STATE OF NEW JERSEY v. M.J.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6046-07T46046-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

M.J.,

Defendant-Appellant.

__________________________________

 

Submitted: November 5, 2009 - Decided:

Before Judges Cuff and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 92-07-1255.

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

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR). Defendant pled guilty in 1993 to second degree sexual assault, N.J.S.A. 2C:14-2b, and was sentenced to a ten-year term of imprisonment. He is now civilly committed at the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

The victim is defendant's niece. At the time of the sexual assault, she was six years old. She regularly visited defendant's mother with whom he lived. During these visits, defendant sexually assaulted the child.

Defendant pled guilty to second degree sexual assault. During his plea proceeding, defendant admitted that he "fondled" and "touched [his niece] in a sexual manner," in her genital area. He admitted that he did so for personal sexual gratification.

On appeal, defendant raises the following argument:

TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE WHEN SHE FAILED TO MOVE [TO] CORRECT THE PRESENTENCE REPORT.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law;

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

[R. 3:22-2.]

When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of ineffective assistance of counsel are well suited for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 460. The mere raising of such a claim, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 459-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, State v. Fritz, supra, 105 N.J. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984). Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

The crux of defendant's complaint regarding the representation afforded to him focuses on the pre-sentence period. He contends he was unaware that he would be eligible for civil commitment pursuant to the SVPA. He also alleges that trial counsel failed to correct a statement in the pre-sentence report which has delayed his release from the STU.

Judge Nieves denied defendant's PCR petition. He held that defendant could not find refuge in the ruling of State v. Bellamy, 178 N.J. 127 (2003) because its limited retroactivity did not extend to defendant. He also held that any factual inaccuracy in the pre-sentence report had no effect on the prior guilty plea or subsequent sentence imposed in accordance with the plea bargain. We address the latter issue first.

Defendant argues that the pre-sentence investigation contains an inaccurate account of the victim's report to her mother. When defendant pled guilty to second degree sexual assault, his attorney explained to the trial judge that the indictment had been amended because the victim denied penetration. The pre-sentence investigation contains a summary of the mother's report to police. It states:

On 4/18/92, [victim's mother] and [victim] were watching AMERICA'S MOST WANTED. The subject matter was child molestation. After the program was over [victim's mother] was talking with [the victim] who related that while at her grandmother's house, her uncle Maurice had been coming into her room, awaking her if she was sleeping, showing her his penis, taking her panties off, playing with her pubic and anal areas, kissing her on the mouth and fond[l]ing her breast.

In a separate section of the pre-sentence investigation entitled "SPECIAL FACTORS RELATIVE TO OFFENSE," it states:

Deft. was indicted on Aggravated Sexual Assault. The child's account that she gave to her mother included anal and vaginal intercourse and fellatio with the deft.

It is this statement that defendant argues is inaccurate and that trial counsel should have corrected at the time of sentence.

The two statements are inconsistent. The summary of the mother's report to police contains no reference to vaginal or anal penetration or fellatio. We cannot conclude, however, that this single inconsistency is the basis for defendant's continuing civil commitment in accordance with the SVPA. Notably, defendant served his ten-year term at the Adult Diagnostic and Treatment Center. Prior to his release, he was evaluated and ultimately civilly committed in accordance with the SVPA. N.J.S.A. 30:4-27.27; -27.28. He did not appeal the civil commitment order, N.J.S.A. 30:4-27.29, and his commitment had continued based on this annual review four times. Defendant is subject to an annual review of his civil commitment. The relationship, if any, between the single cited inconsistent statement in the pre-sentence report and his continuing commitment is too attenuated to establish a prima facie case of ineffective assistance of counsel.

Defendant also cannot establish that plea counsel provided ineffective assistance of counsel because she failed to counsel him about the possibility of civil commitment following completion of his penal term. Defendant entered his guilty plea on December 10, 1993; the judge imposed sentence on June 6, 1994. The SVPA was enacted in 1999 and became effective on August 12, 1999. In effect, defendant contends counsel was ineffective because she failed to predict and anticipate future legislative events. That is not the standard by which the performance of counsel is measured.

Moreover, the Bellamy ruling offers defendant no relief because defendant did not appeal his sentence. 178 N.J. at 143. The Court extended the effect of its ruling in Bellamy only to those whose cases were on appeal. Ibid. Defendant is plainly beyond any relief afforded by Bellamy.

 
Affirmed.

(continued)

(continued)

2

A-6046-07T4

RECORD IMPOUNDED

November 30, 2009