                        NOT FOR PUBLICATION WITHOUT THE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-2478-15T1

RONALD SASALA,

        Plaintiff-Appellant,

v.

STATE OF NEW JERSEY; STATE OF
NEW JERSEY, DEPARTMENT OF THE
TREASURY; OFFICE OF THE
MIDDLESEX COUNTY PUBLIC DEFENDER'S
OFFICE; RICHARD D. BARKER; HOWARD
BARMAN; and JOSEPH M. MAZRAANI,

     Defendants-Respondents.
________________________________

              Argued September 27, 2017 – Decided July 25, 2018

              Before Judges Fuentes, Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No. L-
              3532-14.

              Audwin F. Levasseur argued the cause for
              appellant (Thomas R. Ashley, attorney; Thomas
              R. Ashley, on the brief).

              Ashley Gagnon, Deputy Attorney General, argued
              the cause for respondents (Christopher S.
              Porrino, Attorney General, attorney; Lisa A.
              Puglisi, Assistant Attorney General, of
              counsel; Ashley Gagnon, on the brief).

PER CURIAM
     Plaintiff Ronald Sasala filed a civil complaint against the

State of New Jersey, Department of the Treasury, the Middlesex

County Public Defender's Office, Deputy Public Defender Richard

D. Barker, Assistant Deputy Public Defender Howard Barman, and

Assistant Deputy Public Defender Joseph M. Mazraani,1 alleging

breach of contract, legal malpractice, and seeking exoneration

damages pursuant to N.J.S.A. 52:4C-1 to -7.         This civil action is

predicated on the material facts that formed the basis for the

disposition of an underlying criminal prosecution.            We will thus

describe   the   procedural   history   of   the   criminal   case    before

directly addressing the issues related to this civil litigation.

                                   I

     On May 22, 2007, a Middlesex County Grand Jury returned an

indictment       against       Sasala        charging         him        with

three counts of first-degree carjacking, N.J.S.A. 2C:15-2, second-

degree kidnapping, N.J.S.A. 2C:13-1(b), and fourth-degree false

swearing, N.J.S.A. 2C:28-2(a).      Assistant Deputy Public Defender

Howard Barman represented Sasala in this case.            The State was



1
  At all times relevant to this case, these attorneys were employed
by the Office of the Public Defender established by the Legislature
under N.J.S.A. 2A:158A-1 to -25.       The mission of the Public
Defender is "to provide for the realization of the constitutional
guarantees of counsel in criminal cases for indigent defendants
. . . ." N.J.S.A. 2A:158A-1.


                                   2                                 A-2478-15T1
represented by Assistant Prosecutor Thomas Daniel Carver, Jr., of

the Middlesex County Prosecutor's Office.         At a deposition taken

on April 25, 2015, in connection to this civil action, Carver

testified that the first plea offer he made to Sasala to resolve

all of the pending criminal charges was for him to plead guilty

to one count of first-degree carjacking. The State would recommend

that the court sentence him to a term of twenty years, subject to

an eighty-five percent period of parole ineligibility and five

years of parole supervision as mandated by the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2.       Sasala rejected this plea offer.

     Represented     by   Barman,   Sasala   entered   into   a   negotiated

agreement with the State on May 1, 2008, through which he agreed

to plead guilty to second-degree kidnapping.            In exchange, the

State agreed to dismiss the remaining counts in the indictment and

recommend that the court sentence defendant to a term of eight

years,     subject   to   an   eighty-five   percent   period     of    parole

ineligibility and three years of parole supervision, as mandated

by NERA.    At his deposition taken on June 2, 2015, Barman provided

the following explanation for his decision to advise Sasala to

accept the State's plea offer:

             [H]e wanted to plead to theft of a car, the
             State was not willing to give him that, so the
             discussion between him and I was[:] "If you
             go to trial you have the videotape [of the
             incident], you have the pregnant victim who's

                                      3                                A-2478-15T1
            on her knees next to the car, and you say you
            didn't push her.[2] The only way I put that on
            is if you testify, and if you testify your
            prior record comes out.    That's a difficult
            situation.

