STATE OF NEW JERSEY v. K.A.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0570-06T40570-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

K.A.,

Defendant-Appellant.

 

Submitted December 12, 2007 - Decided -

Before Judges Cuff and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 96-09-0509.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack Gerber, Designated Counsel, on the brief).

Robert L. Taylor, Cape May County Prosecutor, attorney for respondent (J. Vincent Molitor, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant K.A. appeals from the order of July 27, 2005, denying his post-conviction relief (PCR) petition. Defendant entered a negotiated, unconditional plea agreement. Defendant had pled guilty to ten counts of second degree endangering the welfare of a child; ten counts of second degree conspiracy to endanger the welfare of a child; ten counts of first degree aggravated sexual assault; and ten counts of second degree conspiracy to commit aggravated sexual assault. The charges stem from at least ten incidents over a three-year period of defendant's sexual abuse of his daughter. Defendant is serving an aggregate thirty-year term of imprisonment with a fifteen year period of parole ineligibility.

Defendant did not take a direct appeal. Instead, he filed a pro se PCR petition contending his sentence was excessive. Judge Batten denied the petition. We summarily reversed and remanded for reconsideration after referral to the Office of the Public Defender for representation. Defendant then filed an amended PCR petition, which Judge Batten denied. This appeal followed.

On this appeal, defendant raises the following arguments:

POINT I

THE CONVICTIONS MUST BE VACATED FOR CONSTITUTIONAL DEFECTS IN THE INDICTMENT.

POINT II

THE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF TRIAL AND PCR COUNSEL FOR FAILURE TO CHALLENGE THE SUFFICIENCY OF THE INDICTMENT.

POINT III

THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

We reject these arguments and affirm.

Defendant first contends the indictment was defective because it did not state with sufficient particularity the time, place, and conduct upon which each count was based. This contention fails for four reasons. First, all "defenses and objections based on defects in . . . the indictment or accusation . . . must be raised by motion before trial." Failure to so present any such defense constitutes a waiver thereof, but the court for good cause shown may grant relief from the waiver. R. 3:10-2(c). The defense can be raised after trial only if: (1) "the indictment or accusation fails to charge an offense" or (2) "the charge is based on a statute or regulation promulgated pursuant to" an invalid statute or part thereof. R. 3:10-2(d). Defendant raises the defective indictment argument for the first time, he has failed to show good cause, and none of the exceptions in Rule 3:10-2(d) apply.

Second, an indictment must not "substantially mislead[] or misinform[]" the defendant. State v. Wein, 80 N.J. 491, 497 (1979). It "must charge the defendant with the commission of a crime in reasonably understandable language setting forth all . . . critical facts and . . . essential elements" of the alleged offenses so as to enable defendant to prepare a defense. Ibid. Its "language . . . must be sufficiently detailed to avoid the risk of double jeopardy, successive prosecutions for the same transgression." Ibid. Also, "[w]hile it is well established that an indictment must contain a written statement of essential facts which constitute the offense, State v. Browne, 86 N.J. Super. 217, 232 (App. Div. 1965), a young victim will not have to be as exacting when specifying dates of abuse." State v. C.H., 264 N.J. Super. 112, 125 (App. Div.), certif. denied, 134 N.J. 479 (1993). The indictment here met these requirements and thus was not defective.

Third, defendant was charged with four separate crimes for each of the alleged ten incidents. Each of the crimes charged "'requires proof of an additional fact which the other does not.'" State v. Truglia, 97 N.J. 513, 519 (1984) (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932)). N.J.S.A. 2C:24-4a requires defendant to have a legal duty to care for a child, but N.J.S.A. 2C:5-2 and N.J.S.A. 2C:14-2a do not; N.J.S.A. 2C:5-2 requires an agreement with another person, but N.J.S.A. 2C:24-4a and N.J.S.A. 2C:14-2a do not; and N.J.S.A. 2C:14-2a requires "sexual penetration," but N.J.S.A. 2C:24-4a and N.J.S.A. 2C:5-2 do not. Thus there was no double jeopardy violation.

Finally, "'[g]enerally, a defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea.'" State v. Knight, 183 N.J. 449, 470 (2005) (quoting State v. Crawley, 149 N.J. 310, 316 (1997)), certif. denied, 189 N.J. 426 (2007). "Generally, a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial judge before the guilty plea." State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988). There are only three exceptions to this general waiver rule: (1) grounds preserved under a conditional or retraxit plea under Rule 3:9-3(f); (2) review of "denial[s] of admission into pretrial intervention" programs under Rule 3:28(g); and (3) review of denials of motions to suppress physical evidence due to an unlawful search or seizure under Rule 3:5-7(d). Id. at 499. Defendant entered an unconditional guilty plea, and no exceptions apply.

