STATE OF NEW JERSEY IN THE INTEREST OF C.P.H

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0936-08T40936-08T4

STATE OF NEW JERSEY

IN THE INTEREST OF C.P.H.

__________________________________

 

Submitted March 9, 2010 - Decided

Before Judges Carchman and Ashrafi.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FJ-03-1313-02.

William H. Buckman Law Firm, attorneys for appellant C.P.H. (Mr. Buckman and Lilia Londar, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent State of New Jersey (Stephen E. Raymond, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant-juvenile C.P.H. appeals from an order of September 23, 2008, denying his petition for post-conviction relief (PCR) under Rule 3:22. We reverse and remand for an evidentiary hearing.

On January 2, 2002, the sixteen-year-old juvenile was charged with first-degree aggravated sexual assault and related offenses. On July 11, 2002, he admitted guilt to second-degree sexual assault and two petty disorderly persons charges of harassment. The Family Part sentenced him to a suspended term of one year detention at Jamesburg Training School for juvenile offenders and three years probation with specified conditions.

The October 4, 2002 juvenile order of disposition has no check-off for Megan's Law notification, but it specifies sex specific treatment. On the date of sentencing, the court's recording equipment did not function. As a result, we do not have a record of what the Family Part judge said at that proceeding regarding Megan's Law, or other matters relevant to the current appeal. The juvenile does not dispute, however, that the registration and notification requirements of Megan's Law, N.J.S.A. 2C:7-2 to -5, apply to his juvenile adjudication of a sex offense. See In re Registrant J.G., 169 N.J. 304, 319 (2001) (Megan's Law applies to juveniles). He contends that he was not adequately advised by his attorney regarding the permanent nature of those requirements.

The sex charges were brought because the juvenile engaged in sexual intercourse with a sixteen-year-old girl at a New Year's Eve party on January 1, 2002. The girl was highly intoxicated and allegedly did not consent to the sexual act. When her parents learned of the incident, they took their daughter to the police to report that she had been sexually assaulted. The police interviewed and took statements from several teenagers who attended the party. Through that investigation, defendant and two other boys were charged with juvenile offenses.

The police investigation determined that the party was unsupervised, and teenagers were drinking alcohol and engaging in sexual activity. According to the victim's statement, she went to sleep in a bedroom after 2:00 a.m. She woke up to the noise of pounding on the door and found C.P.H. on top of her and having sexual intercourse with her. She said she did not consent to the sex.

A female friend of the victim told the police that the victim was passed out in an upstairs hallway at about 11:30 p.m., and the friend helped her to a bed. A few hours later, she heard a boy outside the bedroom door say that C.P.H. was inside with the victim and he was going in next, implying that he intended to have sexual intercourse with the girl while she was sleeping. The victim's friend found the door locked, and she knocked loudly. After shouting and cursing back at the friend, C.P.H. eventually opened the door and came out with his pants undone. The victim was extremely groggy, and she later told the friend that she had been raped. Another girl argued with C.P.H. to leave the house, which he refused to do, and C.P.H. was then seen throwing a condom on the floor.

One of the male witnesses told the police that he and three other boys, including C.P.H., noticed that the victim was asleep in the bedroom. C.P.H. and another boy stayed in the room while the witness and the fourth boy went downstairs. He later heard the commotion of pounding on the door and the argument about C.P.H. leaving the house. He saw C.P.H. throw a condom on the floor.

The boy who stayed in the bedroom with C.P.H. was the same boy who allegedly was overheard outside the bedroom door waiting to go in after C.P.H. He told the police that he and C.P.H. woke the victim up. He said the victim and C.P.H. began to kiss and engage in sexual activity. He described the girl as awake but "out of it." He said he left the room and went downstairs.

