                        NOT FOR PUBLICATION WITHOUT THE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-4208-15T1

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CHARLES H. HOENS, III,

     Defendant-Appellant.
________________________________

              Argued April 24, 2017 – Decided           May 4, 2017

              Before Judges Sabatino, Currier and Geiger.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              14-07-0836.

              Edward C. Bertucio argued the cause for
              appellant (Hobbie, Corrigan & Bertucio, P.C.,
              attorneys; Mr. Bertucio, of counsel and on the
              briefs; Elyse S. Schindel, on the briefs).

              Brian D. Gillet, Deputy First Assistant
              Prosecutor, argued the cause for respondent
              (Andrew C. Carey, Middlesex County Prosecutor,
              attorney;    David   M.   Liston,    Assistant
              Prosecutor, of counsel and on the brief).

PER CURIAM

        Defendant Charles Hoens, III, appeals the trial court's June

1, 2016 order denying his post-sentencing motion to withdraw his
guilty plea to second-degree theft, N.J.S.A. 2C:20-3, and second-

degree official misconduct, N.J.S.A. 2C:30-2.                  The thrust of

defendant's motion is that he should now be permitted to withdraw

his plea because the two attorneys who successively represented

him before and during the plea entry and at sentencing were

ineffective and failed to adequately safeguard his interests in

the criminal process.

     For the reasons that follow, we remand for an evidentiary

hearing.   We do so in light of the discrete allegations presented,

and the trial court's key assumption, which may have been legally

mistaken, that defendant could tenably assert in a post-conviction

relief ("PCR") petition claims of constitutional ineffectiveness

against his first attorney concerning his representation before

he was charged or indicted.

                                      I.

     Since    we   are   remanding    this     matter   for   further   factual

development and legal analysis, we need not present the underlying

chronology in a comprehensive or conclusive manner.             The following

will suffice for purposes of this opinion.

     Defendant     was   employed    by    the   Fire   Commission   of     South

Brunswick Township ("the Commission").            In that capacity, he had

access to the bank account of Fire District Number 3 ("the Fire

District").        During   the     relevant     timeframe,    defendant       was

                                       2                                  A-4208-15T1
personally experiencing financial difficulties with his private

business.      Due to those difficulties, defendant began periodically

diverting sums of money from the Fire District's bank account to

his personal bank account.          Defendant alleges that he intended to

repay    the     diverted       amounts   once    his    financial      situation

stabilized.

       Recognizing that the Commission is a public entity subject

to audit, and that an upcoming audit would inevitably reveal his

diversion of funds, defendant retained the services of a private

criminal defense attorney ("the first attorney").                  According to

the affidavit defendant submitted in support of his plea withdrawal

motion, defendant admitted to his first attorney that he had

diverted what he estimated to be approximately $90,000 from the

Fire    District's       bank    account.        Allegedly     hoping    to   make

restitution, defendant provided the first attorney with $90,000

out of funds that defendant had recently inherited.                     The first

attorney deposited the $90,000 into an escrow account.

       According    to    defendant's       affidavit,   his    first    attorney

advised him that he "should go to the Middlesex County Prosecutor's

Office and made a statement[,]" even though, as defendant contends,

the Prosecutor's Office "had no information about this matter and

had not begun an investigation against [him]."               Defendant further

attested that his first attorney "also indicated that he would

                                          3                               A-4208-15T1
negotiate a plea deal with the State that would involve no jail

time and would include payment of $90,000 as full restitution in

this matter[.]"

       The first attorney arranged a meeting with the Prosecutor's

office, to which he accompanied defendant.               The meeting occurred

on December 19, 2012.             At that session, defendant was given

Miranda1 warnings, waived his right to remain silent, and was then

questioned by an investigator during a video-recorded interview.

During that interview, which was later transcribed and made part

of the present record, defendant admitted that he had diverted

funds from the Fire District's bank accounts at various times in

2011 and 2012.        He also agreed to make restitution and resign as

a fire commissioner.

       According to defendant's affidavit, his first attorney "did

no    prior   investigation       and   did   not   obtain   a   formal   written

negotiation      as    to   the     State's    intention     with    regard      to

[defendant's] statement."          The attorney also allegedly "never did

any    subsequent     follow      up    investigation    after    [defendant's]

statement was given."

