STATE OF NEW JERSEY v. MICHAEL GARGIULO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6714-04T46714-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL GARGIULO,

Defendant-Appellant.

 

 

Argued May 16, 2007 - Decided June 7, 2007

Before Judges Lefelt and Parrillo.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 97-06-1297.

Robert Carter Pierce argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr.

Pierce, Designated Counsel, of counsel and on the brief).

Jack J. Lipari, Assistant Atlantic County Prosecutor,

argued the cause for respondent (Jeffrey S. Blitz, Atlantic County Prosecutor, attorney; Mr. Lipari, of counsel and on the brief).

PER CURIAM

Defendant Michael Gargiulo appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Defendant was indicted on seventeen counts for: endangering the welfare of J.R., A.P., R.D., C.C. and R.M., children under the age of eighteen, N.J.S.A. 2C:24-4(a) (Counts I, II, III, XI, and XIV); sexual assault upon A.P., J.R., C.C. and R.M., children under the age of thirteen, N.J.S.A. 2C:14-2(b) (Counts IV, V, X, and XIII); criminal sexual contact with R.D., a child at least thirteen years of age but younger than sixteen, N.J.S.A. 2C:14-3(b) (Count VI); child abuse upon J.R., A.P., R.D., C.C. and R.M., children under the age of eighteen, N.J.S.A. 9:6-3 (Counts VII, VIII, IX, XVI, and XVII); and criminal restraint of C.C. and R.M., N.J.S.A. 2C:13-2 (Counts XII and XV). On the eve of trial, the court granted the State's motion pursuant to N.J.R.E. 404(b) to admit evidence of defendant's 1992 guilty plea to the sexual assault of a child under the age of thirteen. The following day, January 21, 1998, defendant entered into a negotiated plea agreement whereby he pled guilty to Count IV - second-degree sexual assault on A.P. - in return for the State's recommendation of a five-year sentence with no parole eligibility and dismissal of the remaining sixteen counts of the indictment. Defendant reserved the right to appeal all pretrial determinations by the court.

At the plea hearing it was ascertained that on March 30, 1997, defendant was working as a carpenter, rehabilitating a building at 412 Wister Place, Atlantic City. He was in a room at ground level with a window when he began to masturbate, knowing that young children, J.R., A.P., and R.D, were watching him through the window. The children were all under thirteen years of age and defendant was at least four years older than the children. Defendant admitted masturbating in view of the children to sexually gratify himself.

According to the presentence report, J.R.'s mother, M.R., told the responding police officers that she had heard a noise coming from a first floor apartment and saw defendant with his penis in his hand. The children also told police they had been walking down the stairs from the second floor when they heard tapping on the window of the first floor apartment. When they looked inside, defendant was holding his penis in his hand. Subsequent police investigation revealed that defendant had earlier been observed by the mother of one of the victims, R.M., "playing games" with neighborhood children "in a strange manner". In fact, one of the alleged victims, C.C., an eight- year old female, told police that a few weeks earlier, she had been playing with R.M. when defendant put his hands on her chest and fondled R.M.'s chest as well, while placing his other hand in his pants. Both girls managed to escape when R.M. elbowed defendant in the stomach.

In accordance with the terms of the negotiated plea, defendant was sentenced to a five-year term with a five-year parole bar. In addition to appropriate fees and penalties, the court imposed community supervision for life and registration under Megan's Law, N.J.S.A. 2C:7-1 to -19. Defendant appealed and we affirmed. State v. Gargiulo, Docket No. A-5350-97T5 (App. Div. October 8, 1998). Prior to his release date, defendant was civilly committed pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to 27.38, where he remains to date. Defendant then filed the instant PCR petition on May 7, 2004, which was denied on May 17, 2005. This appeal follows, in which defendant raises the following issues:

I. THE STATE VIOLATED BRADY V. MARYLAND AND THERE WAS A REASONABLE PROBABILITY THAT, BUT FOR THE STATE'S FAILURE TO DISCLOSE THE INFORMATION, MR. GARGIULO WOULD NOT HAVE PLEADED GUILTY.

II. MR. GARGIULO WAS DEPRIVED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial Counsel Failed to Advise Mr. Gargiulo That the Sexually Violent Predators Act Would Apply to Him and Possibly Lead to a Life Sentence of Imprisonment.

B. Mr. Gargiulo Was Not Advised of the Consequences of Community Supervision for Life.

C. Applicability of CSL and SPVA to Mr. Gargiulo are Direct, Not Collateral, Consequences of His Guilty Plea and Counsel's Failure to Advise Accurately Constitutes Ineffective Assistance of Counsel.

