STATE OF NEW JERSEY v. JOHN VALANOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5379-06T45379-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN VALANOS,

Defendant-Appellant.

______________________________________________________

 

Submitted March 23, 2009 - Decided

Before Judges Carchman and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 03-01-0052.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ingrid A. Enriquez, Designated Counsel, on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

R. B. COLEMAN, J.A.D.

Defendant, John Valanos, appeals from a final order entered on April 16, 2007 by the Law Division, denying his petition for post-conviction relief (PCR). Defendant argues that he received ineffective assistance by trial counsel and by appellate counsel. The PCR judge rejected those arguments, making the following observations and findings:

The question here is whether there was an ineffective assistance of counsel claim that has any merit, both trial counsel and appellate counsel. In reviewing the transcript that was submitted as part of the material, which has been referred to at length here, [trial counsel] goes into great detail of the meetings that took place between himself and the defendant with and without the interpreter. That he went over thoroughly with him his potential defense. [Trial counsel] at page four says "I have had lengthy, lengthy, conversations with my client regarding the termination of consent and how the law applies to that. Given the level of intoxication that resulted that particular evening the young women [sic] eventually passed out or fainted. At that point, I have explained in great detail to Mr. Valanos how any type of implied consent that may or may not have existed, should a jury even believe it, would have terminated upon that event." And he goes on beyond that.

I'm not going to reread what's been read and reread here in this proceeding. But, my reading of the 24-page transcript of the plea which I did review a tape before I decided his motion regarding the trial level's plea at the time of resentencing, my review on both occasions is that this plea was given knowingly, intelligently and voluntarily with full assistance of competent counsel who had thoroughly reviewed the matter not only himself but also with the defendant on more than one occasion.

. . . .

[T]he issue with regard to ineffective assistance of counsel is obviously governed by Strickland Fritz test that requires that counsel make errors so serious that he was not functioning as counsel. In other words, he is a clearly deficient performance [sic]. And, secondly that the deficient performance must have been so serious as to deprive the defendant of a fair trial or fair representation. I don't find that to be the case here either at the trial level or the appellate level. I find that the appropriate arguments were raised. With regard to the plea itself I find that the matter was thoroughly reviewed by counsel with Mr. Valanos, he was questioned appropriately, he answered the questions appropriately, and that [the] plea was appropriately taken. I don't find that there was any improper advice or lack of advice given. With regard to the counsel I find the same thing applies.

For substantially the reasons expressed by Judge Walter L. Marshall in his oral opinion from the bench, we affirm the denial of defendant's petition. Notwithstanding that summary basis for our disposition, we elaborate further.

Defendant raises the following points of argument for our consideration on appeal:

POINT I: NO OTHER CONCLUSION CAN BE REACHED BUT THAT COURT BELOW ERRED IN CONCLUDING DEFENDANT HAD NOT BEEN DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

a. Trial counsel was ineffective in allowing defendant to enter a plea of guilty where defendant failed to provide a factual basis supporting the offense charged.

b. Defendant was prejudiced by trial counsel's failure to prevent a guilty plea with a contemporaneous affirmative defense.

c. Defendant was prejudiced by the ineffective assistance rendered by appellate counsel.

POINT II: NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECTIVE OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

We reject defendant's arguments.

The matter arises out of events that occurred on August 16, 2002. That evening, the manager of Adelphia's Restaurant in Deptford, New Jersey, asked defendant to drive A.B. home because A.B. had become extremely drunk at the restaurant's bar. While defendant was driving her home, A.B. fell asleep and was unable to direct him to her apartment. During the hours that followed, A.B. experienced intermittent periods of consciousness and unconsciousness. Defendant admitted, both in statements to the police and during his plea hearing, that he had sexual contact with A.B. while she was asleep.

The Gloucester County Grand Jury returned Indictment No. 03-01-0052 charging defendant in five counts with three first-degree offenses and two second-degree offenses: first-degree kidnapping, contrary to N.J.S.A. 2C:13-1(b) (count one); first-degree attempted aggravated sexual assault, contrary to N.J.S.A. 2C:5-1 and 2C:14-2(a) (count two); first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a) (count three); second-degree attempted sexual assault, contrary to N.J.S.A. 2C:5-1 and 2C:14-2(c) (count four); and second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c) (count five).

