STATE OF NEW JERSEY v. WARDELL E. MILES

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1052-07T41052-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WARDELL E. MILES,

Defendant-Appellant.

_______________________________________

 

Submitted May 5, 2009 - Decided

Before Judges Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-02-0509.

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

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Wardell E. Miles appeals from an order entered by the trial court on April 19, 2007, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was charged with first-degree kidnapping, N.J.S.A. 2C:13-1b (counts one and seven); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3), (6) (counts two and three); third-degree aggravated sexual contact, N.J.S.A. 2C:14-3a (counts four and five); second-degree burglary, N.J.S.A. 2C:18-2 (count six); third-degree aggravated assault, N.J.S.A. 2C:12-1b(7) (count eight); and first-degree attempted aggravated sexual contact, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(3), (6) (counts nine and ten).

On April 7, 2003, defendant pled guilty to count five, charging third-degree aggravated sexual contact, and count ten, which was amended to charge third-degree attempted aggravated sexual contact. The State agreed to recommend that the court sentence defendant to two consecutive four-year terms of incarceration.

At the plea hearing, defendant provided a factual basis for his plea. Defendant stated that on May 5, 2001, he committed the act of criminal sexual contact by intentionally licking the breasts of a person identified as L.S. Defendant admitted that he did so for the purpose of degrading or humiliating the victim or sexually arousing or gratifying himself.

In addition, defendant stated that on May 5, 2001, he also attempted to commit an act of aggravated sexual contact, by attempting to have sexual relations with an individual identified as J.F. He acknowledged that he committed this act for the purpose of degrading or humiliating the victim or sexually arousing or gratifying himself.

Defendant was sentenced on October 24, 2003. The court found aggravating factors under N.J.S.A. 2C:44-1a(2) (seriousness of harm inflicted upon the victim); N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record); and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The court also found a mitigating factor under N.J.S.A. 2C:44-1b(11) (incarceration would be a hardship to defendant or his family). The court determined that the aggravating factors outweighed the mitigating factors.

The court sentenced defendant in accordance with his plea and imposed two consecutive four-year terms of incarceration. The court also imposed a $200 assessment for the Violent Crimes Compensation Board, a $150 assessment for the Safe Neighborhood Services Fund, a $30 penalty for the Law Enforcement Officer's Training and Equipment Fund, and a $1,600 penalty for the Statewide Sexual Assault Nurse Examiner Program. Defendant was ordered to comply with Megan's Law, N.J.S.A. 2C:7-1 to 21; declared subject to community supervision for life; and required to submit to DNA testing. The court granted defendant appropriate jail credits.

Defendant challenged his sentencing on appeal. The appeal was heard on our excessive sentencing calendar. We affirmed the sentences imposed, expressly finding that the sentences were not manifestly excessive, unduly punitive or an abuse of the trial court's sentencing discretion. State v. Miles, No. A-5417-03 (App. Div. May 20, 2005).

In June 2005, defendant filed a pro se petition for PCR, in which he alleged that he had been denied the effective assistance of trial and appellate counsel. Defendant also alleged that he had been denied due process and equal protection under the law. The court appointed PCR counsel, who filed an amended petition which incorporated defendant's prior allegations and raised the following additional contentions:

POINT I

BECAUSE DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL, AND BECAUSE DEFENSE COUNSEL FAILED TO PROPERLY INVESTIGATE THE CRIMINAL CASES ON THE PETITIONER'S BEHALF, AND BECAUSE THE PETITIONER WAS PREJUDICED THEREBY, THE COURT SHOULD GRANT HIS MOTION FOR POST-CONVICTION RELIEF. IN THE ALTERNATIVE, BECAUSE THE PETITIONER HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, THE COURT SHOULD GRANT HIM AN EVIDENTIARY HEARING ON THIS ISSUE

POINT II

DEFENDANT-PETITIONER ENTERED INTO THE PLEA AGREEMENT BECAUSE COUNSEL ADVISED HIM HE WOULD NOT RECEIVE THE MAXIMUM PENALTY DESPITE THE PLEA AGREEMENT