       More specifically, defendant contends:

              The only information I received [from his
              first attorney] was a reassurance that there

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).

                                          4                               A-4208-15T1
             was a "gentlemen's agreement" and that the
             deal between the State and myself would be to
             plead guilty to third degree theft in exchange
             for a sentence of straight, non-custodial
             probation without jail time and to pay $90,000
             in restitution and move on with my life
             . . . . With that understanding in mind, and
             because that information had been represented
             to me, I made [my] statement to the Middlesex
             County Prosecutor's Office.

The State denies, however, the existence of any such unwritten

"gentlemen's agreement."        In this regard, the State points out

that at the conclusion of defendant's recorded interview, the

investigator warned him that there would be consequences for the

actions to which defendant had confessed and that the investigator

would   be   forwarding   the   information       to   his    superiors.      The

investigator added "I can't promise you anything.                 I don't know

where they're going to go with this."               The transcript reflects

that    defendant   and   his   first       attorney   were    both   given   the

opportunity to put "anything else on the record" before the

recording ended, and they did not do so.               On December 19, 2013,

the    Prosecutor's   Office    issued      a   criminal     complaint   against

defendant, charging him with second-degree theft in a cumulative

sum of $695,795.46.

       Before defendant was indicted by a grand jury, the first

attorney moved to be relieved as counsel for reasons of non-payment

of fees.      In his supporting certification, the first attorney


                                        5                                A-4208-15T1
stated that the retainer defendant had paid to the attorney's law

firm "was set to address only representation during the [matter's]

investigative phase, and did not contemplate representation once

adversarial proceedings commenced."    The certification further

added that defendant's written retainer agreement was "limited to

the Investigation[,]" and that the retainer had been exhausted

since the time the criminal charges were filed.      Counsel also

referred to the $90,000 in the firm's escrow account, and the

court's oral direction to not dispense those funds without leave

of court.   The trial court granted the first attorney's motion to

be relieved.

     Meanwhile, on May 29, 2014, a grand jury issued a five-count

indictment against defendant, charging him with one count of

second-degree theft, N.J.S.A. 2C:20-3 (Count 1); two counts of

first-degree financial facilitation of criminal activity, N.J.S.A.

2C:21-25 (Counts 2 and 3); one count of second-degree official

misconduct, N.J.S.A. 2C:30-2 (Count 4); and one count of third-

degree pattern of official misconduct, N.J.S.A. 2C:30-7 (Count 5).

Defendant then requested representation from the Office of the

Public Defender.    A trial attorney ("the second attorney") was

assigned to represent him.

     Plea negotiations ensued, resulting in a written agreement

between defendant and the State dated November 10, 2014.        The

                                 6                         A-4208-15T1
agreement provided that defendant would plead guilty to counts one

(second-degree     theft)      and    four    (second-degree      official

misconduct), and the other three counts of the indictment would

be dismissed.     The State agreed to recommend at sentencing that

defendant receive a ten-year custodial term, with a five-year

period of parole ineligibility, with defendant having the right

to argue for a shorter term of five years.           Defendant also agreed

to execute a consent judgment at sentencing to be liable for

restitution in the recalculated sum of $736,847.75.

      Defendant appeared before the trial court on November 10,

2014, at which time his guilty plea was placed on the record.

During extensive questioning at that plea hearing, defendant, who

is a businessman with advanced degrees, repeatedly acknowledged

that he understood the terms of the plea agreement and was entering

into it voluntarily.

      About six months later, defendant appeared before a different

judge for sentencing.       As permitted by the plea agreement, the

court sentenced defendant to five years in prison (less than the

ten   years   advocated   by   the   State)   with    a   five-year    parole

ineligibility period.     In addition, defendant was ordered to make

restitution in the sum of $736,847.75, reflected on the consent

judgment.     Defendant was also ordered to pay customary fines and



                                     7                                A-4208-15T1
penalties,   and     was   permanently      disqualified    from    holding   any

public office in this State in the future.