On April 21, 2003, defendant agreed to enter a plea of guilty to count five of the indictment. In exchange, the State agreed to dismiss the remaining four counts and to recommend a seven-year prison sentence subject to the eighty-five percent parole ineligibility period of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. At the plea hearing, defendant responded to the questions of his attorney as follows:

Q. After she passed out[,] [d]id you drive her around for a time period?

A. Yes.

. . . .

Q. And she was still at this point, unconscious?

A. Yes.

Q. And during this time period did you have opportunity to touch her?

A. Yes. I tried to wake her up.

Q. And did you touch her? What did you touch her with?

A. My hand.

. . . .

Q. We talked about this in the holding cell. Did you touch her private areas?

A. Yes.

Q. Which private area did you touch?

A. Her chest and vagina.

Q. And when you touched her vagina was it underneath her under garments?

A. Yes.

Q. And you and I have discussed in the eyes of the law that this a type [sic] of penetration. And you understand that?

A. Yes.

Q. And during this time period when you were touching her private area, she was still passed out or asleep, in your words?

A. Sleeping yes. She was moving, but she was sleeping.

The prosecutor then questioned defendant, asking him whether his fingers went "inside" A.B.'s vagina. Defendant responded "No." That unexpected response prompted a recess, after which defendant provided the following testimony under questioning by defense counsel:

[Defense counsel]: . . . When the prosecutor asked you whether you penetrated or not, you answered no. Is that true? In her private area, in her vagina. When the prosecutor asked you if you had penetrated her vagina, you answered her [sic] no. Is that true?

A. When?

Q. A few minutes ago? When this gentleman asked you if you had penetrated A.B., you answered no. And the reason that you did that is because you are embarrassed. And we talked --

A. Yes.

THE COURT: Yes, he was embarrassed.

A. Yes.

[Defense counsel]: And I just discussed with the interpreter what took place.

A. Yes.

Q. And I want to go back over specifically what we talked about in the holding cell. I asked if your hand was touching her vagina.

A. Yes.

Q. And your answer was yes, correct? And you attempted to insert your fingers inside her vagina; correct?

A. Yes.

Q. And you were unsuccessful; correct? And you were unsuccessful because one she was asleep, and she lack [sic] the necessary lubrication; correct?

A. Yes.

Q. But in the process you were touching the outer edges of her vagina; correct?

A. Yes.

The trial court found that defendant's testimony established a factual basis from which to conclude that defendant carried out sexual penetration by physical force, fulfilling the elements of second-degree sexual assault, N.J.A.C. 2C:14-2(c). The trial court also stated that it found defendant's plea and waiver of rights was knowing, voluntary and intelligent based on its perception of the proceedings.

However, at the sentencing hearing on August 8, 2003, defendant sought to withdraw his plea because defendant thought that counsel had not explained to him adequately the plea negotiations. Defense counsel further informed the court that "there have been times where [defendant] has expressed both a desire to resolve the case and to assert his innocence. At [that] particular juncture [immediately before the sentencing hearing], . . . he [was] asserting his innocence." The trial court denied defendant's request to withdraw the plea, finding that the record established the knowing, voluntary nature of defendant's plea and no "good faith plausible cause" for withdrawal. Accordingly, sentencing proceeded in accordance with the plea agreement.

Defendant appealed and on January 10, 2006, the matter came before this court on a calendar scheduled pursuant to Rule 2:9-11.

Rule 2:9-11 provides:

In a criminal, quasi-criminal or juvenile action in the Appellate Division in which the only issue on appeal is whether the court imposed a proper sentence, briefs shall not be filed without leave of court and the matter shall be placed on a sentencing calendar for consideration by the court following oral argument, which shall be recorded verbatim. The appellate court at its discretion may direct the removal of any case from the sentencing calendar.

During that proceeding, defendant's appellate counsel argued that Valanos' motion to withdraw his plea had been wrongfully denied. She argued that Valanos did not understand his plea and that there was no factual basis in the record to support a second-degree sexual assault charge because defendant's admissions did not establish that there had been any penetration. The panel issued an order that same day affirming the sentence imposed; the order recited the panel's conclusion that the sentence was not manifestly excessive or unduly punitive. The order also recited that "the issues on appeal relate solely to the sentence imposed."