      After the plea hearing, Sasala informed Barman that he wanted

to withdraw his guilty plea. Faced with this conflict of interest,

the Public Defender's Office assigned pool attorney3 Joseph M.

Mazraani to represent Sasala in the presentation of his motion to

withdraw his guilty plea at the November 19, 2008 sentencing

hearing.4    With the trial judge's consent, Mazraani questioned

Sasala under oath concerning his reasons for wanting to withdraw

his guilty plea:

            Q. You're alleging that Mr. Barman did not
            effectively represent you?

            A. I would say that, yes.

            Q. Tell the [c]ourt why.

            A. I had asked for a lot of the things that
            weren't in my discovery.       They were not
            included as the Grand Jury transcripts. I'd
            ask for a videotape that the discovery says
            they have which never even turned up. I had
            asked for my statements, my alleged statements

2
    The victim claimed Sasala pushed her out of the car.
3
  See N.J.S.A. 2A:158A-7(c), (d); see also State v. Van Ness, 450
N.J. Super. 470, 490 n.9 (App. Div. 2017).
4
   The trial court conducted a hearing to decide Sasala's motion
to withdraw his guilty plea. This hearing occurred nearly three
months before the Supreme Court decided State v. Slater, 198 N.J.
145 (2009).

                                  4                          A-2478-15T1
           I had given to the police. Never. I asked
           [him for] statements from the victims. Never
           heard from him. I asked him many times. I
           never got these things. These are things that
           would [have] help[ed] me make a sound
           decision.

     When Mazraani asked Sasala why he did not bring these concerns

to the judge's attention at the time of the plea hearing, Sasala

responded:

           I felt I was in a position where there was a
           no win situation. Mr. Barman was telling me
           I have to take this plea or else I'll never
           see my kid again. I was shaking my head. [The
           judge] stopped me. I knew what I saying was
           wrong. I was shaking my head. I knew what I
           was saying wasn't the truth. I'm not guilty
           of these charges.

     The judge denied Sasala's motion to withdraw his guilty plea.

He rejected as not credible Sasala's claim that he "was doing what

[Barman] told [him] to do."          The record shows the judge took

umbrage with Sasala's belated attempt to withdraw his guilty plea

by accusing Barman of coaching him to lie under oath.                     The judge

characterized     Sasala's     allegations            against        Barman        as

"disingenuous."     Despite   his    strong         disapproval      of    Sasala's

actions,   the   judge   sentenced       him   to    a   term   of    six     years

imprisonment subject to NERA; this was two years less than the

eight-year term of imprisonment authorized by the plea agreement.

Sasala did not appeal the sentence or the judge's decision to deny

his motion to withdraw his guilty plea.

                                     5                                      A-2478-15T1
     On February 1, 2011,5 Sasala filed a post-conviction relief

(PCR) petition alleging that both Barman and Mazraani provided

ineffective assistance. The PCR court denied Sasala's PCR petition

without conducting an evidentiary hearing.     Sasala appealed the

PCR's order to this court.   In the course of reviewing Sasala's

appeal, this court provided the following description of the

incident that gave rise to the criminal charges against him:

          [O]n December 31, 2006 . . . Mauricio
          Alexander Lopez drove Daisy and Sonia Estrada
          to a laundromat in Perth Amboy in a Honda
          Accord. Daisy was nine months pregnant at the
          time.   Lopez parked and began carrying bags
          of laundry inside, while Daisy and Sonia
          remained in the Honda with the engine running.
          [Sasala] approached Lopez and offered to help
          him carry the laundry bags. After all of the
          laundry had been carried in, [Sasala] ran to
          the Honda, entered the driver's side door, and
          pushed Daisy, who was exiting the passenger's
          side door, from the car. He then drove away
          with Sonia still in the backseat. Initially,
          Sonia was too afraid to say anything to
          [Sasala], but she eventually started yelling.
          [Sasala] pulled over and allowed her to leave.
          Sonia fled back to the laundromat, where she
          provided   police   with   a   description   of
          [Sasala].   She told the responding officers
          that [Sasala] "did not realize that she was
          in the back seat until she screamed," at which
          point he "ordered her to get out of the car[.]"

