Doctor Attempts to Back out of Favorable Plea Deal When Sentenced to Jail
In State Of New Jersey Amgad A. Hessein, No. A-0983-20, Superior Court of New Jersey, Appellate Division (April 26, 2022) Dr. Amgad A. Hessein, a physician facing a thirty-eight-count indictment alleging billing fraud related to his medical practice, was on the verge starting his trial after completion of jury selection when he pled guilty to second-degree theft by deception, N.J.S.A. 2C:20-4(a), and second-degree health care insurance claims fraud, N.J.S.A. 2C:21-4.3(a).
As part of the plea agreement, the prosecutor gave a gift to Dr. Hessein by dismissing the remaining thirty-six counts because defendant entered into a consent order requiring forfeiture of $2,000,000 and directing that he pay restitution in the amount $235,093.75.
Prior to sentencing defendant to an aggregate eight-year prison term and ordering forfeiture of funds and restitution, Judge John M. Deitch denied defendant’s motion to withdraw his guilty pleas.
FACTS
In March 2020, defendant filed a motion to withdraw his guilty pleas and vacate his sentence. Before the motion was heard, defendant filed a verified petition for post-conviction relief (PCR) alleging trial counsel was ineffective by permitting him to enter guilty pleas including “an illegal civil consent order . . . forfeit[ing] property and money without . . . a restitution hearing,” and by allowing him to plead guilty “to second[-]degree health[] care insurance fraud instead of proceeding on a theory third[-]degree reckless health[ ]care insurance fraud.”
Defendant also made claims against appellate counsel, contending ineffective assistance of counsel by not challenging: the legality of the forfeiture consent order and the lack of a restitution hearing; and the factual basis of the guilty plea to second-degree health care insurance fraud. Judge Deitch issued an order denying defendant’s motion and his PCR petition without an evidentiary hearing.
DISCUSSION
To withdraw a guilty plea after sentencing a defendant, to establish vacation, it is necessary to correct a manifest injustice. In considering whether relief is appropriate, the motion judge must weigh the four factors identified in State v. Slater, 198 N.J. 145, 157-58 (2009):
whether the defendant has asserted a colorable claim of innocence;
the nature and strength of defendant’s reasons for withdrawal;
the existence of a plea bargain; and
whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.
Applying Slater, Judge Deitch properly exercised his discretion in determining that these factors did not weigh in defendant’s favor and thus denied defendant’s motion because there was no showing of a manifest injustice.
As for the first factor, the judge held that defendant – as the judge did in denying defendant’s previous motion to withdraw guilty pleas affirmed by this court on direct appeal – failed to set forth any colorable claim of innocence.
As for the second factor, the judge rejected defendant’s argument that there was a strong reason for plea withdrawal and that the court’s forfeiture order was illegal because it was based on a “civil consent judgment” used by the State to gain an unfair upper hand in criminal plea negotiations. Defendant’s consent order addressed both restitution and forfeiture of defendant’s property in the context of criminal proceedings, and there was no reference in the order to a civil judgment or any judgment being entered against the defendant.
As for the third factor, the judge noted that defendant reached a plea agreement, which typically isn’t “given great weight in the balancing process,” and highlighted that defendant had the “heavier burden in seeking to withdraw pleas entered as a part of a plea bargain.” The factor therefore weighed against defendant.
As for the fourth factor the judge explained that when there are colorable reasons for withdrawal, coupled with an appropriate assertion of innocence, arguments against permitting withdrawal of a plea prior to sentencing weaken considerably absent unfair prejudice or advantage. The judge held that as defendant did not offer proof of the other three factors to support withdrawal of his plea, and the State showed it would be prejudiced if a withdrawal was granted because “many of [its] witnesses [were] elderly or infirm and could no longer be available at trial.” Hence, the factor weighed against defendant.
To succeed on a PCR claim, a defendant must demonstrate: (1) counsel’s performance was deficient, and (2) the deficient performance actually prejudiced the accused’s defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the two-part Strickland test in New Jersey).
There was no deficient performance by trial counsel which prejudiced defendant, therefore appellant counsel was not ineffective for failing to raise an issue that would not have constituted reversible error on direct appeal. Defendant’s criminal consent order requiring the forfeiture of money was legal. The judge aptly reasoned that since “there was no illegal plea bargain to warn [d]efendant against accepting,” trial counsel was not ineffective, and thus “there was no issue for appellate counsel to raise.”
Regarding appellate counsel’s alleged failure to argue that trial counsel erred in permitting defendant to plead guilty to second-degree health care insurance fraud rather than advancing a theory of third-degree reckless health care insurance fraud, the judge properly noted defendant “knowingly and intelligently pled guilty to second[-]degree health care [insurance] claims fraud,” as evidenced in the trial record. The judge further commented that the factual sufficiency of defendant’s plea was raised and rejected on direct appeal.
The trial judge properly found that defendant failed to demonstrate there was any evidence supporting a third-degree reckless health care insurance claim fraud instead of a second-degree offense.
Finally, Judge Deitch did not abuse his discretion in not conducting an evidentiary hearing. There were no disputed facts regarding entitlement to PCR that could not be resolved based on the existing record and defendant failed to set forth a prima facie case of ineffective assistance of counsel.
Insurance criminals have no honor. Dr. Hessein was facing a great deal of jail time, fines and restitution orders and a trial charging him with thirty two counts of major fraud. He pleaded guilty to one count and agreed to restitution. After he was sentenced to jail on the plea he changed his mind and wanted to withdraw his plea and not go to jail because most of the witnesses against him were dead or infirm. It wasn’t even a good try and he obviously used the fraudulent money he gained that were not taken by the court to fund this stupid, second appeal, trying to withdraw his plea. Hopefully he will be able to help the health of his fellow prisoners.
(c) 2022 Barry Zalma & ClaimSchool, Inc.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 54 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.
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