STATE OF NEW JERSEY v. R.D.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5556-11T1

 

 

 

 

 

STATE OF NEW JERSEY,

 

Plaintiff-Respondent,

 

v.

 

R.D.,

 

Defendant-Appellant.

_________________________________

February 7, 2014

 

Submitted January 28, 2014 - Decided

 

Before Judges Reisner and Alvarez.

 

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-01-2012.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

 

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

 

Defendant R.D. appeals from an April 30, 2012 order denying his petition for post-conviction relief (PCR).

On this appeal, defendant raises the following points of argument for our consideration:

POINT I

 

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 

POINT II

 

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.

 

POINT III

 

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF.

 

Finding no merit in those arguments, we affirm the denial of PCR.

In 2006, defendant was arrested and charged with molesting a number of children and pre-teen girls. He was indicted on ten counts of first-degree sexual assault, N.J.S.A. 2C:14-2a(1), nine counts of second-degree sexual assault, N.J.S.A. 2C:14-2b, and several related offenses. He faced multiple decades of imprisonment if convicted on all counts. Before trial, defense counsel filed a motion to preclude two of the State's expert medical witnesses from testifying to certain statements the victims made to the doctors. The trial judge ruled, among other things, that testimony about the victims' statements to the doctors, identifying defendant as the assailant, would not be permitted unless the State could establish at a N.J.R.E. 104 hearing that the statements were made for purposes of medical diagnosis.

Before the N.J.R.E. 104 hearing was held, defendant accepted a plea agreement pursuant to which he pled guilty to four counts of second-degree sexual assault on a child, N.J.S.A. 2C:14-2b, and one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. At the plea hearing on May 2, 2008, defendant's trial attorney recited on the record that he had spent "hours" discussing the plea agreement with his client, and had provided defendant with all of the discovery and had reviewed it with him. Counsel also recited that he reviewed the plea form with defendant. Defendant agreed, on the record, that because he had some difficulty with reading, defense counsel had read the plea form to him.1 He also agreed on the record, that his attorney had explained all the discovery to him and he had no difficulty understanding any of that material. After exhaustive explanations and questioning by the trial judge, defendant asserted that he understood all the terms of the plea agreement and no one had coerced him into pleading guilty.

As provided in the agreement, on August 21, 2008, he was sentenced to an aggregate term of ten years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to be served at the State Diagnostic and Treatment Center at Avenel.

On March 24, 2011, defendant filed a PCR petition, which his assigned attorney supplemented with a brief on March 1, 2012. Through his PCR attorney, defendant contended that he was "coerced" into entering a plea bargain because his trial attorney failed to provide him with the reports of the children's medical examinations. The brief asserted that had defendant known that "some" of the victims' statements were inconsistent with the findings in the medical reports, he would not have pled guilty. The petition was not supported by a certification. Defendant neither asserted his innocence nor explained why, in light of the number of witnesses against him, and his confession to the police, it would have been rational to reject the plea bargain and insist on going to trial.

In a nine-page written opinion, Judge Jeanne T. Covert found no merit in the PCR petition. She noted that the plea agreement was more lenient than the State's previous offer of thirty years subject to NERA. She also considered the extensive questioning by trial counsel and the judge at the plea hearing, establishing that defendant had been provided with all of the discovery and understood the agreement.

Judge Covert further found the record did not support defendant's claim that he did not know about the medical reports or their content, because he was present in court when his attorney argued a motion concerning those very documents. She also found that even if he did not know about those reports, there was no basis to believe they would have changed his mind about pleading guilty, especially in light of the overwhelming evidence against him. That evidence included a taped "consensual intercept," and defendant's confession. The judge concluded that defendant failed to present a prima facie case of ineffective assistance of counsel and, therefore, was not entitled to an evidentiary hearing on his PCR petition.

On this appeal, defendant once again asserts that his attorney failed to provide him with the medical reports, and contends that he would not have pled guilty had he known that the doctors found no physical evidence of injury to corroborate the victims' claims that he had molested them years earlier. However, he acknowledges that some of the victims claimed that they suffered dysuria after the molestation, and the doctors might have been permitted to testify that such symptoms were consistent with sexual assault. Defendant also asserts, for the first time on appeal, that his PCR counsel was ineffective in failing to more specifically point out the alleged inconsistencies between the medical reports and the victims' statements.

Those contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We note, however, that the State's appendix contains copies of the medical expert reports, which were part of trial counsel's original motion to the trial judge. Those reports clearly indicate the expert's view that the lack of current symptoms of injury were of no significance, in light of the many years that had passed since the alleged molestation occurred. Consequently, even if defendant had not seen the reports before pleading guilty, reading them would not have provided a rational basis for him to reject the plea offer and insist on going to trial. See State v. DiFrisco, 137 N.J. 434, 457 (1994).

We agree with Judge Covert that defendant did not present a prima facie case of ineffective assistance of counsel and was not entitled to an evidentiary hearing. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

Affirmed.

1 Defendant, however, stated to the judge that he had never been diagnosed with any mental disability.