5
   The date indicated here is taken from paragraph twenty-seven of
plaintiff's verified complaint.     Sasala did not include in the
appellate record a filed copy of the PCR petition. In the interest
of clarity, we note that this court's unpublished opinion reversing
the PCR court's denial of Sasala's petition states Sasala filed
the PCR petition "in September 2010."      State v. Sasala, No. A-
2207-11 (App. Div. June 20, 2013) (slip op at 7).

                                6                           A-2478-15T1
            Later that day, Lopez contacted police and
            reported that he had seen [Sasala].    Police
            responded, and Lopez positively identified
            [Sasala], who was then placed under arrest.

            [Sasala, slip op. at 1-2.]

     This court noted that the factual basis Sasala provided at

the plea hearing in response to Barman's questions did not support

his guilty plea for the crime of second-degree kidnapping, as

defined in N.J.S.A. 2C:13-1(b).            Specifically, "defendant was

asked if he was guilty of second-degree kidnapping but was not

asked for a factual basis that included the required predicate

purpose."      Id. at 20.       We thus "revers[ed] the order denying

[Sasala's] petition for PCR and remand[ed] for an evidentiary

hearing on his claim of ineffective assistance of counsel and a

hearing to determine whether he should be permitted to withdraw

his guilty plea."       Ibid.

     On remand, Sasala negotiated a new plea agreement with the

State and pled guilty to second-degree robbery, N.J.S.A. 2C:15-1.

Pursuant to the terms of the plea agreement, the court sentenced

Sasala to a three-year term of imprisonment subject to NERA.              This

resulted in a de facto time-served sentence because by this time,

Sasala   had   served    over   five   years   of   his   original   six-year

sentence.      In light of this negotiated disposition, the trial

court did not make any final determination concerning whether


                                       7                              A-2478-15T1
Sasala received ineffective assistance of counsel from Barman or

Mazraani.

                                     II

       Against this procedural backdrop, we will now address the

issues raised by Sasala in this appeal. In support of their motion

for summary judgment, defendants argued to the Law Division that

Sasala was judicially estopped from seeking any civil relief under

any   of   the   theories   of   liability   stated   in   his   complaint.

Defendants argued that the legal malpractice claim subsumed the

breach of contract claim. Furthermore, by agreeing to plead guilty

to second-degree robbery, plaintiff was barred from bringing a

claim under the Mistaken Imprisonment Act, N.J.S.A. 52:4C-1 to -

7.    Finally, defendants argued that no reasonable jury could find

that any alleged legal malpractice committed by Barman and Mazraani

proximately caused Sasala compensable harm.

       The motion judge agreed that the legal malpractice claim

subsumed the breach of contract claim and that Sasala is barred

from asserting a claim under the Mistaken Imprisonment Act because

he pled guilty to the crime for which he was convicted.            In this

appeal, plaintiff argues he is entitled to seek damages under this

statute because he was "exonerated" of second-degree kidnapping.

For the first time on appeal, plaintiff also argues that he does

not need to present expert testimony to prove defendants committed

                                     8                              A-2478-15T1
legal     malpractice    or    that    their      professional     negligence

proximately caused him harm. We reject these arguments and affirm.

       We review the grant of a motion for summary judgment de novo.

Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013).                A court must

grant   summary     judgment   only   "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 or order as a matter of law."              R. 4:46-2(c).       We

must    determine    whether   "the    competent     evidential     materials

presented, when viewed in the light most favorable to the non-

moving party, are sufficient to permit a rational factfinder to

resolve the alleged disputed issue in favor of the non-moving

party."    Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995).