Thereafter, defendant's appellate counsel wrote a letter to the panel asking that the order be amended to reflect the arguments actually made during the oral argument, namely, that the plea lacked a sufficient factual basis and defendant had not understood the plea agreement. On February 16, 2006, the panel issued an amended order which stated:

Having considered the record and argument of counsel, and it appearing that the issues on appeal relate to withdrawal of the defendant's guilty plea on the basis of his alleged failure to understand its consequences and the alleged lack of a sufficient factual basis, we find those arguments to be without merit and we affirm.

Defendant then filed a petition for certification and on April 11, 2006, the Supreme Court denied defendant's petition. State v. Valanos, 186 N.J. 604 (2006). Defendant next filed the petition for post-conviction relief, which resulted in the order from which this appeal has been taken.

I.

At the outset, we note that Rule 3:22-5 of the Rules Governing the Courts of the State of New Jersey provides that "[a] prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from such proceedings." Here, the trial judge ruled, before sentencing, that defendant would not be permitted to withdraw this plea, and that ruling was upheld on appeal. Thereafter, the same judge held that Rule 3:22-5 applies to preclude defendant's petition based on the arguments that (1) his plea lacked a factual basis and (2) he did not understand the plea agreement. These issues were previously adjudicated on the merits at the sentencing hearing and in defendant's appeal that was argued on January 10, 2006. The PCR judge emphasized that our amended order, dated February 15, 2006, was entered at the specific request of defendant, who had wanted his attorney to insure that our order reflected the issues actually argued to the panel. The amended order identified those arguments and found them to be "without merit."

Rule 2:9-11 contemplates expedited appeals, without briefs, where ordinarily the only issue on appeal is the propriety of the sentence. See generally State v. Bianco, 103 N.J. 383 (1986) (finding the Excessive Sentence Oral Argument Program constitutional). In this instance, a review of the transcript of the oral argument on defendant's prior appeal and of the amended order dated February 15 discloses clearly that defendant did not limit his challenge to the propriety of the sentence. He was then challenging the trial court's denial of his request to withdraw his guilty plea and was asserting that the factual recitation did not support the conviction. The PCR judge is therefore correct in his conclusion, that the issue of the validity of defendant's plea was previously adjudicated. Moreover, the withdrawal of a guilty plea is within the broad discretion of the trial court. State v. Bellamy, 178 N.J. 127, 135 (2003). Hence, Rule 3:22-5 precludes defendant's petition. It follows that Rule 3:22-5 precludes this appeal to the extent it relates to the denial of defendant's request to withdraw his guilty plea.

On the other hand, to the extent the arguments are being asserted now in the context of claims of ineffective assistance of counsel, they are cognizable. See State v. Preciose, 129 N.J. 451, 460 (1992) (recognizing that "[i]neffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding"). In that context, this appeal is not barred. Post-conviction relief is a safeguard to prevent the unjust conviction of defendants, State v. McQuaid, 147 N.J. 464, 482 (1997), and although it is not a substitute for an appeal, claims that differ from those already asserted are cognizable. State v. Afanador, 151 N.J. 41, 51 (1997). The bar applies only if the issue asserted is "identical or substantially equivalent" to the issue already adjudicated on the merits. McQuaid, supra, 147 N.J. at 484.

Thus, in spite of the ruling by the PCR judge that Rule 3:22-5 applied, he addressed the merits of defendant's argument that counsel had been ineffective in allowing defendant to enter his guilty plea and in failing to direct the attention of the court to the inadequacy of the factual recitation given by defendant. Because defendant's ineffective assistance of counsel claims arguably were not encompassed within the prior Rule 2:9-11 proceeding and in the interest of completeness, we shall also address those claims more fully.

II.

Defendant argues that trial counsel and appellate counsel were both ineffective. In addition to the argument that the facts elicited in defendant's plea testimony did not support the second-degree sexual assault conviction, defendant argues that counsel were ineffective because they never procured a waiver of the affirmative defense of victim consent, or they failed to advance that waiver argument as a ground for setting the plea aside. We find both of these arguments to be without merit.

