STATE OF NEW JERSEY v. NELSON GUERRERO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0968-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NELSON GUERRERO,

Defendant-Appellant.

__________________________________

T

March 5, 2013

elephonically Argued December 10, 2012 - Decided

 

Before Judges Messano and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Accusation No. 09-08-2761.

 

Michael Pastacaldi, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pastacaldi, on the brief).

 

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

PER CURIAM

Defendant appeals from the trial court's order, entered January 14, 2011, without oral argument or an evidentiary hearing, denying his petition for post-conviction relief (PCR). We reverse and remand.

I.

With the assistance of a court-approved interpreter, defendant, a legal resident from the Dominican Republic, pleaded guilty on August 12, 2009 to a single-count accusation charging second-degree sexual assault, N.J.S.A. 2C:14-2b. The accusation alleged defendant placed his mouth on the breasts of a ten-year-old girl on February 27, 2009. In return for his plea, the State agreed to recommend a sentence of five years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, requiring him to serve eighty-five percent of the sentence before parole eligibility. The plea agreement also called for defendant to waive his right to appeal.

At the plea hearing, defense counsel stated that earlier that day, he reviewed the English-language plea forms with defendant while assisted by an interpreter, whom counsel later identified as a Spanish-speaking colleague. Defendant affirmed, in response to the judge's questioning, that his attorney reviewed the plea forms, recorded his answers to the questions, and his answers were accurate.1

The court also advised defendant that, in addition to NERA parole restrictions, he would suffer additional consequences as a result of his sexual offense. The judge stated, "On top of that, you'd be subject to parole supervision for life [(PSL)], Megan's Law classification and notification requirements. You'd have to be evaluated by what's called the Adult Diagnostic & Treatment Center to determine where you would actually spend your time in prison."

The court did not advise defendant that after he completed his sentence, he could be civilly committed. Among defendant's English-language plea forms was the form entitled, "Additional Questions for Certain Sexual Offenses." In his responses, defendant acknowledged he would be subject to Megan's Law, and PSL, which are described in detail. However, defendant did not answer question number seven regarding the possibility of post-sentence civil commitment.2 Neither "yes" nor "no" were circled, but the words "sexual assault" in the question were circled.3

Defendant provided a factual basis for his plea, agreeing, in response to leading questions, that he placed his mouth on the breasts of a ten-year-old girl, and did so for his own sexual gratification. Defendant acknowledged, in response to the court's questioning, that he would be deported as a result of his conviction.

Defendant came before the court for sentencing on October 15, 2009. Defendant had apparently written to the court in advance of the sentencing, requesting to withdraw his plea. Although the letter is not part of the record, the court described its contents:

The tenor of it is that we all know [defense counsel] threatened him to accept the deal. He claims he didn't know the exact nature of the charges nor the charges on which the deal had been offered. "I never received a copy of the discovery in English or Spanish." That doesn't necessarily mean he doesn't know what was going on. That's not unusual. That he paid his lawyer only to get a deal and [defense counsel] hadn't even provided him with an adequate interpreter who could fully explain what was going on.

 

Before hearing from defendant or his attorney, the trial judge recalled that he had taken the plea, and reviewed the substance of the plea hearing and concluded defendant knowingly, freely and voluntarily entered his plea. The court did not address defendant's claim that the interpreter's services were inadequate. It is also unclear whether defendant's complaint pertained to the in-court, certified interpreter, or the Spanish-speaking colleague who assisted in attorney-client meetings. The court also stated that the letter did not appear to present grounds to withdraw a plea under State v. Slater, 198 N.J. 145, 157-58 (2009).

The court then asked defense counsel, whom defendant had reportedly criticized in his letter, to respond. Defense counsel then declined to support his client's request to withdraw his plea. Counsel contradicted his client's claim of lack of understanding, and referred to the evidence of guilt in the pre-plea discovery, much of which was then included in the presentence report (PSR):

[DEFENSE COUNSEL]: I can represent the following to the Court:

 

Preliminarily, I reviewed with the assistance of the interpreter the Presentence Report and it appears that it is substantially accurate as to its contents.

