STATE OF NEW JERSEY VS. ANDRE NANCE (10-02-0206, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3601-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE NANCE, a/k/a PERNELL
L. DARBY, MARK DAVIS, KNOTT
KNOTT, ALVIN MANCE,
SHAUNDY MYRICK, GHENARDI
NANCE, KEVIN NANCE, ANDRE
A. STARKS, ASMAR STARKS,
NATHAN L. THOMAS, and SHUNDY
MYRICK,

Defendant-Appellant.
_________________________________

Submitted October 18, 2018 – Decided January 4, 2019

Before Judges O'Connor and DeAlmeida.

On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 10-02-0206.

Joseph E. Krakora, Public Defender, attorney for
appellant (David A. Gies, Designated Counsel, on the
briefs).
 Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (Izabella M.
Wozniak, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Andre Nance appeals from the denial of his petition for post-

conviction relief (PCR) without an evidentiary hearing. For the reasons that

follow, we remand for further proceedings.

Defendant was convicted by a jury of first-degree robbery, N.J.S.A.

2C:15-1, and fourth-degree possession of an imitation firearm for an unlawful

purpose, N.J.S.A. 2C:39-4(e). The trial court imposed an extended-term

sentence of sixty years, subject to the No Early Release Act, N.J.S.A. 2C:43-

7.2. Defendant appealed, but we affirmed his convictions and sentence. State

v. Nance, No. A-1911-12 (App. Div. Oct. 30, 2015). The Supreme Court

denied his petition for certification. State v. Nance, 224 N.J. 246 (2016).

The facts underlying defendant's convictions are set forth in our opinion

and need not be repeated here. On April 18, 2016, defendant filed a PCR

petition. Relevant to the issues on appeal, in his petition defendant contended

trial counsel advised him that he could not be sentenced to a mandatory

extended term of imprisonment. Defendant argued such advice caused him to

reject plea offers he otherwise might have taken and instead proceed to trial,

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resulting in his conviction and being sentenced to a mandatory extended term

of sixty years.

Defendant also claimed that, during his summation, the prosecutor

referenced two statements of a witness who had not testified. Defendant

asserted these statements were prejudicial to him. A brief submitted by PCR

counsel asserted New Jersey law on prosecutorial misconduct is ambiguous.

Therefore, PCR counsel argued, the prosecutor's misconduct had to be

evaluated in the context of whether the prosecutor violated defendant's

substantive due process rights under the Fourteenth Amendment of the United

States Constitution.

We note that, on direct appeal, defendant asserted the prosecutor

engaged in misconduct by eliciting from a State's witness one of the two

allegedly prejudicial out-of-court statements made by the non-testifying

witness. We found the testimony harmless, because the evidence contained in

the witness's out-of-court statement had been properly admitted through the

testimony of other witnesses. Also on direct appeal, defendant argued the

prosecutor wrongfully referenced the second out-of-court statement during his

summation. However, we noted that, in its final instructions the trial court

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gave the jury a Clawans1 charge regarding the State's failure to call the non-

testifying witness.

Following oral argument for PCR, the court issued a written decision

denying defendant's petition. On the issue whether counsel advised defendant

he would not be subjected to a mandatory term, the court found the pretrial

memorandum, signed by defendant, informed him he qualified for an extended

mandatory term and, if convicted, the maximum sentence imposed would be

sixty-seven years to life. The pretrial memorandum noted that the plea offer

made to defendant was "18 @ 85%," and that, except in extraordinary

circumstances, the filing of the memorandum ended all plea negotiations. The

PCR court found defendant's claim he was entitled to PCR because of

prosecutorial misconduct was barred by Rule 3:22-5, because the issues he

asserted had been fully addressed on direct appeal.

Defendant presents the following points for our consideration in his

appeal:

POINT I: THE PERFORMANCE OF THE
DEFENDANT'S TRIAL ATTORNEY WAS
DEFICIENT WHERE, WHEN VIEWED IN THE
LIGHT MOST FAVORABLE TO DEFENDANT, HE
OFFERED INCORRECT ADVICE BEFORE
DEFENDANT FORMALLY REJECTED THE PLEA
OFFER.

1
State v. Clawans, 38 N.J. 162, 170 (1962).

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 POINT II: DEFENDANT ESTABLISHED THE
PREJUDICE PRONG IN ORDER TO NECESSITATE
AN EVIDENTIARY HEARING, WHERE A MORE
SEVERE PRISON TERM WAS IMPOSED AFTER A
TRIAL AT WHICH HE WAS FOUND GUILTY
THAN THE STATE OFFERED DURING PLEA
NEGOTIATIONS.

