STATE OF NEW JERSEY v. PAUL ROCCIA

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0802-07T40802-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL ROCCIA,

Defendant-Appellant.

_______________________________

 

Submitted April 27, 2009 - Decided

Before Judges Sapp-Peterson and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Accusation No. 04-01-0299.

Yvonne Smith Segars, Public Defender, attorney for appellant (Andrew P. Slowinski, Designated Counsel, of counsel and on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Laurie A. Corson, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). In exchange for the plea, the State recommended a fifteen-year term of incarceration with an eighty-five percent "period of parole ineligibility and five years post-release parole" pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(c), community supervision for life (CSL) pursuant to N.J.S.A. 2C:7-1, and possible commitment pursuant to the Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The defendant agreed to waive any right to appeal. See R. 3:9-3(d). The court sentenced defendant in accordance with the terms of the plea agreement.

Defendant did not file a direct appeal. Instead, on December 30, 2004, defendant filed a certification in support of a petition for post-conviction relief (PCR) claiming ineffective assistance of counsel. Defendant claimed his trial counsel misled him by providing him with false assurances that he could be sentenced one degree lower to a seven-year custodial term. Additionally, defendant claimed his trial counsel: (1) failed to properly investigate the sexual abuse to which he had been subjected as a child, (2) strong armed him into accepting the plea agreement, and (3) sent an associate with no apparent knowledge of the case to appear at sentencing.

The trial court rejected all of these contentions, noting that in light of defendant's prior conviction for sexual assault, his exposure, if convicted, was substantial. He reasoned that under these circumstances, the plea negotiated by his attorney was generous.

In denying relief, the trial court first found that any claim that the sentence imposed was excessive should have been the subject of a direct appeal. Because defendant failed to exhaust all avenues of direct appeal, the court concluded that the petition was procedurally barred. Nonetheless, the court considered the merits of defendant's petition.

First, citing State v. Pierce, 115 N.J. Super. 346, 347 (App. Div.), certif. denied, 59 N.J. 362 (1971), the court reasoned that even if defendant's petition was not procedurally barred, "an allegation of [an] excessive sentence is not a ground for post-conviction relief . . . ." Next, referencing State v. Flores, 228 N.J. Super. 586, 595 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989), the court determined that defendant's challenge to how the trial court weighed the aggravating and mitigating factors "should [have been] addressed only by way of direct appeal . . . ."

Addressing the ineffective assistance of counsel claims under the two-prong Strickland/Fritz test, the court found that there was nothing in the record demonstrating that trial counsel's "performance was so deficient that he was not functioning as counsel . . . ." The court noted that at sentencing, the prosecutor represented to the court that the initial discussions contemplated a twenty-year sentence, which defense counsel, through negotiations, was able to persuade the State to reduce to a fifteen-year custodial term recommendation. As to the second prong, the court did not agree that the psychological evaluation prepared on defendant's behalf by Dr. Philip H. Witt, Ph.D., would have resulted in a further reduction of defendant's sentence:

Defendant argues that armed with this additional information and presented with a heartfelt appeal by trial counsel, the [j]udge would have been persuaded that mitigating factors existed which would have tipped the balance of aggravating and mitigating factors so drastically in his favor that the [j]udge would have, within a reasonable probability, departed from the negotiated plea agreement.

Defendant suggests that the [j]udge would have found Mitigating Factor 2, that the defendant never contemplated his conduct would cause or threaten serious harm, and Mitigating [Factor] 4, that there were grounds tending to justify the defendant's conduct, though failing to establish a defense.

It would appear that a defendant who commits a second sexual assault after receiving treatment for his illness would be well aware that his conduct would cause serious harm. Just as clearly, prior abuse is not a justification for abusing others, and so, under the two prongs of Strickland, trial counsel's decision not to argue for a downward departure from the plea agreement was not deficient at all, but a realistic assessment of the circumstances and two, having argued these matters to the [j]udge, there would not have been a reasonable probability, I conclude, that Mr. Roccia would have been successful.

Finally, the court found defendant's claim that the full penalties to which he would be exposed as a result of the plea were not fully explained to him, was "clearly false." The court noted that defendant's exposure was "explained to him by his attorney. They were set forth in the plea papers he signed, and most importantly, by the [j]udge at time of taking his plea." The court concluded that defendant failed to establish a prima facie case for post-conviction relief based upon ineffective assistance of counsel and that his claims were otherwise procedurally barred. The present appeal followed.

