NOT FOR PUBLICATION WITHOUT THE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
DOCKET NO. A-1356-19
STATE OF NEW JERSEY,
a/k/a NEDAL IBARRA,
Submitted January 27, 2021 – Decided February 19, 2021
Before Judges Rose and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 13-06-0114.
Joseph E. Krakora, Public Defender, attorney for
appellant (Al Glimis, Designated Counsel, on the
Gurbir S. Grewal, Attorney General, attorney for
respondent (Sarah D. Brigham, Deputy Attorney
General, of counsel and on the brief).
Defendant David Companioni appeals from an October 4, 2019 order
denying his petition for post-conviction relief (PCR) following an evidentiary
hearing. Because the PCR judge's decision lacks the requisite findings of fact
and conclusions of law as required by Rule 1:7-4(a), we vacate the order and
remand the matter for further proceedings.
For his part in cultivating marijuana plants at his apartment and a
warehouse, defendant was charged in a State grand jury indictment with second-
degree conspiracy to distribute twenty-five pounds or more of marijuana (count
one), first-degree possession with intent to distribute twenty-five pounds or
more of marijuana (count two), and first-degree maintaining or operating a
controlled dangerous substance (CDS) production facility (count three). Prior
to trial, defendant moved to suppress evidence seized after the issuance of a
communications data warrant (CDW) that authorized the placement of a GPS
tracking device on his co-defendant's car. Defendant contended the GPS device
was installed before the search warrant was issued. The trial judge denied
defendant's suppression motion.
Pertinent to this appeal, defendant rejected all plea offers extended by the
prosecution. A jury convicted defendant on count two, as amended to a second-
degree offense and count three as charged. The jury was unable to reach a
unanimous verdict on count one, which was thereafter dismissed on motion of
the prosecutor. The trial judge granted the State's motion for an extended term 1
and sentenced defendant to an aggregate term of twenty years, with a parole
disqualifier of six years and eight months. Defendant filed a direct appeal,
limiting his contentions to the denial of his suppression motion. We affirmed,
State v. Companioni, No. A-1402-15 (App. Div. Feb. 7, 2018), and the Supreme
Court denied certification,
234 N.J. 197
Defendant thereafter filed a timely pro se PCR petition raising a litany of
issues attacking his trial counsel's effectiveness. After PCR counsel was
assigned, defendant amended his petition. Following oral argument, the PCR
judge, who also presided over the trial and sentencing proceedings, concluded
nearly all of defendant's allegations against trial counsel would not have
changed the outcome at trial. In reaching her decision, the judge noted the
"overwhelming" evidence against defendant in this case.
But the PCR judge granted defendant's request for an evidentiary hearing,
limiting the scope of the hearing to a single issue: whether trial counsel
Because defendant had a prior conviction for CDS distribution, he was subject
to a mandatory extended term upon application of the State. N.J.S.A. 2C:43 -
6(f); see also N.J.S.A. 2C:43-7.
misadvised defendant that he could only appeal the judge's denial of his
suppression motion after trial. Defendant asserted he would have accepted the
State's plea offer – rather than go to trial – had trial counsel advised he could
appeal the judge's suppression decision.
During the one-hour evidentiary hearing, defendant presented the
testimony of trial counsel and testified on his own behalf. The State did not
present any evidence. No documents were admitted in evidence.
Trial counsel testified about his legal experience. He recalled the
weaknesses of the case, including defendant's confession to law enforcement "as
to how much marijuana he wanted to sell, how much he grew, and who he was
going to sell it to." Trial counsel said he "strongly encouraged" defendant to
resolve the matter pretrial to avoid "facing the extended term." Counsel said he
had "at least twenty" conversations with defendant about pleading guilty.
Regarding trial counsel's communication with defendant regarding the
right to appeal the denial of his suppression motion, the following exchange
PCR COUNSEL: Okay. Did [defendant] ask you about
appealing the motion to suppress that you had lost?
TRIAL COUNSEL: No.
PCR COUNSEL: You don't recall any conversation
about that taking place?
TRIAL COUNSEL: No.
PCR COUNSEL: Okay. And . . . if there was a
discussion you would remember it though, right?
TRIAL COUNSEL: I would.
PCR COUNSEL: Okay. And so, it's your testimony
today that there was no conversation with [defendant]
about whether or not he could appeal this motion to
TRIAL COUNSEL: I don't recall having a
conversation like that because it is something I would
When asked whether he was "aware of what is appealable after [a
defendant] plead[s] guilty in a particular case," trial counsel stated: "I believe
every motion and such would be appealable." An exchange occurred during
which trial counsel explained he was "just speaking to the [suppression] motion
[he] filed." Trial counsel also said he socialized with defendant, which
prompted defendant to retain him, although counsel said he "would have done it
for free for [defendant]." Trial counsel said they are "still" friends.