 

Judge, second, in respect to the letter, which I received a copy of today, Mr. Guerrero did give me some indication that because he is not the individual who drafted it that he was not completely aware as to the content of the letter other than his uneasiness at the time of the plea, he indicates to me, but in respect to the other parts he was not aware that it was in there.

 

That's I say that on his behalf.

 

Furthermore, Judge, I think, just for the record to be absolutely clear, this matter was resolved pre-indictment after I personally received from the State, specifically Prosecutor [], pertinent discovery and also visiting Mr. Guerrero no less than twice in the jail with a female lawyer who happens to be Spanish. Her name, Judge, is [], who happens to be the sister of the Judge here in Municipal Court in Camden. She assisted me every time I spoke with him.

 

We had discovery. We knew what was coming. Ironically, all of what we had is now in the Presentence Report. I think we may have even had more.

 

I believe this may be just I don't want to belittle his feelings, but this may be just jitters while sitting in the jail because there's no doubt in my mind that at no time did he not know what was going on. Because of the seriousness of this matter we moved appropriately and, I believe, to his benefit.

 

The court then gave defendant an opportunity to speak. He stated: "They were telling me all of that, but at that moment I wasn't in the appropriate condition to understand up until right now. I still don't understand everything, what the accusations are."

The court then denied defendant's request to withdraw his plea. The court noted that defendant denied the offense in the interview described in the report of the Adult Diagnostic and Treatment Center (Avenel), N.J.S.A. 2C:47-1, which is not included in the record. Defendant alleged he was like a member of the victim's family, and had engaged in playful behavior with her, but did not kiss her, lick or touch her intimate parts. The court found defendant incredible.

Again, in my view, when you're looking at everything in its totality, in light of the fact he was under oath, he told me what he did at the time and I made the findings, as I said, I don't find his statement before the Court today to have any credibility.

 

As a result of my determination of his credibility, as a result of what I perceive to be the Slater factors again, his moving papers, although I glean that denial or partial denial from the Avenel report, none of his moving papers nor did his statement before the Court ever deny his responsibility.

The court concluded there was no colorable claim of innocence "other than, like I said, from the report that I have from Avenel. In fact, it seems to be an additional conflict in the investigatory information and the Presentence Report."

Although the court did not describe that "investigatory information" in detail, we note that the PSR included statements by the child victim to her mother, a prosecutor's office investigator, and a pediatrician conducting an examination for the prosecutor's office. The victim alleged that defendant, on various occasions, while at her home to do house repairs, licked her ears, breasts, vagina and anus. Defendant also reportedly attempted to kiss the victim's nine-year-old cousin. The cousin's report to her mother prompted the victim's mother to question her child.

Prior to his plea, defendant professed his innocence to police and the victim's father. He reportedly "denied any and all contact with [the victim]" when confronted by the father, but conceded in a police interview that he had given the victim "a hug and a kiss." According to the prosecutor, defendant again denied kissing the victim in his Avenel evaluation.

After denying the application to withdraw the plea, the court sentenced defendant in accord with the plea agreement, noting the defendant had no prior criminal record, and the Avenel evaluation found he did not come within the purview of the New Jersey Sex Offender's Act.

Defendant did not file a direct appeal. He filed a pro se petition for PCR on May 21, 2010, and asserted a claim of ineffective assistance of counsel and that his motion to withdraw his plea should have been granted.

Appointed counsel filed a brief in support of defendant's petition. Counsel argued that PCR should be granted because trial counsel failed to support defendant's motion to withdraw, in particular, by failing to note that defendant's claim of innocence was supported by the State's lack of corroborating evidence. Counsel also stated, without a supporting certification from defendant, that "[d]efendant . . . asserts that he had no knowledge of the potential for civil commitment." Counsel did not expressly argue, nor did defendant certify, that had he known of the potential of civil commitment, he would not have entered his plea.

Without hearing oral argument or conducting an evidentiary hearing, and before the State filed any opposition to defendant's supplemental brief, the court denied the petition in a written decision on January 14, 2011. The court applied the well-settled two-prong test for determining whether defendant was entitled to PCR. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (defendant must establish (1) that his counsel's performance was deficient and he made errors so serious that counsel was not functioning as guaranteed by the Sixth Amendment and (2) that defendant was prejudiced such that there existed a reasonable probability that, but for counsel's unprofessional errors, the result would have been different); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland standard). Relying on State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), the court also held that petitioner was required to support factual allegations by affidavit or certification.