D. As a Result of Trial Counsel's Failure to Investigate and Consider Potential Defenses, Mr. Garguilo was Deprived of a Fair Trial.

III. MR. GARGIULO WAS DEPRIVED EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL.

IV. THE CUMULATIVE EFFECT OF THE BRADY VIOLATION, COUPLED WITH TRIAL AND APPELLATE COUNSEL'S INEFFECTIVE ASSISTANCE WARRANT REVERSAL OF THE CONVICTION AND A NEW TRIAL.

V. THE APPLICABILITY OF THE SVPA TO MR. GARGIULO VIOLATES THE CONSTITUTIONAL PROHIBITION AGAINST EX POST FACTO LAWS.

VI. THE TRIAL COURT ERRED BY NOT ORDERING AN EVIDENTIARY HEARING.

(i)

Defendant argued to the PCR court that he would not have pled guilty but for the State's Brady violation, which occurred when it failed to produce a January 21, 1998 investigative report revealing that one of the alleged juvenile victims and one of the adult witnesses were unavailable to testify and another adult witness threatened to recant her incriminating statement. Specifically, the report mentioned that J.R. no longer wished to testify and R.M.'s mother, who had previously given a statement to police, was now denying giving a statement and also refused to testify because she did not want to "be responsible for putting an innocent man in jail." Finally, the report indicated that on January 20, 1998, the day before trial, neither J.R. nor his mother, M.R., were at home, prompting the investigator to note that M.R. "is a very important witness in that she was the only adult to witness the defendant engaging in sexual acts."

The PCR court rejected defendant's claim finding that "no misinformation was given to the [defendant] with respect to the . . . State's case" and that even if there were a Brady violation, it was not material to the outcome. The judge reasoned that there were multiple victims and therefore the fact that a single witness at a given point in time failed to cooperate was not fatal to the prosecution's case. Moreover, even if a witness recanted, there were prior statements that could have been used at trial. We agree that the Brady violation was not material to the outcome of this matter.

Clearly, "the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."

Brady, supra, 373 U.S. at 87, 83 S. Ct. at 1196-1197, 10 L. Ed. 2d at 218. This rule applies whether or not the defense requested the exculpatory evidence. State v. Parsons, 341 N.J. Super. 448, 454 (App. Div. 2001). "In order to establish a Brady violation, the defense must demonstrate: (1) the prosecutor failed to disclose the evidence, (2) the evidence was of a favorable character to the defendant, and (3) the evidence was material." Id. at 454-55, citing Moore v. Ill., 408 U.S. 786, 92 S. Ct. 2562, 33 L. Ed. 2d 706 (1972).

In United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985), the Supreme Court adopted a unitary materiality standard applicable in all Brady violation cases. See also Kyles v. Whitley, 514 U.S. 419, 433, 115 S. Ct. 1555, 1565, 131 L. Ed. 2d 490, 505 (1995). Under the unitary standard, as adopted by our Supreme Court in State v. Knight, 145 N.J. 233, 247 (1996), evidence is "material" if there is a "reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, supra, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494; accord Kyles, supra, 514 U.S. at 433, 115 S. Ct. at 1565, 131 L. Ed. 2d at 505; Knight, supra, 145 N.J. at 246. A "reasonable probability" is one that is "sufficient to undermine confidence in the outcome." Bagley, supra, 473 U.S. at 682, 105 S. Ct. at 3383, 87 L. Ed. 2d at 494.

Here, we are satisfied that defendant has not established, even by prima facie proof, the "materiality" element of his Brady claim, i.e., that had the information been disclosed, the outcome would have been different. The prosecution had five child victims (J.R., A.P., R.D., C.C., and R.M.) and only one child victim (J.R.) and two mothers (M.R. and R.M.) were potentially unavailable or unwilling to testify. Interestingly enough, A.P., the victim in Count IV of the indictment to which defendant pled guilty, was scheduled to testify at trial, and there is no reason to believe, based on the record, that he and the other available child victims would not have testified in accordance with their pretrial statements to the police. Moreover, even the one child and one adult witness who expressed reluctance to testify could have been compelled to do so and their prior incriminating statements used to neutralize any recantation at trial. As for M.R., she could have been located during trial and made to testify. But even absent the missing witnesses, there is no demonstration by defendant on the PCR petition that the State otherwise lacked sufficient evidence to sustain the charges against defendant.

Rather than proceed to trial, it is apparent defendant chose to plead guilty because of the generous nature of the negotiated agreement with the State and its promise to recommend lenity in sentencing. Considering the seventeen counts he was facing involving five separate child victims, as well as the damning N.J.R.E. 404(b) evidence against him, defendant struck a favorable plea deal, N.J.S.A. 2C:14-6, a decision defendant has simply not demonstrated would have been any different had there been full disclosure by the State of its January 21, 1998 investigative report.

