STATE OF NEW JERSEY v. DOMINICK ANDERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2178-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOMINICK ANDERSON,

Defendant-Appellant.

__________________________________

November 19, 2012

Submitted November 7, 2012 - Decided

Before Judges Fisher and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 04-09-3703.

Joseph E. Krakora, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Dominick Anderson appeals the Law Division's May 21, 2010 order denying his petition for post-conviction relief (PCR). We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

In March 2003, Anderson was indicted and charged with one count of second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(1). He subsequently accepted a plea offer, under which he would plead guilty to an accusation charging him with one count of third-degree aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3(a), and receive a sentence of probation for three years. The earlier indictment was to be dismissed at sentencing.

On September 21, 2004, Anderson waived indictment on the charge of third-degree aggravated criminal sexual contact and entered a plea of guilty to the accusation. By way of a factual basis for the plea, Anderson admitted that he engaged in sexual intercourse with the victim while she was asleep and under the influence of medication. In November, Anderson filed a pro se motion to withdraw his guilty plea.

In February 2005, Anderson pled guilty to a separate indictment charging him with one count of possession of a controlled dangerous substance (heroin), contrary to N.J.S.A. 2C:35-10(a)(1), under a plea agreement that called for a three-year period of incarceration. The agreement also included a renegotiation of the earlier plea agreement involving the sexual offense, so that the recommended sentence would be a concurrent three-year term rather than probation.1 At the same time, Anderson withdrew his motion to withdraw his earlier plea. Anderson was sentenced in accordance with the plea agreements on March 18. The judgment of conviction was amended on June 6 to include community supervision for life.

Anderson filed a pro se petition for PCR in February 2007. That petition was withdrawn without prejudice in October. The petition was renewed in March 2010, and supplemented by a brief submitted by PCR counsel. Anderson's petition focused on his assertion that his trial attorney had misinformed him with respect to the Megan's Law2 ramifications of the sentence. He sought to have those provisions vacated.

Following oral argument on May 21, 2010, Judge Samuel D. Natal placed an oral decision on the record, explaining his reasons for denying relief. The judge carefully reviewed the plea forms signed by Anderson and the September 2004 plea colloquy, during which Anderson acknowledged that he understood the Megan's Law consequences, including community supervision for life with the possibility of termination after fifteen years. The judge also addressed the argument from the initial petition that Anderson had been denied procedural due process because he had not been indicted for the third-degree offense to which he pled guilty. The judge found that Anderson had voluntarily and knowingly waived his right to indictment and agreed to plead guilty to the accusation. An order dismissing the petition was entered the same day. This appeal followed.

II.

Anderson raises the following issues on appeal:

POINT ONE: THE COURT MISAPPLIED ITS DISCRETION BY DENYING THE DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM, BY THE U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.

POINT TWO: THE LOWER COURT ERRED IN FINDING PETITIONER'S CLAIMS WERE BARRED PROCEDURALLY FROM BEING RAISED IN THIS PETITION BECAUSE THEY WERE NOT RAISED ON DIRECT APPEAL.

"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992) (citation omitted). Under Rule 3:22-2(a), a criminal defendant is entitled to PCR relief if there was a "[s]ubstantial 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." "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459 (citations omitted). "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to such relief, New Jersey courts apply the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984) and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 58 (1987).

Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. 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.

In demonstrating that counsel's performance was deficient under the first prong of Strickland, a defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . .'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, ibid., in satisfying the second prong, a defendant must typically demonstrate "how specific errors of counsel undermined the reliability of the finding of guilt." Cronic, supra, 466 U.S. at 659 n.26, 104 S. Ct. at 2047, 80 L. Ed. 2d at 668; see Roe v. Flores-Ortega, 528 U.S. 470, 482, 120 S. Ct. 1029, 1037, 145 L. Ed. 2d 985, 998 (2000). There must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Having reviewed Anderson's arguments in light of the applicable law and the record before us, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). We affirm essentially for the reasons expressed by Judge Natal in his oral decision. We note only (1) that Anderson was not entitled to an evidentiary hearing because he did not present a prima facie case of ineffective assistance of counsel, R. 3:22-10(b), and (2) that, although the judge did mention that some of the issues might be considered procedurally barred, he addressed and decided each on the merits.

1 There was also a plea to a violation of probation not involved in this appeal.

2 N.J.S.A. 2C:7-1 to -19.