STATE OF NEW JERSEY v. GLENN MOREL

NOT FOR PUBLICATION WITHOUT THE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.

GLENN MOREL,

Defendant-Appellant.

________________________________

October 23, 2014

Submitted July 8, 2014 Decided

Before Judges Espinosa and Kennedy.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-01-0058.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from an order of the Law Division denying his petition for post-conviction relief. We affirm essentially for the reasons stated by Judge Raymond A. Reddin in his thorough opinion from the bench on January 16, 2013.

A Passaic County Grand Jury returned an indictment charging defendant with the following crimes alleged to have occurred on September 9, 2007: second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count one); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count two); and third-degree criminal sexual restraint, N.J.S.A. 2C:13-2(b) (count three). Defendant was represented by an experienced attorney from the Office of the Public Defender.

At a status conference in open court in May 2008, which was attended by defendant, his counsel said defendant "expects the victim is going to want to withdraw the charges," but conceded he had nothing from the victim indicating that was true. The prosecutor responded that if the victim was going to recant, the State nonetheless had her statement, and that defendant had given police an "incriminatory statement," as well, thereby enabling the State to proceed with the prosecution of defendant even if the victim recanted.

After listening to this, defendant told the court he would plead guilty if his sentence were "three years, 85 percent." Defendant acknowledged that such a plea offer would be subject to Megan's Law and that he would be subjected to "civil commitment if [it was later determined defendant was] a sexually violent predator." Defendant also acknowledged he was willing to give as part of the plea a factual basis that he had "sexual penetration with [the victim] against her will." The prosecutor said he would speak with the victim to ascertain if she would approve the proposed disposition.

On June 9, 2008, defendant signed all the appropriate plea forms indicating that he would plead to count one of the indictment in return for a sentence in the third-degree range of three years in prison, subject to both the No Early Release Act, N.J.S.A. 2C:43-7.2(a), and Megan's Law, N.J.S.A. 2C:7-1 to -23, with the possibility of being civilly committed as a sexually violent predator following the completion of his sentence. Defendant acknowledged under oath the terms of the plea bargain and his understanding of the rights he was waiving. He also stated that he had enough time to speak with counsel and was satisfied with his services, and was not forced to enter the plea and had no questions for either the court or counsel.

Defendant thereafter stated he had taken the victim out for a date, and subsequently forced her to perform fellatio upon him by "grabbing her head and bringing" her down. He knew the victim did not want to do that but he "made her do it anyway." The judge then accepted the plea and the matter was scheduled for sentencing.

On September 29, 2008, defendant appeared for sentencing and the judge noted that in the pre-sentence investigation report, defendant, although he "maintained his guilt," stated "he was under the influence at the time" of the crime. Defendant told the judge that he made that statement because he wanted to be "sincere and real" about the incident, and that, despite taking some "ecstasy" prior to the crime, he knew what he was doing at the time was "wrong." After acknowledging once again that if he were found to be a sexually violent predator, he could be "committed civilly," defendant told the court he was remorseful and that "I know I'm guilty and that's why I'm taking this plea." Defendant thereafter was sentenced in accordance with the plea bargain.

In 2010, defendant, through the Office of the Public Defender, filed an appeal, but withdrew the appeal in 2011. Defendant filed his first petition for PCR in March 2012. He provided a certification in which he said his counsel was ineffective for not moving to "challenge the forced confession" he gave to police after long and "repeated questioning" prior to which he was not "properly advised" of his right to remain silent or to have counsel present; for not moving to dismiss the indictment because the victim was not available as a witness; for "forcing" him to plead guilty, even though he was "under the influence of ecstasy" at the time of the incident; and for failing to advise him of the possibility of civil commitment as a sexually violent predator. Defendant proffered nothing other than his certification in support of the petition.

Judge Reddin denied defendant's petition without an evidentiary hearing and explained, in pertinent part

[At the May 2011 status conference], [the prosecutor] told [defendant] "you are subject to civil commitment. If they decide you're a sexually violent predator they can hold you at a facility as long as they feel like it." And [the prosecutor] said, "are you going to admit and give a factual basis that you had sexual penetration with the victim against her will?" The defendant said, "yeah . . . ."

. . .

And question number seven [on the plea form] speaks of civil commitment. And it tells every defendant, including Mr. Morel, that if he is convicted and if he pleads guilty he may be civilly committed, if another facility -- he may be civilly committed to a facility if the court finds after a hearing that is he is in need of involuntary civil commitment and it explains all of that to him.

About three inches below that there's the date, [defendant's] signature, the [defense counsel's] signature. It's right on the plea form.

At the time of the plea, the defendant was placed under oath and Judge Marmo said, basically, look, before we begin any of this, you got to tell me sort of two things, one, you did the crime; and two, you want the plea bargain and the defendant said, yeah, that's what I want.