      Defendant did not appeal his sentence.              Instead, he retained

new private counsel and filed the instant motion to withdraw his

guilty plea pursuant to Rules 3:9-2 and 3:9-3 and the withdrawal

factors of State v. Slater, 198 N.J. 145 (2009).                   As a critical

part of his arguments, defendant asserted that his first attorney

and   his   second    attorney   were       each,   for    different    reasons,

ineffective and violated his federal and state constitutional

rights under the precepts of Strickland v. Washington, 466 U.S.

668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 697 (1984) and

State v. Fritz, 105 N.J. 42 (1987).

      As to his first attorney, defendant argued that the attorney

was deficient in allowing him to make incriminating statements in

a recorded interview with the Prosecutor's Office without a written

agreement specifying how that statement could be used, and by

instead advising defendant that he was protected by an unwritten

alleged "gentlemen's agreement."              As to the second attorney,

defendant contends that the attorney coerced him into accepting

the terms of the plea negotiation, and also failed to argue at

sentencing that defendant should receive a sentence one degree

lower, as permitted in appropriate situations by State v. Rice,

425 N.J. Super. 375 (App. Div. 2012).

                                        8                                A-4208-15T1
     After considering these arguments and the State's opposition,

the motion judge (who had also been the sentencing judge in this

case2) denied defendant's motion without an evidentiary hearing.

The judge concluded that defendant had not shown a basis for relief

under the four criteria of Slater, supra.    In addition, the judge

noted in his May 19, 2016 oral ruling that defendant could pursue

relief in a future PCR proceeding in which matters outside the

existing record could be developed.   The judge further noted that,

to the extent defendant argued that the amount of court-ordered

restitution was excessive, defendant was free to file a motion to

seek to have the sum recalculated and an ability-to-pay hearing.

The court memorialized that right in its written corresponding

order, allowing defendant to submit his calculations as to the

proper amount of restitution to the prosecutor's office and that

if the prosecutor disagreed with these figures, defendant could

request a hearing on the issue.

                                II.

     This   appeal   ensued.   Defendant   presents   the   following

arguments for our consideration:

            THE TRIAL COURT ERRED IN DENYING APPELLANT'S
            MOTION TO WITHDRAW HIS GUILTY PLEA PURSUANT
            TO STATE V. SLATER AND STRICKLAND V.
            WASHINGTON. APPELLANT ENTERED A GUILTY PLEA

2 Both the plea judge and the sentencing/motion judge are now
retired.

                                  9                           A-4208-15T1
           INVOLUNTARILY AND AS THE RESULT OF THE
           INEFFECTIVE ASSISTANCE OF COUNSEL OF HIS TWO
           PRIOR ATTORNEYS.

           A.     THE TRIAL COURT ERRED IN DENYING
           APPELLANT'S MOTION TO WITHDRAW THE GUILTY PLEA
           PURSUANT TO STATE V. SLATER.

           B.     THE TRIAL COURT ERRED IN DENYING
           APPELLANT'S MOTION TO WITHDRAW THE GUILTY PLEA
           PURSUANT STRICKLAND V. WASHINGTON.

      The parties agree that defendant's motion to withdraw must

be evaluated under the four factors set forth by the Supreme Court

in Slater, supra.     Those factors are:

           (1) whether the defendant has asserted a
           colorable claim of innocence; (2) the nature
           and strength of defendant’s reasons for
           withdrawal; (3) the existence of a plea
           bargain; and (4) whether withdrawal would
           result in unfair prejudice to the State or
           unfair advantage to the accused.

           [Id. at 157-58].

None of these factors, including a colorable claim of innocence,

is required or dispositive.         Id. at 162; see also State v. Munroe,

210 N.J. 429, 442-43 (2012). As defendant acknowledges, the burden

of justifying a requested withdrawal is heavier where, as here,

the   motion   to   withdraw   is    made   after,   rather   than   before,

sentencing.     Slater, supra, 198 N.J. at 160; see also Munroe,

supra, 210 N.J. at 442-43.      Generally, the decision on whether to

grant or deny a motion to withdraw a plea rests in the "sound



                                      10                             A-4208-15T1
discretion" of the trial court.       Munroe, supra, 210 N.J. at 442;

see also Slater, supra, 198 N.J. at 156.

       We agree with the trial court that the first Slater factor

of "colorable claim of innocence" tips against defendant here.