Other teenage witnesses saw less of what happened. They gave the police information about the party, taking sides with either the victim or C.P.H. Several claimed that they saw the victim earlier in the night engaged in kissing and suggestive sexual activity with C.P.H. One of the victim's friends said she heard boys talking earlier in the night about taking sexual advantage of the victim because she was drunk and they did not respect her, but that group of boys did not include C.P.H. Other witnesses alleged that the victim engaged in sexual activity with other boys at the party before the incident with C.P.H.

C.P.H. did not give a statement to the police. At the time of his admission of guilt, he answered leading questions from his attorney and the prosecutor, stating that he had sexual intercourse with the victim and that she had not consented. Before his sentencing, C.P.H. was interviewed by a court-appointed psychologist for a sex offender risk assessment. In that interview, he claimed that the girl had been awake before the sexual intercourse, that they were both drunk, and that the two had spoken about his using a condom. The psychologist concluded that C.P.H. was not a sexual offender but that the incident is more aptly described as "a bunch of high school students getting drunk and then acting irresponsibly."

On October 4, 2007, exactly five years after his sentencing, C.P.H. filed a PCR petition alleging that his attorney had represented him ineffectively. He asserted he had always declared his innocence to his attorney, but defense counsel failed to conduct adequate investigation of the witnesses to support his defense, failed to consult adequately with C.P.H. and his parents before his admission of guilt, and erroneously told C.P.H. and his parents that Megan's Law did not apply to his sentence because he was a juvenile.

The Family Part judge who had taken the plea and sentenced C.P.H. heard argument on the PCR petition in 2008. Without holding an evidentiary hearing, the judge issued a detailed, fourteen-page opinion denying the petition. He relied on the transcript of the plea hearing of July 11, 2002, on the plea form signed by C.P.H. and his father on that date, and on a certification by defense counsel regarding his investigative efforts and representation of C.P.H. The judge concluded that the PCR petition did not establish a prima facie showing that the attorney's performance was deficient or that C.P.H. was prejudiced by the alleged ineffective representation.

On appeal, C.P.H. raises the following points:

POINT I DEFENDANT PRESENTED A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

POINT II THE COURT IMPROPERLY DENIED AN EVIDENTIARY HEARING ON [C.P.H.]'S PETITION FOR POST-CONVICTION RELIEF.

We agree with these points as they relate to the juvenile's allegation that his attorney never advised him that Megan's Law obligations would apply permanently. We conclude that the PCR court should have held an evidentiary hearing to resolve disputed issues of fact outside the record of proceedings and to make factual findings on an evidentiary record as to the truth of the juvenile's allegations that he was given inadequate Megan's Law advice.

In considering a petition for post-conviction relief, the court begins with a presumption that the juvenile received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and article I, paragraph 10, of the New Jersey Constitution. See Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). The juvenile bears the burden of proving that his attorney was ineffective in his defense. Ibid.

In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the United States Supreme Court established a two-part test for evaluating claims of ineffective assistance of counsel.

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

To satisfy the second part of this test, "[t]he defendant must show that there is 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 Strickland standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

Where ineffective assistance is alleged following a guilty plea, a defendant satisfies the second part of the Strickland test by showing "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).

On appeal, the standard of review from the decision of the PCR court is plenary on questions of law. See State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The factual findings of that court, however, are granted deference if they are supported by adequate, substantial, and credible evidence. Ibid.

Initially, we reject the State's contention that the claims C.P.H. raises in this PCR petition are barred by Rule 3:22-4 because they could have been raised in prior proceedings. Allegations of ineffective assistance of counsel are usually not ripe for review on direct appeal. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).

The State argues that the juvenile could have challenged through direct appeal the inclusion of Megan's Law requirements in his sentence. That argument neglects the specifics of the claim C.P.H. now makes. He states that, at time of his plea, it was his belief he would be required to register and notify the police under Megan's Law only during the term of his sentence. He alleges ineffective assistance of counsel for failing to advise him and his parents that Megan's Law obligations are permanent. If true, C.P.H. likely would not have been able to raise this issue on a timely-filed direct appeal. He is not barred from raising the issue by means of a PCR petition.

