STATE OF NEW JERSEY v. R.I.H

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1089-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.I.H.,

Defendant-Appellant.

______________________________________

March 20, 2013

Submitted March 13, 2013 - Decided

Before Judges Nugent and Happas.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-12-2003.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Snyder, Designated Counsel, on the brief).

Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel).

PER CURIAM

Defendant R.I.H. appeals from the order denying without an evidentiary hearing his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. Defendant argues the trial court erred by denying his application for an evidentiary hearing and the opportunity to prove his trial counsel misled him about his guilty plea. Having considered defendant's arguments in light of the record, we affirm.

When defendant was seventeen years old, the police arrested him and charged him with sodomizing a ten-year old boy. During the ensuing juvenile proceedings, the court waived jurisdiction and referred the action to the Law Division. A grand jury subsequently charged defendant in an indictment with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count three).

Defendant negotiated a plea to the charges. He agreed to plead to the first count of the indictment. In exchange, the State agreed to dismiss the remaining two counts; recommend a custodial term not to exceed ten years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; recommend parole supervision for life, N.J.S.A. 2C:43-6.4; and recommend defendant comply with the registration and notification requirements of Megan's Law, N.J.S.A. 2C:7-1 to -11 and 19.

During the plea hearing, defendant signed a plea form which included a section that stated: "Specify any sentence the prosecutor has agreed to recommend[.]" Beneath this printed statement appeared the following: "10 yrs - NERA - Megan's Law; Parole Supervision for Life[.]" Judge Wendel E. Daniels presided over the plea hearing and questioned defendant to determine whether he was knowingly and voluntarily accepting the State's plea offer. Among other things, Judge Daniels asked about the plea form:

THE COURT: Let me -- I'm going to show you page [four] of your plea form and ask you, is that your signature?

THE DEFENDANT: Yes, Sir.

THE COURT: And did you sign that voluntarily?

THE DEFENDANT: Yes.

THE COURT: Did you read this plea form before you signed it?

THE DEFENDANT: Yes.

THE COURT: And did you understand what you read, sir?

THE DEFENDANT: Yes.

THE COURT: Are the statements contained in here both truthful and accurate?

THE DEFENDANT: Yes.

Judge Daniels also confirmed defendant's understanding that the State was recommending a ten-year sentence with an eighty-five percent period of parole ineligibility: "Regarding [p]aragraph [thirteen] of your plea form, it's going to be the [S]tate's recommendation that you serve ten years, and you have to serve [eighty-five] percent of that before you will be eligible for parole. Do you understand that?" Defendant replied, "[y]es." Finally, Judge Daniels explained how he would approach sentencing:

THE COURT: No one has promised you what this court would actually sentence you to. Is that true?

THE DEFENDANT: Yes.

THE COURT: Because I have to see your presentence report. If I can go along with this plea agreement, I'll do that. But if I believe more time is needed than what's reflected here, I will allow you to take back your plea, and anything you say today will not be held against you.

Do you understand that?

THE DEFENDANT: Yes.

THE COURT: All right. Has anyone forced, pressured or coerced you in any way to enter this plea agreement?

THE DEFENDANT: No.

THE COURT: You're doing it freely and voluntarily?

THE DEFENDANT: Yes.

Judge Daniels subsequently sentenced defendant, in accordance with the plea agreement, to a custodial sentence of ten years to be served at the Adult Diagnostic and Treatment Center, subject to NERA. Judge Daniels also sentenced defendant to parole supervision for life and imposed appropriate assessments and penalties.

Defendant did not file a direct appeal. One month after his sentencing, defendant filed a PCR petition in which he alleged, among other things, that his attorney "spoke to [him] before sentencing saying [he] was going to have [his] charges dropped down to a [second] degree and [he] was going to receive a [seven] with [eighty-five percent] which did not happen and [he] was then sentenced to a [ten] with [eighty-five percent]."

The court appointed counsel to assist defendant, and counsel filed a brief and a certification from defendant's aunt. Defendant's aunt averred that she was actively involved in defendant's case and spoke with defense counsel before defendant entered his guilty plea. According to the aunt's certification, it was her understanding "from our conversations with [defense counsel], that upon pleading guilty, [defendant] would be sentenced as a second-degree offender and would be facing an approximate seven-year term of incarceration with an eighty-five percent minimum." Defendant's aunt also averred that counsel emphasized "[defendant] did not have any prior convictions and that this would factor into his receiving a seven-year term."

Following oral argument, the court1 denied defendant's PCR petition. The court noted that when defendant pled guilty, the plea form made no mention of a maximum seven-year custodial term, and defendant never referred to a seven-year term when Judge Daniels questioned him about the plea agreement. The court also noted that, at sentencing, defense counsel "argued for the seven years, suggesting that [defendant] should be sentenced as a second-degree offender in light of certain mitigating factors[,]" but Judge Daniels accepted the State's argument that certain aggravating factors outweighed the mitigating factors. The court surmised defense counsel told defendant's aunt that she would argue for a seven-year term. It made no sense to the court that counsel, an experienced defense attorney, would represent to defendant that he would receive a seven-year sentence when she had no authority to make that representation.