Defendant concedes that he repeatedly diverted funds from the fire

district.     The only caveat he alleges is that his state of mind

in doing so was not sufficiently venal to satisfy the theft and

official misconduct statutes beyond a reasonable doubt.          He also

contests the quantification of the amount diverted, although he

has not yet offered a competing calculation.

       The third and fourth factors do not manifestly weigh in

defendant's favor.     As to the third factor, defendant's guilty

plea was entered pursuant to a negotiated agreement, although that

is the factor that "receives the least weight in the overall

analysis[.]"    Munroe, supra, 210 N.J. at 443.       As to the fourth

factor, the State surely will sustain some prejudice if the plea

were   withdrawn   post-sentencing,   although   we   presume   that   the

documentation of the financial accounts still exists and that

defendant's incriminatory recorded statement remains preserved in

audio form.

       The critical questions posed here arise under the second

Slater factor, i.e., "the nature and strength of defendant's

reasons for withdrawal."    Slater, supra, 198 N.J. at 159.       In his

                                 11                              A-4208-15T1
motion affidavit, defendant has detailed several reasons why his

first attorney was allegedly deficient in arranging the taped

interview with the Prosecutor's Office without any formal written

agreement to address the future uses of that recording.                   His

assertion that his first attorney advised him of a so-called

"gentlemen's    agreement"    limiting   his    criminal       exposure    is

presently unrefuted, at least as to the alleged advice itself.             We

simply do not know what the first attorney would have to say on

the subject and what, if any, documentation exists in the first

attorney's files that might refute defendant's sworn assertion

about what he was told.

     Analysis   of   the   second   factor   becomes    more    problematic

because the trial court may have been under a possibly mistaken

assumption that defendant could have, at least as a matter of law,

pursued claims of ineffectiveness against his first attorney for

allegedly deficient representation occurring before he was ever

charged.   As the State points out in its brief, the constitutional

right to representation generally is not triggered until a criminal

defendant is formally charged.       See Kirby v. Illinois, 406 U.S.

682, 688-89, 92 S. Ct. 1877, 1881-82, 32 L. Ed. 2d 411, 417 (1972);

State v. Sanchez, 129 N.J. 261, 265 (1992).            In a case we found

and provided to counsel before oral argument, the Second Circuit

Court of Appeals in Claudio v. Scully, 982 F.2d 798, 802 (2d Cir.

                                    12                              A-4208-15T1
1992), held that there is no constitutional right under the Sixth

Amendment to a defendant for allegedly deficient representation

by a criminal defense attorney who took his client to police for

questioning before charges were ever filed against that defendant.

       Our New Jersey courts have yet to address the specific issue

posed in Claudio.    At a minimum, without deciding that legal issue

on appeal at this time, there appears to be substantial doubt that

claims of ineffectiveness are viable for missteps by defense

counsel before charges are ever filed.       The motion judge thus may

have   incorrectly   presumed   that   PCR   is   a   viable   option   for

defendant, at least with respect to the first attorney.          Although

the motion judge's remarks on the record about PCR may have solely

concerned the second attorney, whose representation was post-

indictment, we cannot be confident that the motion judge implicitly

assumed that PCR was available to raise ineffectiveness claims

concerning both attorneys.      See State v. Brito, 345 N.J. Super.

228, 230 (App. Div. 2001) (remanding a case where the trial court

"operat[ed] under a misapprehension as to the nature of the

proceedings before it").

       Under these discrete circumstances, we deem it preferable for

this matter to be remanded for the trial court to conduct an

evidentiary hearing to explore the pertinent factual issues in

more depth, including taking testimony from defendant and, if

                                  13                               A-4208-15T1
feasible, his two prior counsel, and considering any relevant

documents      from   their    prior    representation         addressing      the

assertions made in defendant's affidavit.               The trial court shall

then reevaluate the Slater factors, particularly under the second

prong.      Although the focus of our concerns relates mainly with the

first attorney, we decline to address the second attorney's conduct

at   this    time   and   instead   defer   that   to    the   overall   mix    of

considerations on remand.           The trial court shall also consider,

in the first instance, the constitutional issues posed, to the

extent the court finds it necessary to reach them in its analysis.

      Remanded      for   further    proceedings    consistent      with     this

opinion.      We do not retain jurisdiction.




                                       14                                A-4208-15T1