The primary issue before us is whether the PCR court erred in deciding the matter without an evidentiary hearing. In Preciose, supra, 129 N.J. at 462-63, the Court stated:

[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief. As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim.

"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of succeeding under the test set forth in Strickland v. Washington[.]" State v. Goodwin, 173 N.J. 583, 596 (2002). However, where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).

Here, the juvenile made specific allegations of ineffective assistance of counsel and supported those allegations with his own verification of the PCR petition and certifications from both his parents. As to some of those allegations, the trial court correctly ruled that C.P.H. had not established a prima facie claim of ineffective assistance of counsel.

C.P.H. alleged that his attorney did not conduct an adequate investigation by interviewing the teenage witnesses to prepare his defense. In response, the State proffered the certification of C.P.H.'s defense counsel stating that he hired a private investigator to interview the witnesses, that C.P.H.'s parents met the investigator and made payment arrangements directly with him, and that defense counsel recalls having many conversations during the pendency of the case with C.P.H. and his parents about the defense and the decision to enter a plea of guilty. According to defense counsel, the private investigator reported to him that the teenage witnesses were either unwilling to be interviewed or unwilling to provide exculpatory information.

Many of C.P.H.'s contentions regarding inadequacy of defense investigation can be dismissed as unlikely to have aided the defense. For example, C.P.H. now finds fault with his attorney for not gathering evidence that would have been inadmissible in any event, such as hearsay statements or the opinions of the teenagers regarding whether the victim may have wanted earlier in the night to have sexual relations with C.P.H.

The significant contested issue in defense of the charges was whether the victim had actually consented to the intercourse at about 3:00 a.m. in the bedroom. C.P.H. maintained that the victim consented because she was awake before the intercourse, and they had discussed using a condom. The victim denied that she was awake or consented. Nothing in the record suggests the victim or her parents would have agreed to her being interviewed by defense counsel or the private investigator, as the PCR petition contends should have been done. If the juvenile had gone to trial, the consent issue may have come down to his word against hers.

The only other witness with some knowledge of the events immediately preceding the sexual intercourse, the other boy who intended to follow C.P.H. into the room, told the police that the victim had awakened and engaged in kissing and other voluntary sexual activity with C.P.H. The PCR court inferred that the boy's testimony may have harmed rather than helped the defense because the boy had said the victim was "out of it" when she woke up. More important to the specific issue of consent in dispute, there is no indication in the record that the boy was in the room when C.P.H. and the victim allegedly discussed whether he should use a condom. Apparently, the witness could not provide that exculpatory evidence in support of the defense.

Moreover, the boy was a friend of C.P.H., and he was himself accused of being a participant in the plan to assault the victim sexually. Charges were brought against him. Even if he would have been willing to speak to the investigator, his information was unlikely to alter the dynamics of the case the testimony of the victim against that of her alleged assailants.

Considering the investigative efforts that were documented, and the remote chance that any of the witnesses could provide exculpatory information about the central issue in the case, the PCR court did not err in concluding that C.P.H. has not shown a prima facie case of inadequate investigation by his defense attorney.

We agree with the juvenile, however, that the PCR record does not adequately address the Megan's Law issue. C.P.H. and his parents alleged that defense counsel advised them that Megan's Law did not apply to his charges because he was a juvenile. In responding to the Megan's Law allegations, defense counsel's certification said:

I do not recall the specifics of discussion surrounding the implication of Megan's Law other than to have advised that it would have been imprudent to opine as to the potential tier classification though I may have indicated my belief that [C.P.H.] would not likely be subjected to the highest level of classification and/or resulting conditions. I have not had the opportunity to review transcripts of any court appearances; however, I do recall a colloquy on the record regarding Megan's Law and the fact that determination of the potential classification would be left to a separate hearing (of which I was not a part).

