense would have been rejected by the trial court if it
            was presented at the time of his plea.

      "[I]n evaluating the reasons for counsel's advice, as well as the credibility

of defendant's statement that he would not have pled guilty," the court also

considered "the strength of the State's case" and concluded "that the State had

sufficient evidence to convict the [defendant] on all of the counts charged." The

court pointed out that

            [t]here were statements by the [defendant's] former real
            estate employer regarding his failure to place the
            deposit money in escrow. There are promissory notes
            from the [defendant] to the victim for both personal and
            LLC loans. The [defendant's] conduct had a sufficient
            paper trail to convict him on the charged offenses. The
            [c]ourt finds that the [defendant] made a well[-
            ]informed and weighted decision to take a plea to avoid
            potential sentence exposure which included
            incarceration.

      The court also rejected defendant's argument that "his plea was

uninformed because his attorney failed to present him with potential defense

options." On the contrary, the court found that defendant's plea "was voluntary,


                                                                          A-1592-16T4
                                        8
well informed, and reasonable in . . . light of the charges, potential exposure,

and the strength of the State's case." The court explained:

              Considering that the [defendant] took a plea where he
              agreed to a term of probation and restitution as opposed
              to [a] prison sentence, fine, and restitution, which he
              was exposed to in case of a trial, the [c]ourt finds that
              it would be highly unlikely that the [defendant] would
              proceed to trial . . . as the chances of success on the
              merits of the case were extremely low.

This appeal followed.

        On appeal, defendant raises the following points for our consideration:

              POINT I3
              THE PCR COURT ERRED IN DENYING THE
              DEFENDANT'S PETITION FOR PCR WITHOUT
              AFFORDING HIM AN EVIDENTIARY HEARING
              TO FULLY ADDRESS HIS CONTENTION THAT HE
              FAILED TO RECEIVE ADEQUATE LEGAL
              REPRESENTATION FROM TRIAL COUNSEL AS A
              RESULT OF COUNSEL'S FAILURE TO APPRISE
              HIM REGARDING THE EXISTENCE OF CERTAIN
              DEFENSES TO THE RESTITUTION ISSUE.

              POINT II
              THE PCR COURT ERRED IN DENYING RELIEF
              WITHOUT     A   HEARING   BECAUSE    THE
              DEFENDANT       PRODUCED      SUFFICIENT
              EVIDENCE THAT IF BELIEVED, WOULD AT
              MINIMUM ESTABLISH A PRIMA FACIE CASE OF
              IN[]EFFECTIVE ASSISTANCE OF COUNSEL, AND
              THE COURT'S FINDINGS TO THE CONTRARY
              PARTAKE OF FACTFINDING AND CREDIBILITY

3
    We have consolidated Points I and II in defendant's brief for clarity.
                                                                             A-1592-16T4
                                          9
            DETERMINATIONS THAT HAVE NO PLACE
            WITHOUT A PLENARY HEARING.

            POINT III
            THE COURT ERRED IN INVOKING [RULE] 3:22-4
            TO PROCEDURALLY BAR THIS PCR.

      Merely raising a claim for PCR does not entitle the defendant to an

evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.

1999).   Rather, trial courts should grant evidentiary hearings and make a

determination on the merits only if the defendant has presented a prima facie

claim of ineffective assistance of counsel, material issues of disputed fact lie

outside the record, and resolution of those issues necessitates a hearing. R. 3:22-

10(b); State v. Porter, 216 N.J. 343, 355 (2013). We review a judge's decision

to deny a PCR petition without an evidentiary hearing for abuse of discretion.

See R. 3:22-10; State v. Preciose, 129 N.J. 451, 462 (1992).

      To establish a prima facie claim of ineffective assistance of counsel,

            a defendant must satisfy two prongs. First, he must
            demonstrate that counsel made errors "so serious that
            counsel was not functioning as the 'counsel' guaranteed
            the defendant by the Sixth Amendment." An attorney's
            representation is deficient when it "[falls] below an
            objective standard of reasonableness."

            Second, a defendant "must show that the deficient
            performance prejudiced the defense." . . . The prejudice
            standard is met if there is "a reasonable probability that,
            but for counsel's unprofessional errors, the result of the

                                                                          A-1592-16T4
                                       10
            proceeding would have been different." A "reasonable
            probability" simply means a "probability sufficient to
            undermine confidence in the outcome" of the
            proceeding.

            [State v. O'Neil, 219 N.J. 598, 611 (2014) (alteration in
            original) (quoting Strickland, 466 U.S. at 687-88, 694
            and Fritz, 105 N.J. at 52).]

      To set aside a guilty plea based on ineffective assistance of counsel, "a

defendant must show that (i) counsel's assistance was not 'within the range of

competence demanded of attorneys in criminal cases;' and (ii) 'that there is a

reasonable probability that, but for counsel's errors, [the defendant] would not

have pled guilty and would have insisted on going to trial.'" State v. Nuñez-

Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v.

DiFrisco, 137 N.J. 434, 457 (1994)). In other words, the defendant must show

that not pleading guilty would have been "rational under the circumstances."

State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014) (quoting Padilla

v. Kentucky, 559 U.S. 356, 372 (2010)).

      Applying these principles, we conclude that defendant failed to establish

a prima facie case of ineffective assistance of counsel to warrant PCR or an

evidentiary hearing because the existing record was sufficient to resolve the

claims presented.   We affirm substantially for the reasons the PCR court

expressed in its comprehensive written opinion. Like the PCR court, we are

                                                                        A-1592-16T4
                                      11
unpersuaded that defendant would have taken the risk of going to trial on all the

counts charged in the indictment in light of the strength of the State's case and

the more severe sentence he would have surely faced if he was convicted of a

second-degree offense.     Because the PCR court addressed the merits of

defendant's claims, and correctly determined that defendant had not been denied

the effective assistance of counsel, we need not address defendant's argument

that the court erred by finding that his claims were barred by Rule 3:22-4.

      Affirmed.




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                                      12