       To recover damages under the Mistaken Imprisonment Act, a

claimant must establish the following facts by clear and convincing

evidence:

            a. That he was convicted of a crime and
            subsequently   sentenced  to   a   term  of
            imprisonment, served all or any part of his
            sentence; and

            b. He did not commit the crime for which he
            was convicted; and



                                      9                               A-2478-15T1
          c. He did not commit or suborn perjury,
          fabricate evidence, or by his own conduct
          cause or bring about his conviction. Neither
          a confession or admission later found to be
          false shall constitute committing or suborning
          perjury, fabricating evidence, or causing or
          bringing about his conviction under this
          subsection; and

          d. He did not plead guilty to the crime for
          which he was convicted.

          [N.J.S.A. 52:4C-3 (emphasis added).]

     The record here is undisputed that Sasala cannot meet these

statutory criteria.   Sasala pled guilty to the crime of second-

degree kidnapping.    He did not file a direct appeal challenging

his conviction or sentence.     This court's decision related to

Sasala's PCR petition did not exonerate him of second-degree

kidnapping.   We remanded the matter to the PCR court to conduct

an evidentiary hearing on his claim of ineffective assistance of

counsel and to determine "whether he should be permitted to

withdraw his guilty plea."     Sasala, slip op. at 20 (emphasis

added).   On remand, Sasala negotiated a new plea agreement and

voluntarily pled guilty to second-degree robbery.   It is important

to state clearly that this court's decision to reverse the PCR

court's denial of Sasala's petition and remand the matter for an

evidentiary hearing did not vacate the conviction for second-

degree kidnapping.    Sasala's decision to pled guilty to second-

degree robbery in return for the State agreeing to vacate his

                                10                          A-2478-15T1
conviction for second-degree kidnapping obviated the need for the

PCR court to carry out our instructions.

     Sasala's legal malpractice claims are equally without merit.

In a legal malpractice action predicated on a defense counsel's

conduct, a plaintiff must prove actual damages.        Grunwald v.

Bronkesh, 131 N.J. 483, 495 (1993).      "The test is not whether

defense counsel could have done better, but whether he met the

constitutional threshold for effectiveness."    State v. Nash, 212

N.J. 518, 543 (2013).    Sasala has not presented any competent

evidence that Barman did not effectively represent him during the

plea negotiations.   The burden of proof also requires Sasala to

show that "the Government was willing to extend a plea offer to

him . . . that was more favorable than the one he accepted and

that his sentence would have been less than the one he received."

Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014).

Here, Sasala must prove that at the time he pled guilty to second-

degree kidnapping, but for Barman's professional negligence, the

State would have offered him a plea agreement with more favorable

terms.

     Sasala's self-serving account of the event that led to his

indictment on three counts of first-degree carjacking and second-

degree kidnapping does not constitute evidence of malpractice by

either Barman or Mazraani.   See Brae Asset Fund, LP v. Newman, 327

                                11                          A-2478-15T1
N.J. Super. 129, 134 (App. Div. 1999) (quoting U.S. Pipe & Foundry

Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App.

Div. 1961)) ("The law is well settled that '[b]are conclusions in

the pleadings without factual support in tendered affidavits, will

not defeat a meritorious application for summary judgment.'").

Indeed, as Barman's deposition testimony indicates, the State had

a strong case that Sasala committed first-degree carjacking and

intentionally pushed a pregnant woman in the course of committing

this offense.     The rejection of the State's plea offer at the time

would have exposed Sasala to a potential thirty-year term of

imprisonment subject to the parole restrictions under NERA.                 See

N.J.S.A. 2C:15-2(b).

      We have previously held that to recover damages for an alleged

invalid conviction "the plaintiff must first prove 'that the

conviction or sentence has been reversed on direct appeal, expunged

by executive order, declared invalid by a state tribunal authorized

to make such determination, or called into question by a federal

court's issuance of a writ of habeas corpus.'"             Alampi v. Russo,

345   N.J.   Super.   360,   367   (App.   Div.   2001)   (quoting   Heck   v.

Humphrey, 512 U.S. 477, 486 (1994)).         Sasala has not produced any

evidence to satisfy any of these requirements.

      Affirmed.



                                     12                              A-2478-15T1
