Opinion
DOCKET NO. A-3120-14T1
06-14-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FREDERIC FEIT, Defendant-Appellant.
Michael Chazen argued the cause for appellant. Sarah Lichter, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Ms. Lichter, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-09-00108. Michael Chazen argued the cause for appellant. Sarah Lichter, Deputy Attorney General, argued the cause for respondent (Robert Lougy, Acting Attorney General, attorney; Ms. Lichter, of counsel and on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
Defendant, a physician, was indicted on two counts of second-degree health care claims fraud and one count of second-degree theft by deception. It was alleged that defendant used a Current Procedural Terminology (CPT) code for paraspinal nerve block procedures that included fluoroscopic guidance. It is undisputed that defendant did not employ fluoroscopic guidance in the procedures he performed and billed from 1998 to 2004. The false claims that were the subject of the indictment spanned a period from 1998 to 2004 and totaled more than $520,000.
Defendant entered a guilty plea pursuant to a plea agreement that permitted him to plead to an amended count of third-degree theft by deception. He agreed to waive his right to a restitution hearing and to pay restitution for the full amount alleged in the indictment to health insurance companies that had been defrauded as a result of his deception. Defendant was sentenced to five years' probation and a fine and was ordered to pay restitution of $578,978.12.
In his direct appeal, defendant did not seek to withdraw his guilty plea and did not argue he was not guilty because the CPT code he used did not require fluoroscopic guidance. He raised the following arguments:
POINT 1
DEFENDANT'S PLEA, WHILE VOLUNTARY, WAS WITHOUT THE REQUISITE KNOWLEDGE OF ALL CONSEQUENCES HE WAS FACING, INCLUDING, BUT NOT LIMITED, TO HIS POSSIBLE LOSS OF MEDICAL LICENSE, AS WELL AS THE IMPOSITION OF THE RESTITUTION.
POINT II
DEFENDANT WAS ENTITLED TO A PLENARY HEARING, FOLLOWING HIS GUILTY PLEA, ADDRESSING ALL ISSUES.
POINT III
THE LOWER COURT'S IMPOSITION OF A $15,000.00 FINE WAS EXCESSIVE.
We affirmed his conviction and sentence in an unpublished opinion, State v. Feit, Docket No. A-4940-08 (App. Div. May 19, 2010). In doing so, we concluded that all of these arguments lacked merit, and specifically rejected defendant's argument that he was not "adequately advised" regarding his agreement "to make restitution up to the amount alleged in the indictment, including the counts dismissed, as part of the plea agreement." Id. (slip. op. at 8).
Thereafter, defendant filed a motion to withdraw his plea. In his written statement of reasons for denying the motion, the motion judge described the grounds alleged by defendant: he was innocent; he never used the wrong billing code in his bills to insurance carriers; the factual basis for his guilty plea was inadequate; and his attorney misled him regarding the consequences of his guilty plea. Defendant supported his contention of innocence with a certification from Dr. Serge Menkin, who concluded defendant had not billed insurance carriers using incorrect CPT codes. The motion judge evaluated Dr. Menkin's certification and concluded he merely contradicted the State's expert, who, unlike Dr. Menkin, was a recognized expert in the field of CPT coding. The judge also noted that because Dr. Menkin's opinion was discoverable as of the time of the guilty plea, it did not constitute newly discovered evidence. The motion judge assessed defendant's motion in light of the applicable factors set forth in State v. Slater, 198 N.J. 145 (2009) and entered an order denying defendant's motion to withdraw his guilty plea in March 2011. Defendant did not appeal from this order.
Defendant's PCR petition was filed three years later. He alleged his trial attorney was ineffective because he failed to obtain an expert despite defendant's claimed insistence he "absolutely disagreed with the State's expert" that he had violated the law regarding medical billing. He maintained his innocence and stated he pled guilty, instead of insisting on a trial, because he was "stuck" due to his attorney's failure to get an expert. In support of his certification, he submitted the report of Dr. Douglas J. Jorgensen, who opined that defendant's admissions at his retraxit plea hearing did not support a criminal conviction because fluoroscopy was not required by the code until 2010.