(ii)

Defendant next argues that he was deprived of effective assistance of counsel because trial counsel failed to advise him of the SVPA's applicability or of the consequences of community supervision for life, both of which are direct consequences of his guilty plea, and also failed to investigate and consider potential defenses. The PCR judge rejected this claim as well, concluding:

It's alleged that trial counsel . . . was ineffective. I would suggest that the record clearly demonstrates to the contrary, that he was diligent, did what he was supposed to do, vigorously advocated for his client, and ultimately made a sensible [plea] recommendation under the strength of the State's proofs as they were perceived.

As for the claimed failure to advise defendant of the SVPA, the PCR judge simply noted that the statute had not been enacted at the time of defendant's plea, and therefore trial counsel was not ineffective for failing to predict what the Legislature was going to do in the future. Finally, the PCR court also held that community supervision for life was a collateral consequence and did not require setting aside the plea agreement and conviction. We agree.

It is virtually axiomatic that 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. See, e.g., Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063-64, 80 L. Ed. 2d 674, 692-93, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Governed by this standard, none of defendant's claims warrant an evidentiary hearing, State v. Preciose, 129 N.J. 451, 462 (1992), much less reversal of his conviction.

First, defendant claims counsel's failure to advise him of the SVPA's applicability, with the potential of indefinite civil commitment, warrants vacation of his guilty plea or, alternatively, preclusion of his civil commitment. We disagree.

"[B]efore accepting a guilty plea, the trial court must be satisfied that (1) there is a factual basis for the plea, (2) the plea is made voluntarily, and (3) defendant understands the nature of the charge and the consequences of the plea." State v. Bellamy, 178 N.J. 127, 134 (2003). A defendant has the right to be informed about the material elements of his plea agreement and must not be misinformed. Ibid. A defendant also has the right to have his or her "reasonable expectations" fulfilled. Ibid. Thus, a defendant may withdraw a guilty plea if he was misinformed of the terms of the agreement or if his reasonable expectations were violated. Id. at 134-35. See also R. 3:21-1. In order to vacate a guilty plea, a defendant must show that he was prejudiced by enforcement of the agreement. Bellamy, supra, 178 N.J. at 135. A plea should not be vacated if "knowledge of the missing conditions would not have affected defendant's decision to plead." Ibid. The withdrawal of a guilty plea is within the broad discretion of the court. Ibid.

In Bellamy, supra, the Court held that "fundamental fairness" requires a court to inform a defendant of the possible consequences of his guilty plea under the SVPA. Id. at 138. This is because a defendant who has committed a predicate offense may be faced with commitment for a period in excess of his sentence. Ibid. The Court stated:

when the consequence of a plea may be so severe that a defendant may be confined for the remainder of his or her life, fundamental fairness demands that the trial court inform defendant of that possible consequence. The failure of either the court or defense counsel to inform defendant that a possible consequence of a plea to a predicate offense under the Act is future confinement for an indefinite period deprives that defendant of information needed to make a knowing and voluntary plea.

[Id. at 139.]

However, this holding was given only a limited retroactive application. Id. at 140. The holding of Bellamy applied only to pending cases in which the defendant had not exhausted all avenues of direct review. Id. at 143. This limited retroactivity is, no doubt, due to the fact that commitment under the SVPA is a collateral consequence and not a direct or penal consequence of pleading guilty to a predicate sexual offense, of which there was no duty, prior to Bellamy, to inform a defendant. Id. at 137-38.

In this case, defendant entered his guilty plea on January 21, 1998, and he was sentenced on April 4, 1998. His direct appeal was concluded on October 9, 1998. Defendant, therefore, is not subject to the holding in Bellamy because his direct appeal was already concluded when Bellamy was decided on December 11, 2003.

Additionally, the SVPA was enacted by the Legislature on August 12, 1998, with an effective date of August 12, 1999. N.J.S.A. 30:4-27.24, L. 1998, c. 71 1. Defendant pleaded guilty seven months prior to the enactment of the SVPA. Therefore, defense counsel could not have known the exact parameters of the SVPA at the time defendant entered his guilty plea, and cannot be faulted for failing to anticipate such. As the trial court correctly held, to require defense counsel to predict what the Legislature would do in the future is an "impossible burden".

Defendant's second claim of ineffective assistance is that counsel erroneously advised him he could return to California once he completed his sentence, which he could not do because of the conditions of community supervision for life. He argues that, had his trial counsel given him proper legal advice, he would not have pleaded guilty. We reject this claim as well.