The PCR court rejected C.P.H.'s contention that he received incorrect advice on Megan's Law, citing the plea form and the colloquy in open court at the time of the admission, both of which contradict the alleged erroneous advice that Megan's Law did not apply. Defense counsel's certification is consistent with the transcript of the July 11, 2002 plea hearing, at which time the court informed C.P.H., in the presence of his parents, that he would have to register annually under Megan's Law, and then discussed the tier classification system that would determine his Megan's Law obligations through a subsequent hearing.

However, neither defense counsel's certification nor the record of court proceedings made any reference to the permanency of the Megan's Law obligation. Neither was so comprehensive and irrefutable that an evidentiary hearing would have been of no assistance in resolving that disputed fact. At the time of the plea, the court did not state that the registration and notification requirements would be a lifetime obligation. Likewise, the plea form signed by C.P.H. and his father contained information and questions regarding the juvenile's understanding of Megan's Law registration and notification requirements, but it did not state the duration of the obligation.

The PCR court resolved a factual dispute as to whether C.P.H. was adequately advised about the permanency of Megan's Law obligations without an evidentiary record. The court did not view the facts alleged by C.P.H. in a light most favorable to him.

C.P.H. contends he would have elected to stand trial if he had been advised that Megan's Law requirements were permanent. Megan's Law requirements, especially for a juvenile sex offender, are an important consequence of conviction of a sex crime. A juvenile admitting guilt to a sex offense must be given accurate advice about the Megan's Law consequences of his plea. Cf. Padilla v. Kentucky, ___ U.S. ___, ___, 130 S. Ct. 1473, 1482, 176 L. Ed. 2d 284, 294 (2010) (ineffective assistance of counsel in failure to advise defendant before guilty plea about risk of deportation); State v. Jamgochian, 363 N.J. Super. 220, 227 (App. Div. 2003) (potential ineffective assistance of counsel in failing to advise defendant that community supervision for life would include travel restrictions). The record before us does not contain evidence that C.P.H. and his parents were informed he would have to register under Megan's Law for the rest of his life.

Also, in its written opinion, the PCR court stated: "Nothing presented to this court shows a probability that if [C.P.H.] had chosen to go to trial he would have been acquitted." That conclusion placed a higher burden on the juvenile than was necessary to prove his entitlement to a new trial. The juvenile does not have to prove that he would have been acquitted at trial, only that he would not have admitted guilt. See Hill, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.

We do not suggest that, in a case where the evidence of guilt is particularly strong, it is inappropriate for the PCR court to consider whether the result after trial would likely have been any more favorable. Here, the record suggests that C.P.H. had viable defenses to the charges, and the court itself described the consent issue as "a very close question." The State's case was not irrefutable.

We also do not decide here that C.P.H. is entitled to set aside his admission and adjudication of guilt. We only hold that a full evidentiary record, rather than untested and incomplete certifications, was necessary to resolve the disputed factual issues of what Megan's Law advice was given to C.P.H. outside the record of proceedings and, if that advice was faulty, whether he would have chosen to stand trial and risk a more severe sentence. See State v. Cooper, 410 N.J. Super. 43, 56 (App. Div. 2009) ("Hearings are required on ineffective assistance of counsel claims where there is a factual dispute on matters that are not part of the record, and where 'a defendant has presented a prima facie claim in support of post-conviction relief.'" (quoting Preciose, supra, 129 N.J. at 461-62)), certif. denied, 201 N.J. 155 (2010); State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (evidentiary hearing should be granted where facts supporting the PCR petition are outside the trial record), certif. denied, 162 N.J. 199 (1999).

We conclude C.P.H. established a prima facie case that entitled him to an evidentiary hearing to prove his allegations that he was given inadequate information and advice about the Megan's Law consequences of his admission of guilt. The PCR court erred in deciding that disputed factual issue against the juvenile without an evidentiary hearing.

Reversed and remanded for an evidentiary hearing.

 

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A-0936-08T4

RECORD IMPOUNDED

July 23, 2010