In order to establish a prima facie case of ineffective assistance of counsel, a "defendant must show that '[defense] counsel's performance was deficient,' and that there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Nunez-Valdez, 200 N.J. 129, 138-39 (2009) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2069, 80 L. Ed. 2d 674, 698 (1984)). See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test). Adequate assistance of counsel should be measured by a standard of "reasonable competence." Fritz, supra, 105 N.J. at 60. That standard does not require "the best of attorneys," but rather requires that attorneys be "not . . . so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989), superseded by statute on other grounds as recognized by State v. Cruz, 163 N.J. 403, 411 (2000). "[T]he defendant must overcome a 'strong presumption' that counsel exercised 'reasonable professional' judgment and 'sound trial strategy' in fulfilling his responsibilities." State v. Loftin, 191 N.J. 172, 198 (2007). Strategic decisions of trial counsel made after a thorough investigation are "virtually unchallengeable." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695; see also State v. Martini, 160 N.J. 248, 266 (1999); State v. Savage, 120 N.J. 594, 617-18 (1990).

In the context of reviewing the adequacy of counsel's performance that relates to a defendant's entry of a guilty plea, the Court has said:

When a guilty plea is part of the equation, we have explained that "[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial."

[Nunez-Valdez, supra, 200 N.J. at 139 (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994) (internal quotations omitted)).

With these standards in mind, we are convinced that defendant's counsel's performance was not deficient for allowing him to plead guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c), and defendant was not prejudiced by counsel's performance on the enforcement of the plea agreement. In our assessment, we take cognizance of the requirement of Rule 3:9-2, which provides that a trial judge may not accept a plea of guilty without first determining that "there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea." It has been said that the judge must be "'satisfied from the lips of the defendant that he committed the acts which constitute the crime,'" State v. Slater, 198 N.J. 145, 155 (2009) (quoting State v. Smullen, 118 N.J. 408, 415 (1990)), but the Court has also recognized that in certain sensitive situations, leading questions are permissible. Smullen, supra, 118 N.J. at 415.

Defendant asserts that his plea testimony did not establish the facts necessary to prove "penetration," an element of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1). That statutory provision provides in pertinent part that "[a]n actor is guilty of sexual assault if he commits an act of sexual penetration with another person . . . [where] [t]he actor uses physical force or coercion, but the victim does not sustain severe personal injury[.]" In State v. J.A., 337 N.J. Super. 114, 119 (App. Div.), certif. denied, 169 N.J. 606 (2001), we recognized that the statutory definition of "penetration" includes "any amount of insertion, however slight, . . . to the outer area of the vaginal opening, what is commonly referred to as the vaginal lips[.]" As clearly stated in the statute, "the depth of insertion is not relevant as to the question of commission of the crime." N.J.S.A. 2C:14-1(c). See also State v. Fraction, 206 N.J. Super. 532, 536 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986) (holding that cunnilingus, by licking the labia, constitutes an act of sexual penetration, although the actor's tongue is not inserted into the vagina). Defendant contends that his plea testimony did not establish penetration because he never explicitly stated that his fingers penetrated A.B.'s vaginal opening, but rather he only admitted to touching the "outer edges" of her vagina.

We are satisfied, as was the panel that presided over defendant's Rule 2:9-11 hearing, that defendant's plea testimony did, in fact, establish an adequate factual basis to support his guilty plea. In that testimony, defendant testified that he "attempted to" stick his fingers inside A.B.'s vagina but that she lacked the necessary lubrication because she was asleep. The fact that defendant made an "attempt" to insert his fingers inside A.B.'s vagina in such a manner as to become aware that A.B. lacked the necessary lubrication provides enough evidence to support an inference that the insertion, though slight, was sufficient to constitute penetration. J.A., supra, 337 N.J. Super. at 119. While defendant emphasizes the portion of his testimony in which he stated that he touched the "outer edges" of A.B's vagina, he never stated, nor could he reliably state, that his contact with A.B's vagina was limited to the "outer edges."

Notwithstanding that inference, we again note that the proper focus of our review of the denial of defendant's petition is not upon whether there was actually penetration, but instead upon whether defendant's attorneys were within "the range of competence demanded of attorneys in criminal cases." Nunez-Valdez, supra, 200 N.J. at 139 (quoting DiFrisco, supra, 137 N.J. at 457). In other words, the dispositive issue is not whether there was an adequate basis for defendant's plea, but rather whether his attorney met the minimum requirements of "reasonable competence" set forth in Strickland in representing defendant during the plea process.