Clearly, defendants must be advised of whether the crimes to which they are pleading guilty entail a sentence that includes community supervision for life. Moreover, defendants must be advised that community supervision for life is the equivalent of lifetime parole. The failure to properly advise a defendant on this subject could result in permission to retract the guilty plea. See State v. Jamgochian, 363 N.J. Super. 220, 223 (App. Div. 2003); State v. Horton, 331 N.J. Super. 92, 103 (App. Div. 2000).

In Jamgochian, 363 N.J. Super. at 226-27, we remanded for an evidentiary hearing where the defendant, who was subject to community supervision for life under Megan's Law, contended he specifically asked his attorney, before he pleaded guilty, whether he would be able to travel once his prison term was served. He said that his attorney clearly told him that he would not be subject to travel limitations if his Avenel evaluation did not find him to be a threat to himself or society. Id. at 223. He also said that his attorney conferred with the trial judge and reported back that the trial judge would not sentence him to anything that would restrict him from traveling to another state. Ibid. His attorney certified to this. Id. at 223-24.

We held that community supervision for life imposed pursuant to Megan's Law is a penal consequence and not a collateral consequence of a sentence, and "a guilty plea entered without sufficient understanding of the penal consequences is normally invalid." Id. at 224-25. Accordingly, we remanded the matter for an evidentiary hearing to determine if the defendant had in fact been misinformed and whether the correct information would have made a difference in his decision to plead guilty. Id. at 226. However, we also stated:

We add by way of dictum that we do not today go so far as to hold that a trial court has the obligation to inform a defendant of all the details of community supervision for life. . . . Chapter and verse are not necessary, but the court should at least assure itself that defense counsel has discussed the matter with his client and defendant understands the nature of community supervision for life as the functional equivalent of lifetime parole.

[Id. at 227.]

Here, contrary to defendant's assertion that he was not informed that he would be subject to community supervision for life, at sentencing, defense counsel expressly advised the court that defendant was aware that "there may be community service for life". Additionally, defense counsel explicitly stated: "We have gone over these additional requirements related to sex offenses". The court further questioned defendant about whether he understood that there would be community supervision for life, and defendant stated that he did.

It is not clear from the record what defendant was told about his ability to move to California notwithstanding the imposition of community supervision+ for life. However, it is possible that supervision could have been transferred on consent from this State to California. See Sanchez v. Parole Bd., 368 N.J. Super. 181 (App. Div. 2004), appeal dismissed, 187 N.J. 487 (2006). Thus, the possibility that defendant's ability to move out of State might have been affected by the imposition of community supervision for life was remote, speculative, and neither a direct nor penal consequence of his plea. In any event, defendant has never been deprived of the right to move because he was civilly committed under the SVPA prior to his release from prison. As such, any claimed deficiency in this regard on counsel's part simply fails to meet the "prejudice" prong of the Strickland test.

Defendant's final claim of ineffective assistance is that counsel failed to properly investigate the matter pre-trial. This claim also fails. Defendant does not demonstrate what facts favorable to his defense further pre-trial investigation would have uncovered other than perhaps the potential unavailability of three State witnesses, which we have already concluded would likely not have affected defendant's decision to plead guilty.

Having found no merit in any of defendant's claims of ineffective assistance of trial counsel, his similar claims as to appellate counsel must fail as well. The same legal standard applies to claims of ineffective assistance of appellate counsel as to trial counsel. State v. Morrison, 215 N.J. Super. 540, 545-46 (App. Div.), certif. denied, 107 N.J. 642 (1987). In determining whether appellate counsel raised the proper issues on a defendant's direct appeal, the court must recognize that the process of "'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536, 106 S. Ct. 2661, 2667, 91 L. Ed. 2d 434, 445 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52, 103 S. Ct. 3308, 3313, 77 L. Ed. 2d 987, 993-94 (1983)). That is, an appellate advocate should examine the record with a view to selecting the most promising issues for review. Jones v. Barnes, supra, 463 U.S. at 752, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994. A brief that raises every colorable issue runs the risk of burying good arguments in a "verbal mound made up of strong and weak contentions." Id. at 753, 103 S. Ct. at 3313, 77 L. Ed. 2d at 994. Here, since no viable claim of ineffective assistance of trial counsel was presented, appellate counsel was not ineffective for failing to raise the issue on appeal.

(iii)

Lastly, defendant contends his confinement under the SVPA violates the ex post facto clause of the federal and New Jersey constitutions. We rejected an identical claim in In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004), and do so here for the same reasons.

(iv)

Defendant's remaining claims are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196, 10 L. Ed. 2d 215, 218 (1963).

(continued)

(continued)

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A-6714-04T4

June 7, 2007