Lawyer Had No Duty to Disclose Client's Indictable Offense
Mary Pat Gallagher, New Jersey Law Journal
A lawyer whose client pleaded guilty in municipal court to the traffic offense of driving with a suspended license was not obligated to inform the judge and prosecutor that the client was subject to indictment and harsher penalties because her license had been suspended for drunken driving, a New Jersey appeals court has held.
The court, however, faulted the lawyer, Steven Kaplan, for having his client, Davi Kane, later withdraw the guilty plea without explaining to her that she would lose her protection against double jeopardy and be exposed to prosecution for a fourth-degree crime carrying a minimum half-year in jail, which is what eventually occurred.
In an unpublished Feb. 17 opinion in State v. Kane, a three-judge panel found ineffective assistance of counsel by Kaplan, a Northfield, New Jersey, solo, and upheld a lower court decision that reinstated the original plea.
DWI defense lawyer Jeffrey Gold of Cherry Hill, New Jersey, who was not involved in the case, said Kane answered a question that has been “a big practice issue for the bar: Is it your job as defense attorney to bring up to the prosecutor that this could be an indictable charge?”
Gold said he sees the issue now as whether that should be the judge’s responsibility, adding that he does not think it should.
Gold said he plans to ask the state bar association and the Association of Criminal Defense Lawyers of New Jersey to request that Kane be published as a decision by a three-judge panel “on an important issue of law that should guide the behavior of lawyers.”
In Kane, Appellate Division Judges Jack Sabatino, Marie Simonelli and Michael Guadagno rejected the prosecution’s position that Kaplan engaged in fraud and violated ethics rules on the initial plea by not alerting the municipal judge and prosecutor that his client’s conduct could be prosecuted as a fourth-degree crime.
The panel said there was insufficient evidence of that. The panel also noted that Kane’s driving abstract was available to the judge and prosecutor and should have revealed that Kane was on the revoked list because of multiple DWI convictions, making her eligible to be charged with violating N.J.S.A. 2C:40-26(b).
The panel acknowledged that the statute, which became law in 2009 and carries a minimum 180-day jail term, was “relatively new” at the time of the initial March 2012 plea, and, thus, “it is conceivable that the judge and prosecutor may not have been well-attuned to its potential application in DWI cases.”
But the panel nevertheless rejected the contention that ethics rules required defense counsel “to spotlight the statute’s potential application adverse to his client’s interests.”
The panel did not view the situation as akin to In re Seelig, where the New Jersey Supreme Court held in 2004 that a lawyer violated his duty of candor to the court by having a client plead guilty to reckless driving in a hit-and-run accident, without disclosing that the accident killed two people.
In that case, according to the opinion, the prosecutor was plea-bargaining outside the courtroom, and, when the judge asked the attorney, Jack Seelig, if the accident caused personal injury or property damage, Seelig answered, “personal injury.”
Despite finding an ethics breach, the Supreme Court opted not to penalize Seelig, saying it would be unfair because he acted under a good-faith but mistaken belief “that he had a superseding obligation to his client,” and there was a lack of clear judicial guidance on the issue.
But the justices made it clear that in the future, lawyers would have to reveal pending indictable offenses in order to prevent the court from being misled by their silence.
The Kane court called Seelig “markedly distinguishable” because in Seelig “a defense attorney affirmatively misled a municipal judge about the facts in a vehicular case, i.e., whether the victims had died.”
In contrast, the panel noted, the municipal prosecutor in Kane, Donald Charles, conceded it was his responsibility to be aware that the 2C offense might apply and not to accept the plea to a lesser charge with double-jeopardy implications.
Kane was arrested in Ocean City, New Jersey, on Jan. 25, 2012, for driving while under a 10-year license suspension for multiple DWI convictions. She was stopped because she was talking on a cellphone while driving.
About two months later, represented by Kaplan, she appeared before Judge Richard Russell in Ocean City municipal court and pleaded guilty to driving while suspended under Section 39:3-40 of the motor vehicle law, a nonindictable offense carrying at least 10 days in jail, but no more than 90, according to the panel’s opinion. Russell sentenced her to 30 days, which could be served intermittently, under an alternate incarceration program.
Five days later, Kane returned to court with Egg Harbor City, New Jersey, solo Shaun Byrne and withdrew the plea without being questioned by the judge, according to the opinion. Municipal court staff contacted Kaplan based on “concerns that came to the attention of the municipal judge that the plea may have been, as the judge termed it, ‘illegal,’” because of the potential indictable offense.
Following the plea withdrawal, Kaplan was indicted on the 2C charge and pleaded guilty in the Law Division, with the state recommending the minimum 180-day sentence, according to the opinion.
Kane hired a new lawyer and sought to withdraw her plea, but Judge Patricia Wild, of Cape May County, New Jersey, refused and later denied reconsideration, saying Kane had potentially viable double-jeopardy and ineffective assistance arguments that should be pursued by way of post-conviction relief. Wild imposed a 30-day sentence.
On Kane’s first appeal, decided in 2013, Sabatino and Judge Carmen Messano remanded so Kane could file a PCR petition and for a hearing on why her lawyers had her withdraw the first plea and admit to the more serious crime. The judges also instructed that if the PCR case failed, the sentence should be increased to 180 days.
The Feb. 17 appeals court opinion described what happened on remand.
Kaplan testified that he was aware of Kane’s driving record and that she was subject to indictment, but he denied that he considered the double-jeopardy implications.
He further testified that when he learned the court had relisted Kane’s case, he thought the judge had decided to reject the plea because of the possible indictment.
Kaplan claimed he had a scheduling conflict, that it was Kane who arranged for Byrne to accompany her and that he never discussed Kane’s case with Byrne.
Byrne, on the other hand, said he talked with Kaplan, who told him to withdraw the guilty plea, according to the opinion.
Byrne further testified that he advised Kane against it and she instructed him to do what Kaplan wanted.
Kane testified that Kaplan had called her a few days after the plea, saying there had been a mistake and that she had to return to court to take the plea back, because, if she didn’t, a warrant would be issued for her arrest, according to the opinion.
Kane recalled Byrne telling her he was uncomfortable with the withdrawal but said they did not discuss the possible consequences, according to the opinion. It was only after pleading guilty to the 2C crime that she realized she could go to jail for six months, Kane testified.
In July 2014, Wild found ineffective assistance by Kaplan, but not Byrne, though neither advised Kane of the 180-day sentence.
Wild said she believed Byrne’s account that he spoke with Kaplan before the plea withdrawal. The judge criticized Kaplan for abandoning Kane by not getting a postponement when he could not be there or arranging for competent counsel to appear on his behalf.
Wild vacated the second guilty plea, dismissed the indictment based on double jeopardy and reinstated the initial plea and sentence.
In affirming, the appeals court said Kaplan’s “improvident decision to have defendant withdraw her guilty plea to the municipal charges, especially since her guilt of driving on the suspended list was clear, surely was prejudicial to her in losing her double-jeopardy protection.”
The panel also expressed its view that there was “nothing illegal” about pleading guilty to the motor vehicle violation as a lesser-included offense to the fourth-degree crime.
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