The court rejected the argument that trial counsel was ineffective by failing to inform defendant of the potential of civil commitment. The court held that defendant had failed to present evidence, through a certification or affidavit, that he was uninformed, and the lack of information was material to his decision to plea. The court noted that the plea form itself did not establish a failure to inform defendant of the risks of civil commitment.

The court also rejected the argument that counsel was ineffective for failing to argue in support of defendant's request to withdraw his guilty plea. Regarding defendant's pre-sentence letter to withdraw his plea, the court concluded, "The letter made several baseless claims regarding defendant's trial counsel." Without specifically addressing defense counsel's failure to advocate his client's position, the court essentially held that defendant was not prejudiced, as he could not satisfy the four-prong test under Slater to withdraw his plea.

[PCR] counsel's final argument was that trial counsel was ineffective for failing to make certain arguments regarding the withdrawal of the defendant's guilty plea. This argument fails to meet the prima facie case set forth in Strickland/Fritz.

 

. . . .

 

[PCR] counsel's ineffective assistance of counsel claim regarding the withdrawal of the defendant's guilty plea fails to meet the prima facie case for ineffective assistance of counsel. Given the circumstances, the [c]ourt took it upon itself to initiate an inquiry into the Slater factors, and determine whether those factors were met. As the record from the Guilty Plea reflects, the defendant pled guilty and, in doing so, answered affirmatively to the questions posed by [the court] regarding the incident, thereby asserting his guilt. At no point during the Guilty Plea did the defendant assert a claim of innocence; the defendant only seemed to wa[]ver regarding his plea during the sentencing hearing. This was noted by the Court on the record. The Court also discussed the remainder of the Slater factors, noting that the defendant did receive the benefit of the bargain due to the fact he received a five-year (5) sentence, as opposed to the possibility of a seven-year (7) sentence on the second-degree charge, and a fifteen-year (15) sentence on the first-degree charge. The record also reflects that, due to the plea agreement, the defendant['s] criminal exposure was reduced, and also considered the possibility any prejudice to the State and unfair advantage to the defendant. After considering the factors, the Court determined that withdrawal of the defendant's plea would not be allowed. Even if the defendant's trial counsel were to raise these issues before the Court, he would not have been successful. Thus, the defendant has failed to satisfy the prima facie case. Additionally, if defendant's PCR counsel aims to challenge the ruling, such an issue is not proper for a PCR, and should be addressed by way of appeal.

 

Defendant appeals from the court's denial of his petition and presents the following issues for our review:

POINT I

 

THE PCR COURT ERRED WHEN IT FAILED TO VACATE DEFENDANT'S PLEA ON PRINCIPLES OF FUNDAMENTAL FAIRNESS DUE TO HIS TRIAL ATTORNEY'S FAILURE TO PROPERLY INFORM HIM OF THE POTENTIAL OF CIVIL COMMITMENT ASSOCIATED WITH HIS PLEA.

 

POINT II

 

THE PCR COURT ERRED IN FAILING TO FIND INEFFECTIVE ASSISTANCE OF COUNSEL REGARDING COUNSEL'S REPRESENTATION DURING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA.

 

POINT III

 

THE PCR COURT ERRED WHEN IT RULED PRIOR TO ORAL ARGUMENT AND BEFORE RECEIVING THE STATE'S OPPOSITION BRIEF.

POINT IV

 

DEFENDANT SHOULD HAVE BEEN GRANTED AN EVIDENTIARY HEARING ON POST-CONVICTION RELIEF.

 

II.

 

A.

 

We review the PCR judge's legal conclusions de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Where the court does not hold an evidentiary hearing, we may exercise de novo review over the factual inferences the trial court has drawn from the documentary record. Id. at 421. The trial court's credibility determinations, to which we normally defer, are not implicated. See ibid.