The PCR judge denied defendant's petition and set forth his reasons in an oral decision. He found defendant's claim of innocence "not viable" because defendant's admissions at the time of his guilty plea constituted an acknowledgment that he sent in the wrong code for his billings and "clearly satisfied each element of theft by deception." He found the expert opinion regarding the CPT code to be irrelevant:
[A]ll that was required for the defendant's conviction of theft by deception was that the defendant purposely deceived insurance carriers by billing for services that he fraudulently claimed he performed on his patients. Simply put, the defendant defrauded insurance carriers by billing them for procedures he claimed he performed, but did not, in fact, perform.The PCR judge also concluded defendant's claim regarding his trial attorney's failure to obtain an expert was procedurally barred because defendant had raised this issue during his motion to withdraw his guilty plea.
In this appeal, defendant presents one argument: "The PCR court erred in not granting [him] an evidentiary hearing." Defendant contends he is entitled to an evidentiary hearing to present evidence that he is not guilty, relying upon the report provided by Dr. Jorgensen. We disagree.
As a preliminary matter, defendant's argument is procedurally barred. R. 3:22-4. Defendant had the opportunity in both his direct appeal and in his motion to withdraw his guilty plea to challenge the factual basis for his guilty plea. In his direct appeal, he explicitly did not do so, seeking only a restitution hearing. Although defendant did challenge the basis for his guilty plea in his motion to withdraw the plea, that argument was rejected by the motion judge and no appeal was taken.
Notwithstanding the procedural bar, we turn to defendant's argument that he was entitled to an evidentiary hearing so he might explain his innocence. A court should grant an evidentiary hearing on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). However, "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 94 (1997).
In assessing a defendant's case, we apply a standard like that used in summary judgment motions, see R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); and view the facts in the light most favorable to the defendant, Preciose, supra, 129 N.J. at 462-63, to determine whether he has demonstrated a reasonable likelihood that he will succeed in satisfying the two prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and adopted in State v. Fritz, 105 N.J. 42, 58 (1987). "[T]he first issue is whether counsel's performance was deficient. . . . The second, and far more difficult, prong . . . is whether there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
The linchpin to defendant's argument regarding the first prong is his reliance upon Dr. Jorgensen's report. In his two-page report, Dr. Jorgensen sets forth his credentials as a Certified Professional Coder, which include being co-author of the first and second editions of "A Physician's Guide to Billing and Coding." He asserts that his opinion and conclusion are based on his experience as well as the CPT text published by the American Medical Association and Medicare guidelines in effect when the billings that were the subject of the indictment occurred. Dr. Jorgensen rather emphatically states:
The primary argument . . . upon which the guilty plea was based [] was a lack of radiographic/fluoroscope guidance in connection with the injections performed by Dr. Feit. But imaging was NOT required during the lifetime in which Dr. Feit provided these procedures. In fact , the code did not reguire fluoroscopic guidance until 2010 - a full six years after the 2004 end date from when Dr. Feit's services were rendered .
Although Dr. Jorgensen alludes to changes in the CPT Code, he provides only his conclusions. There are no citations to provisions in the Code or amendments to illustrate or support his conclusory statements.
An expert's opinion must be based upon "facts or data . . . perceived by or made known to the expert at or before the hearing." N.J.R.E. 703. An expert must "'give the why and wherefore' of his or her opinion, rather than a mere conclusion." Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). A bare conclusion unsupported by factual evidence is a "net opinion" that is not only inadmissible, Buckelew v. Grossbard, 87 N.J. 512, 524 (1981), but also fails to establish an issue of fact. Brill, supra, 142 N.J. at 543-44.
Because we have only Dr. Jorgensen's word that defendant was not guilty of health care fraud, his report is no different than the certification rejected by the motion judge as presenting nothing more than a contradiction of the State's expert. Just as a net opinion will not create an issue of fact that precludes summary judgment, ibid., a conclusory opinion within the context of a PCR petition falls short of establishing a factual issue that requires an evidentiary hearing or prima facie evidence of the first prong of the Strickland/Fritz test.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION