                                 NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3592-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FUQUAN STRIBLING, a/k/a
FUQUAM SCRIBLING, JOHN
L. MURRAY, FU SCRIBLING,
FUGUAN SCRIBLING, FUQUAN
L. STRIBLING, FUGUAN
T. STRIBLING, FUQUAN L.
SCRIBLING, and FUGUAN T.
STRIBING,

     Defendant-Appellant.
__________________________________

                   Submitted October 22, 2018 – Decided November 1, 2018

                   Before Judges Sabatino and Mitterhoff.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 09-11-0986.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Steven M. Gilson, Designated Counsel, on
                   the briefs).
            Michael A. Monahan, Acting Union County
            Prosecutor, attorney for respondent (Michele C.
            Buckley, Special Deputy Attorney General/Acting
            Assistant Prosecutor, of counsel and on the briefs).

PER CURIAM

      Defendant Fuquan Stribling, who a jury in 2012 found guilty of various

crimes, appeals the trial court's February 7, 2017 order denying his petition for

post-conviction relief ("PCR") without an evidentiary hearing. The primary

issue raised by defendant is that his trial counsel were ineffective. Among other

things, defendant contends that his counsel's fee arrangements concerning his

criminal defense and a related civil lawsuit caused them to give short shrift to

the criminal matter.

      For the reasons that follow, we remand this matter for an evidentiary

hearing, with testimony exploring in greater depth the fee arrangements and

whether they materially prejudiced defendant in his criminal case.

                                       I.

      In March 2012, defendant was tried by a jury on an eleven-count

indictment, including eight counts of aggravated assault, N.J.S.A. 2C:12-1(b),

for using his vehicle to strike or attempt to strike Hillside Towns hip police

officers, along with one count of second-degree eluding, N.J.S.A. 2C:29-2(b),

one count of fourth-degree obstructing the administration of law, N.J.S.A.

                                                                         A-3592-16T1
                                       2
2C:29-1, and one count of third-degree possession of a weapon for an unlawful

purpose, in violation of N.J.S.A. 2C:39-4(d).

      The charges arose out of an incident that occurred in the early morning

hours of March 30, 2009, in which, after two Hillside police officers attempted

a traffic stop, defendant drove at them, injuring one officer, and then the officers

began firing their weapons at defendant. Defendant then rammed his vehicle

repeatedly into a second police vehicle that had arrived as backup. The second

set of police officers also fired rounds at defendant, who was ultimately struck

by seven bullets, suffering gunshot wounds to the arm, neck, back, chest,

shoulder, and leg.

      The jury acquitted defendant on count seven, one of the aggravated assault

counts, but found him guilty of the remaining ten charges. The court sentenced

defendant to a twenty-year aggregate term of incarceration with an eighty-five

percent period of parole ineligibility under the No Early Release Act ("NERA"),

N.J.S.A. 2C:43-7.2. Defendant appealed his convictions and sentence, which

we affirmed in an unpublished opinion, State v. Stribling, No. A-1147-12 (App.

Div. Apr. 23, 2015). The Supreme Court denied certification. State v. Stribling,

222 N.J. 311 (2015).




                                                                            A-3592-16T1
                                         3
      Thereafter, in February 2016, defendant filed a petition for PCR, alleging

that he had received ineffective assistance of trial counsel. Defendant had been

represented throughout his criminal trial by two private attorneys: Vincent C.

Scoca and Maurice Snipes. Although the record is not entirely clear, it appears

that Scoca and Snipes were not law partners but shared an office address.

      In his sworn affidavit in support of his petition, defendant alleged "there

was a conflict of interest" in his counsels' representation, because his attorneys

had also represented him in a civil lawsuit against Union County and other

governmental defendants. Defendant asserted his attorneys did not actually file

suit, and he did not pay his counsel "one penny" for representing him because

they allegedly expected "to be paid from [the] lawsuit."

      Defendant further alleged that his attorneys failed to present him "with all

the material information he needed in making his decision to accept a plea offer

or exercise his right to trial by jury" and failed to advise him that he was subject

to an extended term sentence. Defendant also alleged that he only met his

attorneys once prior to trial, that they failed to properly investigate his claim,

and that they made other trial errors.

      Relying on documents from the State's appendix to its brief opposing

defendant's petition, the PCR judge found that on June 7, 2011, Snipes filed a


                                                                            A-3592-16T1
                                         4
civil action in the Law Division on defendant's behalf against Union County,

Hillside Township, the Hillside Police Department, and various police officers

who had been involved in the shooting. The civil action was removed to federal

court in October 2011, and then dismissed with prejudice by stipulation of the

parties in June 2012.

      From his review of the submitted written materials, the PCR judge also

determined that, with respect to the fee arrangement, Scoca, defendant's lead

criminal attorney, who examined most of the witnesses and presented the

opening and closing statements at the criminal trial, "had absolutely no

involvement or interest in the outcome of defendant's civil matter." Although

the judge recognized Snipes was involved in the criminal matter, the judge found

that defendant failed to demonstrate how Snipes' joint representation of

defendant in the two cases prejudiced him or posed a conflict of interest.

      The PCR judge similarly rejected defendant's claim that his former

counsel failed to conduct an adequate investigation as lacking in factual support.

Finding that defendant had failed to set forth a prima facie basis for relief, the

judge denied PCR without an evidentiary hearing.




                                                                          A-3592-16T1
                                        5
                                         II.

      On the present appeal from the PCR denial, defendant raises the following

points in his initial brief:

             THIS MATTER MUST BE REMANDED FOR AN
             EVIDENTIARY       HEARING       BECAUSE
             DEFENDANT ESTABLISHED A PRIMA FACIE
             CASE OF TRIAL COUNSEL'S INEFFECTIVENESS.

             A. There Existed A Conflict Of Interest Regarding
             Trial Counsel's Representation.

             B. Trial Counsel Failed To Adequately Consult With
             Defendant And To Conduct An Adequate Investigation.

      Fundamentally, defendant claims that the PCR court erred by denying him

an evidentiary hearing, because he established a prima facie showing of

ineffective assistance of counsel.

      First, defendant alleges his attorneys' contingent interest in the civil action

and lack of compensation in the criminal matter was a conflict of interest that

compromised counsels' representation of him.           Defendant argues that an

evidentiary hearing was warranted to determine whether counsels' dual

representation of defendant in the criminal and civil matters and the associated

fee arrangements was a per se conflict of interest, in which prejudice should be

presumed.



                                                                             A-3592-16T1
                                         6
      Second, defendant raises a related claim that his trial attorneys failed to

consult with him and to investigate on his behalf and that, even if there was no

contingent fee arrangement, an evidentiary hearing was warranted to determine

whether the attorneys' lack of a paid fee led to counsel's alleged failure to

adequately investigate the criminal case. 1

                                         A.

      We are guided by certain well-settled general principles. "Both the United

States Constitution and New Jersey Constitution guarantee every person accused

of a crime the right to the assistance of counsel." State v. Cottle, 194 N.J. 449,

466 (2008). See U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. "Inherent in

the right to the assistance of counsel is the right to effective counsel." Cottle,

194 N.J. at 466. To prevail on an ineffective assistance of counsel claim, a PCR

petitioner bears the burden of proving both prongs of the test set forth by the



1
   Defendant alleged a third claim of attorney error that was dismissed as
procedurally barred. Because defendant does not challenge that dismissal, the
third claim is waived. See { TA \l "Drinker Biddle & Reath LLP v. New Jersey
Dept.     of     Law     and     Public       Safety,     Division      of     Law,
421       N.J.      Super.      489          (App.       Div.        2011)"        \s
"WSFTA_810b78b085b54a17bdb3821f48fa6869" \c 3 }Drinker Biddle & Reath
LLP v. New Jersey Dep't of Law & Pub. Safety, Div. of Law, 421 N.J. Super.
489, 496 n.5 (App. Div. 2011) (citing Pressler & Verniero, Current N.J. Court
Rules, cmt. 4 on R. 2:6–2 (2011) ("It is, of course, clear that an issue not briefed
is deemed waived.")).
                                                                             A-3592-16T1
                                         7
U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 694 (1984), and

adopted by our State in State v. Fritz, 105 N.J. 42, 58 (1987).

      "To establish the first prong of the test, defendant must prove that

counsel's representation fell below an objective standard of reasonableness,

measured by prevailing professional norms." State v. Sheika, 337 N.J. Super.

228, 241 (App. Div. 2001). "To prove the second prong, defendant must show

'there is a reasonable probability that, but for counsel's unprofessional errors,

the result of the proceeding would have been different.'"            Ibid. (quoting

Strickland, 466 U.S. at 694).