While a petitioner is obliged to establish the right to relief by a preponderance of the credible evidence, State v. Preciose, 129 N.J.451, 459 (1992), the court must consider the petitioner's "contentions indulgently and view the facts asserted by him [or her] in the light most favorable to him [or her]." Cummings, supra, 321 N.J. Super.at 170. A hearing should be held if the PCR petition involves genuine issues of material fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J.72 (1999). On the other hand, a court need not hold a hearing if it "will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or . . . the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing[.]" State v. Marshall, 148 N.J.89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (citations omitted); see also Cummings, supra, 321 N.J. Super.at 170 ("[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel.").

To satisfy the prejudice prong in a challenge to a conviction arising from a guilty plea, a defendant must show "a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial." State v. Gaitan, 209 N.J.339, 351 (2012) (citation and quotation omitted). A "reasonable probability" must be "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.

B.

We agree with defendant's first argument that the trial court erred in denying defendant oral argument. We held in State v. Mayron, 344 N.J. Super. 382, 387 (App. Div. 2001) there should be a "significant presumption in favor of oral argument" on a petition for PCR. The Supreme Court recently amplified this principle in State v. Parker, 212 N.J. 269 (2012). The Court recognized that a trial court retains a "residuum of discretion" to deny oral argument, in light of such factors as the "'apparent merits and complexity of the issues,'" whether argument would "'add to the written positions,'" and whether oral argument furthers "'the goals and purposes of the post-conviction procedure.'" Id. at 282 (citation and quotation omitted). Nonetheless, the Court stressed that trial courts should approach the issue "with the view that oral argument should be granted." Ibid. If the trial court does deny oral argument, it must provide a statement of reasons "tailored to the particular application, stating why the judge considers oral argument unnecessary." Ibid.

We recognize the trial court here did not have the benefit of the Court's instructions in Parker, supra. The court provided no statement of reasons why oral argument was unnecessary. Consistent with Parker, supra, and Mayron, supra, we conclude the court mistakenly exercised its discretion in proceeding to decide the motion without oral argument. On this ground alone, we believe a remand is necessary.

 

 

C.

However, we discern a more fundamental deprivation of defendant's rights. Defendant was essentially denied representation on his motion to withdraw his plea. He has also presented a prima facie case of prejudice warranting an evidentiary hearing.

We addressed strikingly similar circumstances in State v. Barlow, 419 N.J. Super. 527 (App. Div. 2011). In that case, after entering a plea, the defendant, James Barlow, wrote to the court and defense counsel stating he wished to withdraw his plea. At a hearing on the defendant's application, defense counsel did not support her client's position. Instead, she presented to the court the results of her own investigation that undermined the defendant's claims of innocence. Id. at 531. She then instructed her client that he would have to file his own motion. The defendant argued on his own behalf, and the court rejected his application. Id. at 532.

We held that the defendant "was deprived of his constitutional right to counsel when his attorney declined to pursue a motion on his behalf to withdraw his guilty plea," and acted contrary to the dictates of R.P.C. 1.2(a), which requires a defense counsel to "abide by the client's decision on the plea to be entered[.]" Id. at 535. We also held "defendant was deprived of effective assistance of counsel as the result of counsel's undermining of defendant's assertions of innocence in connection with his application to withdraw his plea." Ibid.

We rejected the State's argument that even if the defendant's attorney had been ineffective, the defendant suffered no prejudice because his application to withdraw his plea lacked merit. Id. at 537. Relying on State v. Hayes, 205 N.J. 522, 540-41 (2011), we held the court placed undue emphasis on the plea colloquy and defendant's admissions of guilt. Id. at 537. We observed "the judge's determination was also undoubtedly colored by defense counsel's statements completely undercutting defendant's claims of innocence and was explicitly colored by defendant's statement in his letter to counsel regarding his potential willingness to accept a lower plea." Ibid. We remanded the matter for appointment of new counsel and consideration by a different judge. Id. at 538.