On appeal defendant raises the following points for our consideration:

POINT I

DEFENDANT'S CONVICTION SHOULD BE VACATED BECAUSE THE TRIAL COURT FAILED TO TAKE APPROPRIATE MEASURES BEFORE SENTENCING TO DETERMINE THAT DEFENDANT'S GUILTY PLEA HAD BEEN VOLUNTARILY ENTERED, EVEN THOUGH THE COURT HAD BEEN NOTIFIED IN WRITING BY DEFENSE COUNSEL THAT DEFENDANT BELIEVED THE PLEA TO BE INVOLUNTARY. (PARTIALLY RAISED BELOW).

POINT II

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT'S PETITION ON THE GROUNDS OF INEFFECTIVE ASSISTANCE OF COUNSEL DURING A CRITICAL PHASE OF PRETRIAL PROCEEDINGS IN VIOLATION OF DEFENDANT'S RIGHTS UNDER THE SIXTH AMENDMENT AND ARTICLE I, PAR. 10 OF THE NEW JERSEY CONSTITUTION.

POINT III

THE POST-CONVICTION RELIEF COURT SHOULD HAVE GRANTED AN EVIDENTIARY HEARING ON DEFENDANT'S PETITION IN VIEW OF COMPELLING EVIDENCE THAT DEFENDANT MADE CONTEMPORANEOUS COMPLAINTS REGARDING HIS TRIAL COUNSEL'S FAILURE TO PROVIDE EFFECTIVE ASSISTANCE DURING PLEA NEGOTIATIONS AND SENTENCING.

POINT IV

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO REDUCE DEFENDANT'S SENTENCE AS MANIFESTLY EXCESSIVE IN RELATION TO SENTENCES IMPOSED ON OTHER DEFENDANTS IN SIMILAR CASES.

POINT V

DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED FOR THE REASONS SET FORTH IN DEFENDANT'S PRO SE MEMORANDUM IN SUPPORT OF HIS PETITION.

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant extensive discussion in a written opinion, Rule 2:11-3(e)(2), and we affirm substantially for the reasons expressed by Judge Frederick J. Schuck in his thorough and well-reasoned oral opinion of June 22, 2007. Nonetheless, we add the following comments.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Afanador, 151 N.J. 41, 49 (1997). "It is a safeguard for ensuring that a defendant was not unjustly convicted." Ibid. While post-conviction relief exists in order to provide a forum for raising issues that a petitioner could not raise on direct appeal, it is not a substitute for direct appeal. R. 3:22-3; Afanador, supra, 151 N.J. at 50. To reinforce this principle, Rule 3:22-2 delineates the grounds upon which relief may be sought. Rule 3:22-4 bars, except in narrowly defined circumstances, asserting grounds for relief that could have been raised on direct appeal.

Ordinarily, absent egregious circumstances, a claim of an excessive sentence for a "'sentence otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground for post-conviction relief and can only be raised on direct appeal from the conviction.'" Flores, supra, 228 N.J. Super. at 592 (quoting State v. Clark, 65 N.J. 426, 437 (1974)). Defendant was charged with first-degree aggravated sexual assault. It is undisputed that had he gone to trial and been convicted, he was eligible for sentencing as a persistent offender. See N.J.S.A. 2C:47-3. Based upon his prior record, defendant faced a life sentence with at least a sixty-three-year period of parole ineligibility. Under these circumstances, we are in complete agreement with Judge Schuck's conclusion that the plea offer extended to defendant was generous. We see no egregious circumstances present here that warrant relaxation of the general rule that claims of excessive sentence be addressed on direct appeal. Clark, supra, 65 N.J. at 437-38.

Further, defendant's claims related to ineffective assistance of his trial counsel are completely unsupported by the record. At the time defendant entered his guilty plea, he expressed satisfaction with the services provided on his behalf by trial counsel and acknowledged that his attorney had satisfactorily answered all of his questions. Additionally, although an associate appeared on defendant's behalf at sentencing due to the unavailability of his trial counsel, defendant advised the court that additional questions for which he sought answers were answered by trial counsel's associate as well as by the Public Defender.

Thus, Judge Schuck properly found defendant failed to establish a prima facie case for post-conviction relief based upon ineffective assistance of counsel.

Affirmed.

 

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52-58 (1987).

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A-0802-07T4

July 1, 2009