On cross-examination, the State elicited the following testimony:
PROSECUTOR: You said you don't recall engaging
and having conversations about appealing a motion to
suppress. That is correct, right?
TRIAL COUNSEL: That is correct.
PROSECUTOR: So, you definitely didn't tell him, "Oh
no, you cannot appeal?"
TRIAL COUNSEL: Oh, heck no, I didn't tell him that.
PROSECUTOR: You didn't say, oh you have to go to
trial in order to appeal this motion to suppress; correct?
TRIAL COUNSEL: That is correct.
PROSECUTOR: You did not tell him that?
TRIAL COUNSEL: That is correct. I did not tell him
Defendant testified to a vastly different version of his discussions with
trial counsel, claiming his attorney did "a poor job when it came to convincing"
defendant whether he "should accept a plea or go to trial." Defendant testified
trial counsel told him: "In order for us to appeal we had to go to trial."
Defendant asserted he "wasn't informed until now that you could actually accept
a plea bargain and appeal afterwards."
When asked whether he would have pled guilty had he known he could
appeal the suppression decision thereafter, defendant testified:
Of course. And . . . on top of that, if you would have
told me the process of an appeal, how long it takes,
what I got to [d]o just to get to a PCR; what I have to
do [to get] a direct appeal; how I got to appeal to the
state Supreme [Court] – he didn't inform me . . . on none
[sic] of those steps. [Trial counsel] never even
informed me how long it takes. Those were factors for
me to consider. If I knew it took almost four years just
to get a PCR, . . . I would just have accepted the plea
offer. I would have been home a long time ago. He
never told me . . . nothing [sic]. I just assumed that I
would have to go to trial then appeal afterwards. I
thought those were the steps.
On cross-examination, defendant acknowledged: he "confessed to the
plants that were found in [his] residence"; he thought a jury would not return a
guilty verdict on marijuana charges; and trial counsel spoke with him "multiple
times" about pleading guilty. Defendant also testified that "right before the
verdict came out, the prosecutor . . . offered three and a half years," but trial
counsel immediately rejected the offer without speaking with defendant.
Because the State had previously offered to limit his exposure to ten years,
defendant assumed they had "a good shot" at a not-guilty verdict.
Immediately following defendant's testimony, the PCR judge issued a
terse decision from the bench that accompanied the order denying defendant's
petition. The judge briefly summarized her recollection of the pretrial plea
negotiations in view of defendant's extended-term sentencing exposure and the
"overwhelming evidence" against him.
Noting the issue before her "was limited [to] the purposes of determining
if trial counsel advised . . . defendant that he could not appeal the suppression
[decision] if he pled guilty," the judge concluded:
[Trial counsel] said that he has no recollection telling
the defendant that. [D]efendant testified and said that
he has no recollection of [trial counsel] telling him that
he could appeal in any way, shape or form except for
going through trial.
Honestly, I find that both of these individuals – I
found their testimony credible. I don't know.
Somewhere in between lies what happened. . . . I
honestly don't know.
Unfortunately, [we] are talking about five years
ago. But what I do firmly remember is [defendant] . . .
didn't want to hear any of us. He really was very, very
clear that [he was] taking [the case] to trial. I think . . .
he was firmly convinced that people were not going to
find him guilty of something dealing with marijuana.
He really (indiscernible) that. And it appeared that
what I remember is that everyone tried to dispel him of
There's [sic] laws. We have to obey them. It
doesn't matter what happens in the future. This is what
is here now. This is what you're facing. And I do think
this comes down to buyer's regret.
You know, everything comes back to what
hindsight is, 20/20. And . . . we all wish we can wheel
back the time, but we can't. As we know the standard
as far as incompetency of counsel on a grand scale is
pretty low. And the other side of it is, is there other
than, [defendant] saying I would have taken the plea, if
he had know[n] this[?] From what I remember of this
case I don't think he ever would have taken the plea.
He was very firm about his position in this case.
And finding both of their testimonies credible, I
find them in equipoise with each other. Therefore, I do
not find that the burden has been proven in this case and
I deny the PCR.
On appeal, defendant raises a single point for our consideration:
THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR [PCR] SINCE
DEFENDANT ESTABLISHED THAT TRIAL
COUNSEL PROVIDED INEFFECTIVE
ASSISTANCE OF COUNSEL BY FAILING TO
ADVISE DEFENDANT THAT HE COULD ENTER A
GUILTY PLEA AND STILL APPEAL THE DENIAL
OF THE MOTION TO SUPPRESS, CAUSING
DEFENDANT TO NOT BE FULLY INFORMED
WHEN HE DECIDED TO PROCEED TO TRIAL.
Our review where the court has conducted an evidentiary hearing on a
defendant's PCR petition "is necessarily deferential to [the] PCR court's factual
findings based on its review of live witness testimony." State v. Nash,
212 N.J. 518
, 540 (2013). Where an evidentiary hearing has been held, we should not
disturb "the PCR court's findings that are supported by sufficient credible
evidence in the record." State v. Pierre,
223 N.J. 560
, 576 (2015) (internal
quotation marks omitted). In general, we do not second guess a court's
credibility assessment, as long as such fact-findings are supported by "adequate,
substantial, credible evidence." Cesare v. Cesare,
154 N.J. 394
, 411-12 (1998).
We review any legal conclusions of the PCR court de novo.
Nash, 212 N.J. at 540-41
In the present matter, however, our review is hampered by the
insufficiency of the trial judge's findings of fact and conclusions of law. R. 1:7-
4. Under that Rule, the trial court "by an opinion or memorandum decision,
either written or oral," must "find the facts and state its conclusions of law . . .
in all actions tried without a jury." The trial court must clearly state its factual
findings and correlate them with relevant legal conclusions so the parties and
appellate courts may be informed of the rationale underlying the decision. See
Monte v. Monte,
212 N.J. Super. 557
, 564-65 (App. Div. 1986). "In the absence
of [adequate] reasons, we are left to conjecture as to what the judge may have
had in mind." Salch v. Salch,
240 N.J. Super. 441
, 443 (App. Div. 1990).
Further, such an omission "imparts to the process an air of capriciousness
which does little to foster confidence in the judicial system." Twp. of
Parsippany-Troy Hills v. Lisbon Contractors, Inc.,
303 N.J. Super. 362
(App. Div. 1997). The "[f]ailure to make explicit findings and clear statements
of reasoning constitutes a disservice to the litigants, the attorneys, and the
appellate court." Gnall v. Gnall,
222 N.J. 414
, 428 (2015) (citations omitted).
The PCR judge's "findings" in this case were limited to a cursory summary
that both witnesses had "no recollection" of the seminal conversation. Yet, the
testimony of both witnesses seems to suggest otherwise. The PCR judge found
the testimony of both witnesses credible and therefore, "in equipoise." But the
judge failed to explain her reasons for that credibility assessment, by citing, for
example, the well-recognized factors set forth in the model jury charge on
the appearance and demeanor of the witness;
the manner in which he or she may have testified;
the witness' interest in the outcome of the trial if any;
his or her means of obtaining knowledge of the facts;
the witness' power of discernment meaning his or her
judgment - understanding;
his or her ability to reason, observe, recollect and relate;
the possible bias, if any, in favor of the side for whom
the witness testified;
the extent to which, if at all, each witness is either
corroborated or contradicted, supported or discredited
by other evidence;
whether the witness testified with an intent to deceive
the reasonableness or unreasonableness of the
testimony the witness has given;
whether the witness made any inconsistent or
and any and all other matters in the evidence which
serve to support or discredit his or her testimony.
[Model Jury Charges (Criminal), "Criminal Final
Charge Parts I and II (General Information to
Credibility of Witnesses)" (rev. May 12, 2014).]
Moreover, the judge failed to apply – or even cite – the governing law.
See Strickland v. Washington,
466 U.S. 668
, 687 (1984) (requiring a defendant
seeking PCR on ineffective assistance of counsel grounds to demonstrate: (1)
the particular manner in which counsel's performance was deficient; and (2) that
the deficiency prejudiced defendant's right to a fair trial); see also State v. Fritz,
105 N.J. 42
, 58 (1987) (adopting the Strickland two-part test in New Jersey).
Accordingly, we are in no position to endorse the judge's conclusion that
defendant failed to sustain his burden of proof on PCR. See State v. Gaitan,
209 N.J. 339
, 350 (2012) (recognizing "a defendant asserting ineffective assistance
of counsel on PCR bears the burden of proving his or her right to relief by a
preponderance of the evidence").
Under the circumstances presented, therefore, we have no alternative but
to reverse the PCR judge's order and remand this matter for further proceedings.
In doing so, we do not suggest a preferred result, but only that the judge fulfill
the court's duty to fully address the factual and legal arguments presented in this
case. The judge's decision should include detailed findings of fact, correlated
to comprehensive conclusions of law that address all issues raised by the parties
as guided by the Strickland two-part analysis.
Neither the parties nor the PCR judge should construe our observations as
requiring a rehearing, or implying how defendant's PCR application should be
decided. If the judge determines the existing record before the PCR court is
adequate to dispose of defendant's petition, then the judge should issue an
opinion that sets forth more amplified findings of fact, and analyzes those facts
pursuant to the governing law.
Reversed and remanded. We do not retain jurisdiction.