Defendant next contends his trial and PCR counsel were ineffective because they failed to challenge the indictment. We disagree. Ineffective assistance of counsel claims require defendant to show: (1) "'that counsel's performance was deficient[,]'" and (2) "'that the deficient performance prejudiced the defense[,]'" meaning "'counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" State v. Fritz, 105 N.J. 42, 52 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)). Defendant "must show that there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Ibid. (quoting Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696-97). "Reasonable probability" means "'a probability sufficient to undermine confidence in the outcome.'" Ibid. (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

For reasons previously discussed, counsel was not deficient. The indictment was valid and any challenge would have failed. "The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990). See Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.

Defendant next raises a number of reasons why Judge Batten erred in denying his PCR petition. Among them are that defendant should have been allowed to withdraw his guilty plea because the plea judge did not advise him of his exposure to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and because trial counsel was ineffective for failing to advise him of the potential exposure to commitment under the SVPA. These contentions are without merit. The SVPA did not exist at the time defendant was sentenced. Also, State v. Bellamy, 178 N.J. 127, 142-43 (2003) affords defendant no relief because that case applies "only to cases pending direct review at the time of the rule's announcement." Defendant never filed a direct appeal.

Defendant also contends trial counsel was ineffective for failing to advise him of his right to a Horne hearing challenging the evaluation of the Adult Diagnostic and Treatment Center at Avenel (ADTC). This contention also is without merit. Defendant signed a Supplemental Plea Form For Sexual Offenses, which contains the following provision:

3. Do you understand you will be able to challenge the findings of the [ADTC] in a hearing and that at that hearing you will have the right to confront the witnesses against you and to cross-examine them and then present evidence on your own behalf?

Defendant responded, "Yes" when the plea judge asked if he read and signed the plea form, and reviewed it with his attorney.

Defendant also contends trial counsel was ineffective because he failed to: properly prepare and inform him of the charges that he faced and the sentences that could be imposed on the respective crimes; properly investigate or prepare for trial; advise him of the consequences of the plea; adequately communicate with him; discuss defenses, witnesses or review the discovery in detail; advise him of the quantum of prison time exposure prior to the plea and the sentencing consequences; advise him that he would serve more time at the ADTC than in prison; and advise him that after serving the ADTC sentence he would be subject to civil commitment. Following our review of the record, we are not persuaded by defendant's contentions.

Defendant freely and voluntarily pled guilty. A court may not accept a guilty plea "without first questioning the defendant personally, under oath[,]" and concluding "there is a factual basis for the plea," the plea is voluntary, and defendant understands the nature of the charges and the plea's consequences. R. 3:9-2. This occurred here.

Also, "'[a] guilty plea voluntarily entered may not be withdrawn except pursuant to leave granted in the exercise of the trial court's discretion.'" State v. Smullen, 118 N.J. 408, 416 (1990) (quoting State v. Huntley, 129 N.J. Super. 13, 16 (App. Div.), certif. denied, 66 N.J. 312 (1974)). "[W]hen a voluntary and knowing plea bargain has been entered into simultaneously with the guilty plea, defendant's burden of presenting a plausible basis for his request to withdraw his guilty plea is heavier." Huntley, supra, 129 N.J. Super. at 18. A "defendant should be permitted to withdraw from a plea if all of its material terms and relevant consequences were not fully understood." Smullen, supra, 118 N.J. at 417 (citing State v. Howard, 110 N.J. 113, 122 (1988)). However, "[w]here there is not a significant possibility of harm to the defendant from some factual inaccuracy," it is considered "a disservice to the State and to the public" if a plea is vacated "every time a technical error" occurs. State v. Taylor, 80 N.J. 353, 366 (1979). A whimsical change of mind by the defendant, or the prosecutor, will not be a valid reason for altering the bargain. Ibid. (citing Huntley, supra, 129 N.J. Super. at 18). In order "[t]o vacate the plea, defendant must show not only that he was misinformed of the terms of the agreement or that the sentence violated his reasonable expectations, but also that he is prejudiced by enforcement of the agreement." Howard, supra, 110 N.J. at 123 (citing Taylor, supra, 80 N.J. at 363). The court will not vacate the plea "if knowledge of the consequences would not have made any difference in the defendant's decision to plead." Ibid.

Our review of the record convinces us that defendant knew the exact terms of his plea agreement and their consequences. The plea judge explicitly stated the charges for each count to which defendant pled guilty. Defendant acknowledged he understood the charges and had no questions about them or their factual bases. Defendant also acknowledged that he read and freely signed the plea form and reviewed it with counsel; he understood that by pleading guilty he was admitting the charges and was actually guilty of them; the court could in its discretion possibly confine him for as long as one half the custodial sentence imposed before becoming eligible for parole; he had to submit to Avenel examinations and if the examinations revealed his conduct was repetitive and compulsive, the judge could confine him to the ADTC; he had the right to challenge the ADTC findings at a hearing, confront and cross-examine adverse witnesses and present evidence; and finally, if sentenced to ADTC, parole would not be guided by normal parole rules and he could spend more time in treatment than if sentenced to State prison. Defendant also acknowledged that by pleading guilty, he was giving up his right to a trial at which the State would have the burden of proof beyond a reasonable doubt; he understood the maximum penalties for the charged crimes; there was a possibility that by pleading guilty the court could commit defendant to the ADTC, instead of a normal State prison sentence, and the parole consequences involved therein; and finally, that he was subject to Megan's Law, which required "community supervision for life as part of any sentence together with all of the registration and notification laws pursuant to Megan's Law that might be deemed to be applicable."