Based upon our careful review of the record, we conclude that defendant did not show that trial counsel was not deficient for allowing defendant to enter a guilty plea or in failing to assert a lack of factual basis for that plea. The plea agreement was reasonable, if not lenient. Considering the three first-degree charges against defendant, the damning circumstantial evidence that included the disarray of A.B.'s clothing on the morning after, and the statements defendant had made to the police, trial counsel's strategic decision to allow defendant to plead guilty to a single second-degree offense did not reflect performance that could be characterized as "deficient" under the Strickland standard. Furthermore, while defendant may have vacillated between going to trial or entering a guilty plea, ultimately defendant chose the latter approach. He has not provided any evidence suggesting that his plea was perjurious, see State v. Taccetta, 200 N.J. 183, 196-97 (2009), or anything other than knowing and voluntary. The statements of his trial attorney indicate that every precaution was taken to insure a knowing, voluntary plea.

In fact, pleading guilty to second-degree sexual assault in this case was a sound strategy. Defendant faced charges of first-degree kidnapping, N.J.S.A. 2C:13-1(b); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a); and attempted first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) and N.J.S.A. 2C:5-1. He could have been found guilty of first-degree sexual assault if the jury found that the defendant committed an act of sexual penetration where the victim was physically helpless or where the defendant should have known that the victim was physically helpless. N.J.S.A. 2C:14-2(a)(7). "'Physically helpless' means that condition in which a person is unconscious or physically unable to flee or is physically unable to communicate unwillingness to act[.]" N.J.S.A. 2C:14-1(g). Further, as noted above, "penetration" is defined as "vaginal intercourse, cunnilingus, fellatio . . . or insertion of the hand, finger or object into the anus or vagina . . . by the [defendant] . . . ." N.J.S.A. 2C:14-1(c).

In addition, defendant could have been found guilty of kidnapping had the jury found that he had "unlawfully remove[d] another from . . . a substantial distance from the vicinity where he is found" with the purpose to "facilitate commission of any crime . . . ." N.J.S.A. 2C:13-1(b)(1). A "substantial distance," in the context of an alleged kidnapping in furtherance of a sexual assault is any distance that isolates the victim and enhances the risk to the victim more than a trivial degree. State v. Masino, 94 N.J. 436, 447 (1983).

On the record before us, including defendant's admissions to police as set forth in the police report, defense counsel could reasonably have been concerned that a jury would find defendant guilty of first-degree sexual assault or attempted first-degree sexual assault and first-degree kidnapping so as to make defendant's guilty plea an attractive strategy. Defendant admitted to the police that he "attempted" to insert his finger into A.B.'s vagina while she was unconscious or asleep. He also said he pulled off A.B.'s pants and "put his mouth on her vagina" while A.B. demonstrated signs of intermittent consciousness and unconsciousness. Defendant also admitted that, at some point, he attempted to have vaginal intercourse with A.B. The jurors' credibility assessment of him and A.B. would have been critical to the determination of whether they believed he penetrated her or not.

Defendant admitted that he transported A.B. to another state while she was unconscious, and the jury might have inferred reasonably that the defendant's purpose in doing so was to facilitate a sexual assault by isolating her from her familiar environs. When considering this evidence, which could support a jury finding of guilt as to first-degree aggravated sexual assault and first-degree kidnapping, we find that defense counsel's decision to recommend that defendant plead guilty to a second-degree sexual assault charge to reduce the risk of multiple convictions was not deficient under the Strickland standard.

The record also reflects that defendant's trial counsel performed adequately in his attempts to make sure that defendant understood the charges against him and the consequences of his guilty plea. Significantly, an interpreter was present during the plea hearing and during at least two conferences with trial counsel. Defendant completed the plea form, which contained all the same information to which defendant testified at the plea hearing, with the help of an interpreter. Defendant's family members, who understood English well, were provided with a copy of discovery and were able to explain the charges to defendant in Greek, defendant's native tongue. Defendant was conversant, if not fluent, in English, but he was provided with an interpreter at every crucial step in the process.