We reach the same conclusion here. Rather than advocate on behalf of defendant, defense counsel belittled his application as a result of "jitters." He also referred to the pre-trial discovery that countered his client's claim of innocence. In addition, he contradicted his client's claim that he lacked sufficient understanding of the crime charged.4

The trial court concluded that even if defense counsel had been ineffective, the result would not have been different. However, in reaching that conclusion, the court inappropriately made credibility determinations on the basis of a non-testimonial record. The court found, in initially rejecting defendant's application to withdraw his plea, that he was not credible, because his claim of innocence was at odds with his allocution. In finding there was no colorable claim of innocence, and therefore no prejudice caused by ineffective assistance, the court also gave insufficient weight to defendant's pre-plea denials of guilt.

In support of defendant's PCR petition, counsel also urged the court to consider the absence of any evidence to corroborate the victim's claims. We recognize defendant's denial took two inconsistent forms he denied touching the victim at all, and he claimed he did nothing more than kiss and hug. Still, the victim's cousin's report that defendant kissed her may tend to support defendant's claim that he only kissed and hugged the victim.

We emphasize we express no opinion on the merits of defendant's claim that he suffered prejudice as a result of counsel's failure to vigorously represent his interest in his effort to withdraw his plea. However, defendant should be afforded an evidentiary hearing at which he may present evidence to show why he would have been permitted to withdraw his plea under the more indulgent pre-sentence standards set forth in Rule 3:9-3(e), had he had the benefit of effective assistance of counsel.

D.

Finally, we briefly address defendant's argument that he was denied effective assistance of counsel as a result of trial counsel's alleged failure to inform him of the potential of civil commitment. We affirm, substantially for the reasons set forth by the trial court.

We recognize that the potential of civil commitment may be of such great consequence that the failure to disclose it to a defendant may justify allowing the defendant to withdraw his plea. State v. Bellamy, 178 N.J. 127 (2003). However, defendant presented no cognizable evidence to the court in the form of a certification or affidavit to support his argument he was unaware of the risk of civil commitment, and that his lack of information would have been material. SeeR.1:6-6 (stating that affidavits must be based on personal knowledge as to which affiant is competent to testify). Assertions in PCR counsel's brief do not suffice.

Defendant's argument that he was unaware of the risk of civil commitment also is undermined by the circling of the words "sexual assault" on the special plea form. That evidences some discussion of the subject, notwithstanding the failure to circle "yes." Also, the potential of civil commitment was, arguably, not material because civil commitment was unlikely. The initial Avenel report apparently concluded defendant was not in need of treatment there, and he was not sentenced to Avenel. Moreover, defendant faced certain deportation. Upon completion of his custodial sentence, it was likely he would be deported before civil commitment and treatment.

R

eversed and remanded for an evidentiary hearing before a different judge. We do not retain jurisdiction.

1 Trial courts should assure defense counsel use the Spanish-and-English plea forms issued by the Administrative Office of the Courts, rather than rely upon interpreters to translate orally English forms. Even if a court-approved interpreter translates a form word-for-word, understanding is diminished when a defendant cannot read, as well as hear, the terms of his plea. Here, we do not know if a verbatim translation was made, but we do know defense counsel utilized a Spanish-speaking attorney, not a court-approved interpreter, to assist him.

2 The full text of the question, entitled "Civil Commitment," reads:

Do you understand that if you are convicted of a sexually violent offense, such as aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping under 2C:13-1c(2)(b), criminal sexual contact, felony murder if the underlying crime is sexual assault, an attempt to commit any of these offenses, or any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the offense should be considered a sexually violent offense, you may upon completion of your term of incarceration, be civilly committed to another facility for up to life if the court finds, after a hearing, that you are in need of involuntary civil commitment?

3 In addition to the standard plea form, defendant also completed the NERA supplemental form; the form entitled "Additional Questions for Certain Sexual Offenses Committed On or After December 1, 1998," which addresses sentencing at Avenel and the consequences of not cooperating with sex offender treatment if ordered; and a form addressing immigration consequences of his plea.

4 We recognize that, at the plea hearing in Barlow, supra, the defendant maintained his innocence, before giving a factual basis of guilt, but defendant here did not assert his innocence at his plea hearing. The distinction, however, does not affect the obligation of an attorney to advocate for his client, if the client wishes to withdraw his plea. If an attorney cannot ethically present a client's plea withdrawal motion, then the attorney should seek to withdraw. Cf. Hayes, supra, 205 N.J. at 536.