The judge, on page nine, of the transcript again told him, "you could be civilly committed if you were found to be a sexually violent predator, do you understand that? Answer: Yes, your Honor."

So, now it's been told to him by the prosecutor, the judge at the time the plea and it's in the plea form . . . .

Now, he didn't ask any questions about civil commitment or anything else he didn't understand, which tells me he understood all those circumstances . . . .

That leads me to believe that he understood everything else . . . .

Now [defendant] didn't pursue a Miranda1 but the defendant was asked this question, on page 18, "by pleading guilt, you are giving up all of your rights, all of your constitutional rights, do you understand that?" He wasn't told that he would have the right to a Miranda hearing, although he did have the right to one, but as [the prosecutor] said an attorney is not required to make frivolous applications or applications that aren't going anywhere.

From what I read here, the defendant was Mirandized on video. He signed the form. He gave a confession and he corroborated it and reaffirmed it on the day of sentence. He kept saying about five times. I did it. I was wrong. I did it. I was wrong. I just want to move on. I learned a lesson. Things of that sort. I'm sure that if there was any basis to suppress the statement an experienced lawyer like [defense counsel] would have done that.

And as part of the factual basis, the defendant indicated where it happened. He indicated that he made the lady engage in oral sex and he said he grabbed her head and brought her head in. So, this was not one of these situations where the defendant only says yes, yes, yes.

Now on sentence day, again, [defendant] reiterated, only now the thing about the ecstasy came up and [defense counsel] and the judge both clarified it. [Defense counsel] said, "did you know what you were doing at the time you committed the offense?" The defendant said "yes." The court went on to say, "in effect, I cannot hear the case any further. I can't sentence you if you were under the influence of ecstasy. I can't accept your plea." And he went on to clarify it with the defendant.

And the defendant said, "I realized what I did." And the judge said, "you did realize it?" And he said, "not 100 percent but I realized something was wrong." And the court clarified it further, "so you are acknowledging that at the time you knew it was wrong to do that?" And the defendant said "yes."

The judge, on page 12 yet again, brought up the subject of civil commitment and mentioned the standard about the sexually violent predator. He asked the defendant, "do you understand that?" And [defendant's] answer was "yes." [The judge] almost reiterated the entire plea questioning at the time of sentence.

This is about as solid a record on a plea as can be undertaken. It's verbally under oath. It's in writing, signed by the defendant, everything was explained to him . . . . And now [defendant's] complaining about it and he is saying he wants to retract his plea.

. . .

One, has the defendant asserted a colorable claim of innocence? Well, the answer to that is no, if anything, he's repeatedly admitted that he did it.

Two, what is the -- consider the nature and strength of the defendant's reasons for the withdrawal. There is nothing that's legitimate or bona fide as a reason to withdraw the plea.

Three, was there the existence of a plea bargain? Well, yeah, and he got a great benefit as part of that plea bargain.

And four, would the withdrawal result in unfair prejudice to the State? And the answer is, obviously, yes.

This is a victim who now five years later has moved on . . . .

And the last point is this notion of the victim wasn't available. I don't know where that comes from. There's nothing to suggest that that's true. The converse is true, the victim was available because the prosecutor consulted with her about the plea.

So, for all those reasons, I find no merit here . . . .

On appeal, defendant raises the following arguments

POINT I

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ2 TEST.

POINT II

THE COURT'S ORDER DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT III

THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO ALLOW DEFENDANT TO RETRACT HIS GUILTY PLEA BECAUSE THE PCR COURT MISAPPLIED THE STATE V. SLATER3 FACTORS.

We find no merit to these contentions, Rule 2:11-(e)(2), and therefore affirm substantially for the reasons stated by Judge Reddin in his thorough decision of January 16, 2013. Suffice it to say, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693; Fritz, supra, 105 N.J. at 58. We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

With respect to defendant's bald assertion of being under the influence of ecstasy while committing the crime, we observed in State v. Bauman, 298 N.J. Super. 176, 194 (App. Div. 1997) that a jury charge on voluntary intoxication is required only if "there exists a rational basis for the conclusion that defendant's faculties were so prostrated that he or she was incapable of forming the requisite intent" (internal citation omitted)); see also State v. Johnson, 309 N.J. Super. 237, 266 (App. Div.) (finding "[v]oluntary intoxication is not a valid defense unless it negates an element of the offense"), certif. denied, 156 N.J. 387 (1998). It is clear that, on the record before us, defendant's bald claim that he had taken some ecstasy prior to assaulting the victim fails to raise a factual issue warranting an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 169-70 (App. Div.), certif. denied, 162 N.J. 199 (1999); see generally State v. Mauricio, 117 N.J. 402, 418-19 (1990).

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).

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