Defendant made no contemporaneous claim of innocence during his plea testimony and, as a whole, his testimony indicated that he understood he was pleading guilty to a second-degree sexual offense and appreciated the punishment to which he would be subjected. Defendant indicated that he had time to discuss his plea with his attorney, was satisfied with his attorney's representation, and believed the plea was in his best interest. Overall, defendant has not presented any evidence that defense counsel failed to explain the consequences of a guilty plea, resulting in a plea that was anything other than voluntary. Though defendant stated he did not want to go to prison, he acknowledged that he understood he was pleading guilty to a second-degree crime and that the recommended sentence was seven years of which he would be required to serve eighty-five percent before he was eligible for parole. There is no evidence he did not understand the consequences of the plea.

Defendant also claims that trial counsel's representation was defective because counsel never procured a waiver of the affirmative defense of victim consent. We find this argument of insufficient merit to warrant discussion in this opinion, Rule 2:11-3(e)(2), but add only these brief comments. Consent is not a viable defense to sexual assault when the victim is unconscious at the time of the sexual encounter. It is unreasonable for anyone to conclude that an unconscious person could have consented to the act of sexual intimacy. "The definition of 'physical force' is satisfied under N.J.S.A. 2C:14-2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration." In re M.T.S., 129 N.J. 422, 448-49 (1992). "[I]t makes common sense that a person who is actually asleep is incapable of fleeing or communicating unwillingness to act." State v. Rush, 278 N.J. Super. 44, 47 (App. Div. 1994). Defendant stated that A.B. was sleeping when he touched and when he attempted to penetrate her vagina; a reasonable person could not conclude that she consented to the penetration while asleep or unconscious.

The record supports the view that trial counsel properly recognized and communicated to defendant that consent probably would not be a viable defense to sexual assault when the victim is unconscious. Trial counsel explained on the record that he "had lengthy, lengthy conversations with my client . . . explain[ing] in great detail . . . how any type of implied consent that may or may not have existed, should a jury even believe it, would have terminated [when A.B. was unconscious]."

Defendant claims that appellate counsel was ineffective for failing to raise on direct appeal that defendant's plea (1) did not explicitly waive his "affirmative defense" of consent and (2) contained no factual basis establishing penetration. On the one hand, defendant asserts that appellate counsel's failure to raise this point on direct appeal demonstrates counsel was ineffective and, on the other hand, that counsel's lack of success on these issues has rendered him unable to raise it presently, due to the procedural bar of Rule 3:22-4.

Courts apply the Strickland test to claims of ineffective assistance of appellate counsel in the same manner as the test is applied to trial counsel. State v. Morrison, 215 N.J. Super. 540, 546 (App. Div. 1987), certif. denied, 107 N.J. 642. Thus, an appellate counsel's performance must be shown to have been both deficient and prejudicial to the outcome of defendant's case. Ibid. Defendant has not demonstrated either.

Finally, defendant argues that the cumulative effect of the errors alleged in this brief deprived him of a fair trial. "Where . . . legal errors are of such magnitude as to prejudice the defendant's rights, or in their aggregate have rendered the trial unfair, our fundamental constitutional concepts dictate the granting of a new trial before an impartial jury." State v. Orecchio, 16 N.J. 125, 129 (1954). In judging the impact of cumulative errors, a court is required to consider "'in the context of the entire case, whether the error was clearly capable of affecting the verdict or the sentence.'" State v. Bey, 129 N.J. 557, 624-25 (1992), cert. denied, 530 U.S. 1245, 120 S. Ct. 2693, 147 L. Ed. 2d 964 (2000) (quoting State v. Bey, 112 N.J. 45, 94-95 (1988)). Because we have not discerned a single prejudicial error on the part of defendant's trial or appellate counsel, we reject this argument.

Affirmed.

 

As returned by the grand jury, count five of the indictment against defendant alleged that defendant committed an act of sexual penetration upon A.B. "specifically by putting his mouth on A.B.'s vagina." However, at the start of the plea hearing on April 21, 2003, the assistant prosecutor indicated to the court that the words from "specifically" through the term "vagina" could be deleted because "it is not necessary to even have that in the indictment, because the indictment does alleged [sic] sexual penetration." The assistant prosecutor expressed his understanding "that [defendant] is going to admit to a form of sexual penetration, but not this particular one." Accordingly, the indictment was amended without objection.

(continued)

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A-5379-06T4

January 26, 2010