STATE OF NEW JERSEY v. MICHAEL DELUCA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL DELUCA,

Defendant-Appellant.

December 23, 2013

Submitted December 17, 2013 Decided

Before Judges Alvarez and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-04-1143.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Michael Deluca appeals from an October 7, 2011 Law Division order denying his petition for post-conviction relief (PCR). We affirm.

Defendant was arrested and subsequently indicted in connection with a July 14, 2007 forcible sexual assault upon a teenage victim. On August 4, 2008, pursuant to a plea agreement, defendant pled guilty to one count of the indictment, charging him with second-degree sexual assault, N.J.S.A. 2C:14-2c(1). In exchange for defendant's guilty plea, the State agreed to dismiss the remaining twenty counts of the indictment, including one count of first-degree kidnapping, N.J.S.A. 2C:13-1b(1), and four counts of first-degree aggravated sexual assault, N.J.S.A. 14-2a(3). The State also agreed to recommend a sentence of seven years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, Megan's Law, N.J.S.A. 2C:7-1 to -23, and parole supervision for life (PSL), N.J.S.A. 2C:43-6.4.

Before the trial judge, defendant acknowledged his understanding of the plea agreement, including all the consequences of Megan's Law and PSL. As to the latter, defendant twice indicated to the judge that he understood that he would be under PSL. Defendant executed several plea forms, including the supplemental plea forms explaining the Megan's Law and PSL consequences of the plea. In response to the judge's questioning, defendant testified that he read the plea forms, reviewed them with his attorney before signing them, understood them, and had no questions about them. Importantly, defendant answered "YES" to questions on the supplemental plea form that asked whether he understood that he would be sentenced to PSL, and would thereby be "subject to provisions and conditions of parole, including . . . restrictions on where you can live, work, travel or persons you can contact[.]" Under questioning by his attorney, defendant admitted that, through coercion, he inserted his finger into the vagina of the victim, without her consent.

Prior to his sentencing on October 17, 2008, defendant sought to withdraw his guilty plea, stating that he "wasn't in full understanding of the consequences of the plea." Specifically, defendant contended that he "didn't know there was a life supervision. I didn't know that there was travel bans that I would be under, lifetime parole." The judge rejected defendant's argument, citing the plea forms that defendant had signed and his colloquy with the court when the plea was entered. Defendant was then sentenced consistent with the plea agreement to a seven-year prison term, subject to a mandatory period of parole ineligibility under NERA, Megan's Law, and PSL.

Defendant appealed and the matter was placed on a sentencing calendar pursuant to Rule 2:9-11. We affirmed the judgment of conviction. State v. Deluca, No. A-2926-08 (App. Div. February 9, 2010).

Defendant filed a pro se petition for PCR in April 2010, challenging the aggravating and mitigating factors found the sentencing court, and further asserting that there was "no physical evidence to back conviction, although plea was taken." Counsel was thereafter appointed and filed a supplemental brief, essentially arguing that defendant's due process rights were violated when his recorded statement was irretrievably lost by the State, and that trial counsel was ineffective in having failed to move to suppress defendant's statement.

Following oral argument, the court denied defendant's PCR petition.1 The court noted that when defendant pled guilty, he twice testified that he understood that he would be under PSL, and would be subject to by the requirements of Megan's Law. The judge further cited defendant's affirmative response to the PSL question on the plea form.

The court also rejected defendant's argument that counsel was ineffective in failing to file a motion to suppress defendant's statement. The court found no evidence of bad faith in connection with the loss of the physical recording. Moreover, the court reasoned that the other evidence against defendant was overwhelming. The judge then entered an order denying the PCR petition. This appeal followed.

On appeal, defendant presents the following arguments:

POINT ONE

THE COURT COMMITTED ERROR BY DENYING THE APPELLANT'S MOTION WITHOUT GRANTING AN EVIDENTIARY HEARING.

a. Trial counsel was ineffective for not filing a motion to suppress his oral unrecorded statement based upon the argument that the loss of the recording was a due process violation.

b. Trial counsel was ineffective for failing to advise the Appellant of the consequences of pleading guilty to sexual assault which included parole supervision for life, a travel ban, and other Megan[']s Law prohibitions.

Based on our review of the record and the applicable law, we conclude these arguments are clearly without merit, Rule 2:11-3(e)(2), and only require the following comments.

To establish a prima facie claim of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of success under the Strickland/Fritz2 two-prong test. Under the first prong, defendant "must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). Under the second prong, defendant must show "'there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Nu ez-Vald z, 200 N.J. 129, 138-39 (2009) (quoting State v. Preciose, 129 N.J. 451, 463-64 (1992)). In the context of a guilty plea, a defendant must demonstrate that he would not have pled guilty but for his counsel's defective representation. Id. at 139 (citing State v. DiFrisco, 137 N.J. 434, 457 (1994)).

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 not supplied any certifications or affidavits containing factual assertions supportive of his claims. He has submitted no competent evidence explaining (1) why he told the judge that he understood the plea agreement, and twice told the judge he understood that he would be under PSL, (2) why he testified that he understood the plea forms, that detailed the restrictions to which he would be subject, including travel, and (3) that he would have rejected the plea and insisted on going to trial, had he either known the parameters of PSL, or had his statement been suppressed. See DiFrisco, supra, 137 N.J. at 457; Cummings, supra, 321 N.J. Super. at 170.

Next, defendant's argument that he was not informed that he was subject to Megan's Law and PSL, including a travel ban, was previously rejected by the sentencing judge when defendant sought to withdraw his guilty plea on that basis. Defendant did not appeal that decision, and arguably this contention is now procedurally barred. R. 3:22-4. In any event, defendant testified at his plea hearing that he reviewed and understood the plea forms before signing them, his plea counsel reviewed the forms with him in detail and answered all his questions, and he understood that he was subject to Megan's Law, including PSL. The record amply demonstrates that defendant "underst[ood] the nature of the charge and the consequences of the plea." State v. Johnson, 182 N.J. 232, 236 (2005).

Finally, we reject defendant's contention that trial counsel was ineffective for not filing a motion to suppress his oral unrecorded statement. Based on the limited record before us, it appears that defendant's statement was recorded, as required by Rule 3:17. It also appears undisputed that because of a power outage that affected the recording equipment, the police were unable to retrieve defendant's recorded statement, which was permanently lost. PCR counsel conceded that the defense did not allege any bad faith misconduct by the State. Under these circumstances, it is highly unlikely that a motion to suppress defendant's statement would have been successful. Where a defendant asserts his or her attorney was ineffective by failing to file a motion, he or she must establish that the motion would have been successful. "It is not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007).

Further, the PCR court correctly concluded that even if defendant's statement had been suppressed, the other evidence of defendant's guilt was overwhelming. This evidence included the presence of defendant's DNA in saliva found on the victim's body and undergarments, and the discovery of defendant's hat in the wooded area where the sexual assault occurred. 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 had the statement been suppressed, or that the result at trial would have been different.

Contrary to defendant's argument, it appears that counsel was quite effective in negotiating a favorable plea agreement. Defendant had a prior criminal record, which included a kidnapping conviction, and faced twenty other charges in the indictment, five of which were first-degree crimes. As a result, there was no basis to hold an evidentiary hearing on his claims. Preciose, supra, 129 N.J. at 462-63.

1 The judge who decided defendant's PCR petition was not the judge who took the plea or imposed sentence.

2 The two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).