STATE OF NEW JERSEY v. DAVID HOHSFIELD

NOT FOR PUBLICATION WITHOUT THE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.

DAVID HOHSFIELD,

Defendant-Appellant.

____________________________________

December 19, 2014

Submitted October 28, 2014 Decided

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment

No. 01-05-0957.

Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant David Hohsfield appeals from the dismissal of his petition for post-conviction relief, contending that he established a prima facie case of ineffective assistance of plea counsel that required an evidentiary hearing. Because the judge properly found the evidence inadequate to sustain defendant's burden on the application, we affirm.

Following his conviction for sexual assault in 1998, defendant was sentenced to a term of seven years in prison, community supervision for life, N.J.S.A. 2C:43-6.4, and required to register as a sex offender in accordance with Megan's Law, N.J.S.A. 2C:7-1 to -11. A condition of defendant's supervision was that he not initiate contact with minors. State v. Hohsfield, No. A-5113-11 (App. Div.) (slip op. at 1), certif. denied, ___ N.J. ___ (Oct. 21, 2014).

Following his release from prison, defendant approached several different girls in 2001 and 2002 about modeling nude, one of them a number of times. Those encounters gave rise to several different charges. In 2002, pursuant to a plea agreement resolving all counts of one indictment and the charges leveled in an unrelated accusation, defendant pleaded guilty to two charges of violating community supervision for life, N.J.S.A. 2C:43-6.4, and stalking, N.J.S.A. 2C:12-10, both fourth-degree crimes. Defendant was sentenced to an aggregate term of three years in prison. He appealed his sentence, claiming that it was excessive. We heard the appeal on a sentencing calendar pursuant to R. 2:9-11, and affirmed. The Supreme Court denied certification. State v. Hohsfield, No.

A-6000-01 (App. Div. March 12, 2003), certif. denied, 177 N.J. 490 (2003).

Defendant filed a petition for post-conviction relief in 2009 based on ineffective assistance of counsel. Defendant claimed that his plea counsel failed to advise him of the elements of stalking and to elicit a proper factual basis for that crime as part of his plea, failed to advise him that he could receive consecutive sentences and to argue for concurrent sentences, failed to interview witnesses and investigate potential defenses and failed to file an appeal as requested. Defendant sought to withdraw his plea and go to trial.

Although the petition was filed well out of time without excusable neglect, the judge determined to consider each of defendant's claims on the merits given their constitutional implications. After hearing argument by assigned counsel, Judge Mullaney issued a comprehensive written opinion denying the petition on the basis that defendant had failed to establish a prima facie claim for relief. See State v. Preciose, 129 N.J. 451, 462-64 (1992).

The judge found that defendant's claim of an inadequate factual basis for his plea to stalking was not borne out by the plea transcript, and that defendant had failed to demonstrate that he was not advised of the elements of the crime. He rejected defendant's claim that he was not made aware of the potential for consecutive sentences as both the plea agreement and the plea colloquy reflected that the prosecutor intended to seek consecutive terms. Because the crimes to which defendant pled were committed almost one year apart and in different towns, the judge found counsel could not be deemed ineffective for failing to seek concurrent sentences. He rejected defendant's argument that counsel failed to conduct an adequate investigation because defendant failed to assert any facts that counsel could have discovered through a more diligent effort or witnesses who would have exonerated him. Defendant's claim that counsel failed to file an appeal, he deemed meritless because counsel filed an appeal on defendant's behalf that was rejected by this court. Analyzing defendant's request to withdraw his plea, Judge Mullaney found that not a single one of the Slater1 factors would support that relief.

As to defendant's claim that he should have been informed that his guilty plea could qualify him for civil commitment pursuant to the Sexually Violent Predators Act, N.J.S.A. 30:4-27.25, the judge noted that defendant did not plead to a crime qualifying as a sexually violent offense under the Act. Further, even had defendant pled guilty to a predicate offense, his plea and appeal predated the Supreme Court's holding in State v. Bellamy, 178 N.J. 127, 140 (2003), that a trial court should ensure that a defendant understands the possibility of lifetime commitment prior to accepting a plea to a predicate offense under the Act. As the Court accorded Bellamy only pipeline retroactivity, and defendant's direct appeal was exhausted several months before the opinion was issued, that decision could afford him no relief in any event.

On appeal, defendant contends that he was entitled to an evidentiary hearing on his claim of ineffective assistance of plea counsel for failing to advise him of potential civil commitment and to investigate and pursue possible defenses.

We reject these arguments and affirm the denial of defendant's petition substantially for the reasons set forth in Judge Mullaney's July 16, 2012 cogent and comprehensive written opinion.

Affirmed.

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