Defendant was free at any time to say he either did not understand the terms of his guilty plea or was not satisfied with counsel, yet did not. Rather, when questioned as to counsel's services, defendant indicated he was satisfied and not unclear or in need of further explanation. Without specific facts as to how trial counsel misinformed defendant about the nature of the plea and possible alternatives, along with how such actions prejudiced defendant, his claims of ineffective assistance of counsel fail. We are satisfied that Judge Batten's factual findings that defendant failed to establish a prima facie claim of ineffective assistance of trial counsel are amply supported by "sufficient credible evidence," and we will not disturb them. State v. Johnson, 42 N.J. 146, 162 (1964).

Defendant next contends his sentence is invalid because it was disparate from B.P.'s sentence. We disagree. B.P pled guilty to first degree aggravated sexual assault. The sentencing judge sentenced B.P for a second degree crime after finding that the mitigating factors substantially outweighed the one aggravating factor. B.P received a five-year sentence with no parole disqualifier.

We review sentences to determine "whether the correct sentencing guidelines . . . [were] followed[,]" "whether there is substantial evidence in the record" upon which the court applied those guidelines, and whether the court "clearly erred" in applying those guidelines "by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors." State v. Roth, 95 N.J. 334, 365-66 (1984). "[A] trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989) (citing State v. Kruse, 105 N.J. 354, 359-60 (1987)). Assuming the trial court does that, an appellate court should not "substitute its judgment for that of the trial court." Id. at 216, 220. A sentence will be reversed when it "shocks the judicial conscience." Roth, supra, 95 N.J. at 364 (citing State v. Whitaker, 79 N.J. 503, 512 (1979)).

"[M]ere excessiveness of sentence otherwise within authorized limits, as distinct from illegality by reason of being beyond or not in accordance with legal authorization, is not an appropriate ground of [PCR] and can only be raised on direct appeal from the conviction." State v. Clark, 65 N.J. 426, 437 (1974); State v. Pierce, 115 N.J. Super. 346, 347 (App. Div.), certif. denied, 59 N.J. 362 (1971); R. 3:22-2(c). Moreover, "a sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter." State v. Hicks, 54 N.J. 390, 391 (1969) (citing State v. Gentile, 41 N.J. 58, 59-60 (1963)).

Because defendant is only challenging the excessiveness of his sentence, not its legality, he is procedurally barred from doing so. Nevertheless, based upon are review of the record, we agree that defendant's sentence is not disparate from B.P.'s sentence. We are satisfied there is ample credible evidence that defendant's culpability was far greater than B.P.'s culpability. For example, defendant committed at least ten deviant sexual acts on his young daughter over a three-year period, and B.P. committed only one; B.P. reported the matter to the police; B.P. was convicted of one first degree crime, whereas defendant was convicted of ten first degree and thirty second degree crimes; defendant penetrated his daughter and performed cunnilingus on her; defendant rubbed his penis on his daughter's vagina and masturbated in her presence; and defendant forced his daughter to perform an act of fellatio on him. There also is ample support for the finding of aggravating factors one, two, three, and nine, N.J.S.A. 2C:44-1a(1), (2), (3) and (9), and only mitigating factor seven, N.J.S.A. 2C:44-1b(7). Also, the plea forms do not indicate defendant would receive a five-year sentence, and defendant knew his potential sentence could be as much as fifty years.

Finally, defendant contends his sentence should be vacated because the sentencing judge improperly imposed a plea cutoff and refused to allow renewed plea negotiations when he changed attorneys one day before the plea cutoff. We reject this contention. Although defendant substituted counsel one day before the plea cutoff and before completion of discovery, he never asked for renewed plea negotiations. He also produced no evidence that he was coerced or forced into entering the plea agreement, or that the State would have participated in further negotiations.

Affirmed.

In exchange for the plea agreement, the State agreed to recommend dismissal of a separate indictment relating to defendant's sexual abuse of another child, but did not agree to recommend a sentence.

Defendant is serving his prison term at Avenel.

Judge Manuel Greenberg held the plea hearing, Judge Carmen Alvarez sentenced defendant, and Judge Batten heard the PCR petition.

Defendant was sentenced January 20, 1998, and the SVPA became effective August 12, 1999.

State v. Horne, 56 N.J. 372 (1970).

The sentencing judge found that B.P. had two valid defenses: abused women syndrome and mental deficiency disease.

(continued)

(continued)

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A-0570-06T4

RECORD IMPOUNDED

April 7, 2008