      In determining whether defendant has met his burden of making a prima

facie showing of ineffective assistance, the facts should be viewed in the light

"most favorabl[e] to defendant" and the court should "assum[e] defendant's

statements to be true." State v. Brewster, 429 N.J. Super. 387, 396 (App. Div.

2013). Accord State v. Preciose, 129 N.J. 451, 463-64 (1992). However, if the

PCR court "perceives that holding an evidentiary hearing will not aid the court's

analysis of whether the defendant is entitled to post-conviction relief . . . or that

the defendant's allegations are too vague, conclusory, or speculative to warrant

an evidentiary hearing . . . then an evidentiary hearing need not be granted."

State v. Marshall, 148 N.J. 89, 158 (1997); see also R. 3:22-10(b). "[D]efendant


                                                                             A-3592-16T1
                                         8
must allege specific facts and evidence supporting his allegations." State v.

Porter, 216 N.J. 343, 355 (2013).

      Although ineffective assistance of counsel claims are "more likely to

require an evidentiary hearing" than other PCR claims, to obtain such a hearing,

the defendant must first demonstrate a prima facie case of ineffective assistance

of counsel and a reasonable likelihood of success on the merits of both prongs

of the Strickland/Fritz test. Preciose, 129 N.J. at 462-63. "The judge deciding

a PCR claim should conduct an evidentiary hearing when there are disputed

issues of material fact related to the defendant’s entitlement to PCR, particularly

when the dispute regards events and conversations that occur off the record or

outside the presence of the judge." Porter, 216 N.J. at 354.

      The denial of an evidentiary hearing for a PCR petition is reviewed for an

abuse of discretion. Brewster, 429 N.J. Super. at 401. However, reviewing

courts "may exercise de novo review over the factual inferences the trial court

has drawn from the documentary record." State v. O'Donnell, 435 N.J. Super.

351, 373 (App. Div. 2014).

      If the prejudice prong is not met, "the Sixth Amendment guarantee is

generally not implicated." United States v. Cronic, 466 U.S. 648, 658 (1984).

"There are, however, circumstances that are so likely to prejudice the accused


                                                                           A-3592-16T1
                                        9
that the cost of litigating their effect in a particular case is unjustified." Ibid.

"Thus, only when surrounding circumstances justify a presumption of

ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into

counsel's actual performance at trial" under prong two of the Strickland/Fritz

test. Id. at 662. Such circumstances include the "[a]ctual or constructive denial

of the assistance of counsel altogether," and "when counsel is burdened by an

actual conflict of interest." Strickland, 466 U.S. at 692. The presumption of

prejudice is appropriate in the latter context specifically because "it is difficult

to measure the precise effect on the defense of representation corrupted by

conflicting interests." Ibid.

                                        B.

      With these general principles in mind, we turn to the conflict of interest

issues that defendant has posed.

      "Effective counsel must provide the client with undivided loyalty and

representation 'untrammeled and unimpaired' by conflicting interests." State v.

Norman, 151 N.J. 5, 23 (1997) (quoting State v. Bellucci, 81 N.J. 531, 538

(1980)). "There is no greater impairment of a defendant's constitutional right to

counsel than that which can occur when his attorney is serving conflicting

interests. The resulting representation may be more harmful than the complete


                                                                            A-3592-16T1
                                        10
absence of a lawyer." Bellucci, 81 N.J. at 538. Accord Sheika, 337 N.J. Super.

at 244.

      In the federal courts, the mere "possibility" of a conflict of interest "is

insufficient to impugn a criminal conviction." Cuyler v. Sullivan, 446 U.S. 335,

350 (1980). To avoid the prejudice inquiry under prong two of Strickland, a

defendant bringing an ineffective assistance of counsel claim under the Sixth

Amendment must prove an "actual" rather than a mere "potential" conflict of

interest and also that "the conflict adversely affected counsel's performance."

Mickens v. Taylor, 535 U.S. 162, 170 (2002).

      New Jersey courts, however, have departed from their federal counterparts

and "have exhibited a much lower tolerance for conflict-ridden representation

under the New Jersey Constitution than federal courts have under the United

States Constitution[,]" and have accordingly found that "certain attorney

conflicts render the representation per se ineffective[,]" warranting a

presumption of prejudice. Cottle, 194 N.J. at 470. See also State v. Drisco, 355

N.J. Super. 283, 292 (App. Div. 2002) ("New Jersey's constitutional standard

thus provides broader protection against conflicts than does the Federal

Constitution.").