The court also rejected defendant's argument that had he known his sentence would be ten years, he would have rejected the plea and proceeded to trial. Reasoning that defendant was facing a twenty-year prison term on count one of the indictment, as well as two other charges, and that the evidence against defendant, including his confession, was overwhelming, the court found defendant had not established a prima facie case that he would have withdrawn his plea.

After rejecting defendant's PCR petition, the court, on its own, decided to treat the PCR petition as one to withdraw a guilty plea and proceed to trial. Without asking for argument from counsel, the court engaged in a Slater2 analysis and determined defendant was not entitled to withdraw his plea. After the court entered a confirming order, defendant appealed.

Defendant presents the following arguments for our consideration:

POINT I.

THE COURT COMMITTED ERROR BY DENYING THE APPELLANT'S PETITION WITHOUT GRANTING AN EVIDENTIARY HEARING ON HIS CLAIM THAT COUNSEL WAS INEFFECTIVE BY MISLEADING HIM AS TO THE LENGTH OF THE SENTENCE THAT WAS RECOMMENDED TO BE IMPOSED IN EXCHANGE FOR HIS PLEA OF GUILTY TO THE CHARGE OF AGGRAVATED SEXUAL ASSAULT.

POINT II.

THE TRIAL COURT COMMITTED ERROR BY DENYING THE PETITION ON A STATE V. SLATER ISSUE NOT RAISED OR RELIED UPON BY THE APPELLANT IN HIS PCR PETITION WITHOUT PERMITTING THE APPELLANT TO ADDRESS THE ISSUE AND THIS COURT SHOULD REMAND THE MATTER BACK TO THE TRIAL COURT TO PERMIT THE APPELLANT TO RESPOND TO THE ISSUE.

To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient"; that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987).

To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must establish "'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.'" DiFrisco, supra, 137 N.J. at 457 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)) (alteration in original).

Whether a PCR hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion. R. 3:22-10; see State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-10(b) states in pertinent part:

A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of PCR, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.

Additionally, to establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland-Fritz test. See Preciose, supra, 129 N.J. at 463.

Defendant has not made a prima facie showing that his counsel was ineffective. First, he has not demonstrated that defense counsel's performance was deficient. Defendant has submitted no certification explaining why he signed the plea agreement, why he told Judge Daniels that he understood the plea agreement, why he acknowledged to Judge Daniels that the State would recommend a ten-year prison term, and why he mentioned nothing to Judge Daniels about his attorney saying the State would recommend seven years. Defendant made no attempt in his PCR petition to explain why he would tell Judge Daniels that he understood the State would recommend a ten-year custodial term, and that no one made any other representations about the sentence, if his attorney had indeed made such contrary representations. In the absence of such explanation, and in view of defendant's representations on the plea form and to Judge Daniels, the PCR court did not err when it determined that defendant had not established a prima facie case that his counsel's performance was deficient.

Defendant also failed to demonstrate a reasonable probability that but for his counsel's advice, he would not have pled guilty and would have insisted on going to trial. Defendant has not certified that he would have withdrawn his guilty plea had he known he would be sentenced to a ten-year custodial term. It is questionable how he could make such an assertion in light of the plea colloquy. The fact remains, however, that he did not request to withdraw his guilty plea when he filed his PCR petition.

During oral argument on the PCR petition, defense counsel referred to trial counsel's alleged statement about a seven-year sentence, and argued that trial counsel's representation about sentencing "would have affected which way [defendant] was going to go on the case; maybe [he'd] have gone to trial, taken the plea, perhaps negotiated more." When the court then asked counsel if defendant was "seriously arguing that he would have gone to trial on this case[,]" counsel responded: "Judge, I would need to look at his original petition." In short, defendant never offered any competent, credible evidence that he would have rejected the plea and proceeded to trial absent the alleged representation from his trial attorney that he would be sentenced to a seven-year prison term.

Even assuming, as the court did at the PCR oral argument, that defendant was asserting that he would have rejected the State's plea offer, the court properly discredited this assertion. As the court pointed out, defendant was facing a twenty-year prison term and two other charges for sodomizing a ten-year old child. The evidence of defendant's guilt was virtually irrefutable. Under those circumstances, defendant could not plausibly maintain, and certainly could not establish a prima facie case that he would have withdrawn his guilty plea.

In view of our determination that defendant did not establish a prima facie case of ineffective assistance of counsel under Strickland, we need not address his argument that the court improperly decided that he was not entitled to withdraw his guilty plea -- an issue that he never raised. Although the record does not disclose why the court decided to treat the PCR petition as an application by defendant to withdraw his guilty plea; or why the court, having decided to undertake that course of action, did not permit defendant to make an argument about it; the issue appears to be moot. The court's decision to treat defendant's PCR petition as an application to withdraw his guilty plea did not affect the court's determination that defendant had not established a prima facie case of ineffective assistance of counsel.

Affirmed.

1 The judge who decided defendant's PCR petition was not Judge Daniels.

2 State v. Slater, 198 N.J. 145 (2009).