                                 NOT FOR PUBLICATION WITHOUT THE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-2868-16T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ALLAN O. PELCAK, JR.,

     Defendant-Appellant.
______________________________

                   Submitted September 24, 2018 – Decided October 31, 2018

                   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
      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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                                      2
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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                                        3
      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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                                        4
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."




                                                                           A-2868-16T4
                                        5
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.




                                                                             A-2868-16T4
                                        6
      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


                                                                          A-2868-16T4
                                        7
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 Strickland 1 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).
                                                                          A-2868-16T4
                                        8
      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).


                                                                           A-2868-16T4
                                         9
      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




                                                                           A-2868-16T4
                                       10
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.


                                                                             A-2868-16T4
                                        11
      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 ,


                                                                         A-2868-16T4
                                       12
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


                                                                          A-2868-16T4
                                       13
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


                                                                         A-2868-16T4
                                       14
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 ex-

wife. 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


                                                                             A-2868-16T4
                                        15
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.




                                                                          A-2868-16T4
                                       16