                                                                         A-3592-16T1
                                      11
      Under New Jersey's "two-tiered approach in analyzing whether a conflict

of interest has deprived a defendant of his state constitutional right to the

effective assistance of counsel[,]" courts must first determine whether the

alleged conflict is a "per se conflict." Cottle, 194 N.J. at 467. If so, "prejudice

is presumed in the absence of a valid waiver, and the reversal of a conviction is

mandated." Ibid. If the alleged conflict is not a per se conflict, "the potential

or actual conflict of interest must be evaluated and, if significant, a great

likelihood of prejudice must be shown in that particular case to establish

constitutionally defective representation of counsel." Norman, 151 N.J. at 25.

A "great likelihood of prejudice" is itself a lower standard than prong two of the

Strickland/Fritz test, which requires showing that counsel's errors actually

"prejudiced defendant." Fritz, 105 N.J. at 66.

      The "per se analysis is reserved for those cases in which counsel's

performance is so likely to prejudice the accused that it is tantamount to a

complete denial of counsel." State v. Savage, 120 N.J. 594, 616 (1990). See

also State v. Miller, 216 N.J. 40, 70 (2013) ("[O]nly an extraordinary deprivation

of the assistance of counsel triggers a presumption of prejudice."). For a conflict

of interest to trigger a per se deprivation of the right to counsel there must be an

"overriding concern of divided loyalties." Cottle, 194 N.J. at 467 n.8. For these


                                                                            A-3592-16T1
                                        12
reasons, our Supreme Court "has never presumed prejudice . . . in a

situation . . . in which the defendant was represented by competent counsel with

no conflict of interest." Miller, 216 N.J. at 60-61.

      Courts have generally "limited the per se conflict on constitutional

grounds to cases in which 'a private attorney, or any lawyer associated with that

attorney, is involved in simultaneous dual representations of codefendants.'"

Cottle, 194 N.J. at 467 (quoting Norman, 151 N.J. at 24-25). See, e.g., State ex

rel. S.G., 175 N.J. 132, 134–35 (2003) (holding that a law firm's simultaneous

representation of a shooting suspect and the estate of the shooting victim

constituted an unwaivable conflict of interest); State v. Murray, 162 N.J. 240,

250 (2000) (holding that the defendant made a prima facie showing of a per se

conflict warranting an evidentiary hearing, where the attorneys for defendant

and a codefendant shared "office space and a phone number"); Bellucci, 81 N.J.

at 544 ("Whenever the same counsel including partners or office associates

represents more than one [co]defendant, both the attorney and the trial court

must explain the possible consequences of joint representation to each

defendant.").

                                        C.




                                                                         A-3592-16T1
                                       13
      After the briefs were filed in this appeal, we asked the parties to address

"whether Rule of Professional Conduct ("RPC") 1.5(d) (prohibiting counsel

from representing a client on a contingent fee basis in a criminal case) has any

bearing on defendant’s PCR claims," and to explain:

            (1) whether Mr. Snipes represented defendant in the
            related civil matter on a contingency basis;

            (2) the fee arrangement covering Mr. Snipes' time and
            services he expended in assisting Mr. Scoca in the
            criminal case; and

            (3) whether the retainer agreements, any side letters,
            any other documents, or oral communications reflect
            any promise or expectation that, as defendant alleges, a
            recovery from the civil case would be applied in full or
            in part to compensate Mr. Scoca for his otherwise
            gratuitous representation of defendant in the criminal
            matter.

      Both sides agree that the record contains no definitive answers to the

above questions. Defendant seeks a remand for an evidentiary hearing to resolve

them. The State urges we affirm the court's dismissal of the petition without an

evidentiary hearing, arguing that the court properly held that defendant failed to

make a prima facie showing of ineffective assistance, thereby making a hearing

unnecessary.

      The RPC provision at issue provides that "[a] lawyer shall not enter into

an arrangement for, charge, or collect . . . a contingent fee for representing a

                                                                          A-3592-16T1
                                       14
defendant in a criminal case." RPC 1.5(d)(2). See also Restatement (First) of

Contracts § 542 ("A bargain to conduct a criminal case . . . in consideration of a

promise of a fee contingent on success is illegal.").