POINT III: THE PCR COURT ERRED WHERE IT
FOUND THAT DEFENDANT DID NOT
ESTABLISH A PRIMA FACIE CASE THAT
WARRANTED AN EVIDENTIARY HEARING.

POINT IV: THE PCR COURT ERRED WHERE IT
DETERMINED THAT REVIEW OF A
PROSECUTORIAL MISCONDUCT ANALYSIS
UNDER STATE LAW IS THE SAME AS UNDER
FEDERAL LAW.

In order for a defendant to obtain relief based on ineffective assistance

grounds, he is obliged to show not only the particular manner in which

counsel's performance was deficient, but also that the deficiency prejudiced his

right to a fair disposition of the charges. See Strickland v. Washington, 466

U.S. 668 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). It is well settled that

"plea bargaining is a critical stage of the criminal proceeding at which the right

of representation attaches." State v. Taccetta, 351 N.J. Super. 196, 200 (App.

Div. 2002), rev'd after remand, 200 N.J. 183 (2009); see also United States v.

Day, 969 F.2d 39, 43 (3d Cir. 1992).

During the plea bargaining stage, "a defendant has the right to make a

reasonably informed decision whether to accept a plea offer" and knowledge of

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potential sentence exposure is crucial to the decision of whether to plead

guilty. Day, 969 F.2d at 43; see also State v. Nichols, 71 N.J. 358, 361 (1976).

"The defendant must be advised of his susceptibility to an enhanced sentence ."

Pressler and Verniero, Current N.J. Court Rules, cmt. 1.4.2. on R. 3:9-2 (2018)

(citing State v. Cartier, 210 N.J. Super. 379 (App. Div. 1986)). See also State

v. Thomsen, 316 N.J. Super. 207, 214 (App. Div. 1998) (noting "every person

is entitled to know, with reasonable exactitude, the penal consequences of any

criminal charge he or she is called upon to defend against.").

In Taccetta, the defendant asserted trial counsel failed to advise him of

the enhanced sentence exposure he would face on racketeering and extortion

charges (of which he was ultimately convicted by a jury) in the event he were

acquitted of murder charges. 351 N.J. Super. at 199. Relying on counsel's

misadvice, the defendant rejected the plea agreement he otherwise would

likely have accepted. Ibid.

We reversed the court's denial of PCR without an evidentiary hearing,

holding that "an attorney's gross misadvice of sentencing exposure that

prevents defendant from making a fair evaluation of a plea offer and induces

him to reject a plea agreement he otherwise would likely have accepted

constitutes remediable ineffective assistance" that falls below an objective

standard of reasonableness, satisfying the first prong of Strickland/Fritz. Id. at

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200.2 Where a defendant has presented a prima facie claim of ineffective

assistance of counsel and the asserted facts in support thereof are outside the

record, an evidentiary hearing is required. State v. Preciose, 129 N.J. 451, 462

(1992).

Here, we are satisfied that an adequate prima facie showing was made to

mandate an evidentiary hearing in order to afford defendant the opportunity to

demonstrate to the PCR court that a favorable plea offer or offers were made,

but the advice defendant's counsel gave him respecting his sentencing

exposure upon conviction at trial was incorrect, and defendant would have

entered a guilty plea in accordance with one of the plea offers had he been

correctly advised.

We are aware the pretrial memorandum, which defendant executed,

states he qualified for a mandatory extended-term sentence and that, if he

rejected "this plea offer," the court could impose up to the maximum sentence

permitted if he were convicted after trial. However, defendant contends his

counsel advised him that he would not be eligible for a mandatory extended

2
As to the second prong, as the result of subsequent developments in this
matter, the Supreme Court subsequently held the defendant was unable to
establish prejudice as a matter of law because accepting the plea would have
required the defendant to perjure himself, a plan in which the trial court could
not be complicit. State v. Taccetta, 200 N.J. 183, 195-96 (2009) ("Court-
sanctioned perjury is not a permissible basis for the entry of a plea in this
State.").

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term if he went to trial, which caused defendant to reject plea offers he

otherwise might have taken. Whether his attorney in fact gave him this advice,

why defendant accepted such advice over that which was stated in the pretrial

memorandum, and whether defendant would have accepted a plea offer but for

the subject advice from his attorney must be explored at an evidentiary

hearing.

We have considered defendant's remaining arguments and conclude they

are without sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

Remanded for further proceedings. We do not retain jurisdiction.

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