      Defendant argues that the contingency agreement in the civil case resulted

in an absence of compensation for either attorney in the criminal case, which he

asserts was an "inherent conflict of interest" that violated RPC 1.5(d) and public

policy and established a prima facie basis for PCR, necessitating an evidentiary

hearing.

      The State concedes in its response that "if counsel represented defendant

in his criminal matter on a contingency basis, that factor may bear on defendant's

PCR claims," particularly whether counsel's "purported financial interest in the

success of defendant's civil case" discouraged counsel from "effectively

explor[ing] all possible resolutions in defendant's criminal case." (emphasis

added).    The State contends that the court properly denied an evidentiary

hearing, however, because defendant failed to show that counsel's fee for the

criminal matter was actually contingent on the civil case, rather than the

alternative possibility that Scoca may have completely and unconditionally

"waived his fee" in the criminal case – which defendant conceded would have

been permissible. Given the ambiguity, the State argues, defendant failed to


                                                                          A-3592-16T1
                                       15
carry his burden of making a prima facie claim of ineffective assistance of

counsel, calling for affirmance of the order denying the claim without an

evidentiary hearing.

      A conflict of interest generally exists under our Rules of Professional

Responsibility if "the representation of one client will be directly adverse to

another client," or if "there is a significant risk that the representation of one or

more clients will be materially limited by the lawyer's responsibilities to another

client, a former client, or a third person or by a personal interest of the lawyer."

RPC 1.7(a)(1) to (2) (emphasis added).

      Here, Scoca and Snipes represented defendant in his criminal case and

Snipes also represented defendant as a civil plaintiff arising out of the same

events. Because the attorneys represented defendant's own interests in both

matters, their representations of that singular client were not "adverse." RPC

1.7(a). However, defendant suggests there existed a "significant risk that the

representation of" defendant could "be materially limited . . . by a personal

interest of the lawyer," because of the alleged contingent fee arrangement in the

civil matter. RPC 1.7(a).

      Defendant alleges in his sworn PCR petition that Scoca and Snipes

received no fee for representing defendant in the criminal case because they


                                                                             A-3592-16T1
                                        16
supposedly had expected to be compensated out of damages that might be

awarded to him from the civil suit.

      Assuming for the sake of discussion that the attorneys did enter into a

contingent fee arrangement extending to the criminal matter, in alleged violation

of RPC 1.5(d)(2), and that their alleged preoccupation with the civil case

actually led to insufficient investigation and attention to the criminal case,

defendant made a prima facie showing that the representation fell "below an

objective standard of reasonableness, measured by prevailing professional

norms." Sheika, 337 N.J. Super. at 241.

      The PCR court's conclusive finding that Scoca "had no interest, financial

or otherwise, in the outcome of the civil case" did not expressly account for

defendant's sworn statement alleging that "they" – referring to both Scoca and

Snipes – were to be paid from the proceeds of the civil lawsuit for the combined

work they performed in the two matters.       In deciding whether to grant an

evidentiary hearing, we bear in mind defendant's sworn (albeit undocumented)

allegation that such a fee arrangement existed between him and his attorneys.

See Brewster, 429 N.J. Super. at 396.

      Given the prospect, squarely presented in the pleadings, that counsels'

representation of defendant was prejudiced in some manner by their financial


                                                                         A-3592-16T1
                                        17
interest in defendant's civil case and its alleged nexus with the criminal case,

and the murkiness of the existing record devoid of any testimony, the matter is

best remanded for an evidentiary hearing "for further exploration of the facts

and development of the record." Sheika, 337 N.J. Super. at 246-47.

      On remand, we anticipate the PCR court will consider testimony from the

two attorneys who represented defendant, and perhaps defendant himself if he

so chooses, and make associated credibility findings.          The pertinent fee

agreement(s) also should be produced and analyzed.

      After sifting that additional evidence, we ask that the trial court provide a

decision that addresses in greater depth the issues of alleged conflict, deficient

performance, and prejudice. In calling for this hearing, we by no means intimate

any view as to whether the fee arrangement was actually inappropriate or

whether counsel engaged in deficient performance that harmed their client's

interests.

      Remanded for an evidentiary hearing. We do not retain jurisdiction.




                                                                           A-3592-16T1
                                       18