POINT III

THE SENTENCE IS EXCESSIVE [AND THE] SENTENCE[S] FOR [THE] VARIOUS COUNTS SHOULD NOT BE CONSECUTIVE

POINT IV

THE SENTENCE IS EXCESSIVE

(A) REVERSAL IS REQUIRED BECAUSE THE SENTENCE SHOULD HAVE BEEN BELOW WHAT WAS FORMALLY KNOWN AS THE PRESUMPTIVE

(B) REVERSAL IS REQUIRED BECAUSE THE COURT SHOULD NOT HAVE FELT COMPELLED TO SENTENCE THE DEFENDANT TO THE MAXIMUM [EIGHT] YEARS ALLOWED BY THE PLEA AGREEMENT

POINT V

REVERSAL IS REQUIRED BECAUSE OF THE CUMULATIVE EFFECT OF THE ERRORS AND THE INEFFECTIVENESS SET FORTH IN THIS BRIEF, AS WELL AS THE ERRORS SET FORTH IN DEFENDANT'S BRIEF AND . . . ARGUMENT ON DIRECT APPEAL

The court considered the petition on April 13, 2007, and placed its decision on the record on that date. The court found that defendant had not been denied the effective assistance of counsel. The court stated that "[d]efense counsel did file motions, requested hearings, conducted extensive plea negotiations, [which] ultimately ended in defendant's [plea.]" The court also stated that the plea potentially subjected defendant to "jail time of eight years, [which is] far [less] than . . . would have been imposed if [defendant] were found guilty at trial."

The court also rejected defendant's claims regarding his sentences, noting that the sentences had been upheld on appeal. The court observed that defendant had been involved in "serious and very violent crimes in the past." The court also observed that the four-year sentences imposed on each count were not "excessive or wrongful" and, in light of the fact that the matters involved two separate sexual assaults with different victims, consecutive sentences were appropriate.

The court entered an order dated April 19, 2007, denying PCR. This appeal followed. On appeal, defendant raises the following points for our consideration:

POINT ONE

[DEFENDANT] IS ENTITLED TO A REMAND BECAUSE THE PCR COURT DID NOT ADDRESS ALL OF HIS CLAIMS ON THE MERITS.

POINT TWO

[DEFENDANT] IS ENTITLED TO A HEARING ON HIS CLAIM THAT HIS ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.

We have carefully considered the record and conclude that defendant's arguments are entirely without merit. We therefore affirm the order denying PCR substantially for the reasons stated by the trial court in the decision placed on the record on April 13, 2007. R. 2:11-3(e)(2). We add the following.

Defendant argues that the trial court erred by failing to conduct an evidentiary hearing on his PCR petition. We disagree.

"Although Rule 3:22-1 does not require evidentiary hearings to be held on post-conviction relief petitions, Rule 3:22-10 recognizes judicial discretion to conduct such hearings." State v. Preciose, 129 N.J. 451, 462 (1992). A claim of ineffective assistance of counsel may, however, warrant such a hearing because the facts relevant to such a claim "often lie outside the trial record and because the attorney's testimony may be required." Ibid. A trial court should ordinarily grant an evidentiary hearing if the defendant presents a prima facie claim of ineffective assistance of counsel. Ibid.

A claim by a defendant that he was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution is considered under the two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on the claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). The defendant also must show that counsel's deficient performance prejudiced his defense. Ibid. (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

Here, the trial court correctly found that defendant failed to present a prima facie case of ineffective assistance of counsel and therefore an evidentiary hearing was not required in the matter. In his petition, defendant asserted that his trial counsel failed to consult with him, did not investigate the relevant facts and failed to file any motions. The record supports the trial court's determination that these claims are without merit.

Although defendant alleged that trial counsel failed to consult with him, he did not explain how further consultation would have affected counsel's representation or the result of the matter. Defendant further alleged that counsel failed to investigate the matter but he did not explain what additional facts would have been revealed through further investigation or how such additional facts would have affected the outcome of the case. Defendant additionally claimed that counsel failed to make pre-trial motions but the record of the plea hearing indicates that there were several motions pending at the time defendant entered his plea.

Defendant also argues that trial counsel erred because he failed to adequately advise him concerning the plea, coerced him into entering into the plea agreement, misinformed him concerning the penalties that could be imposed and parole eligibility, and did not file a motion to withdraw the plea. The PCR court found that defendant's claims regarding the plea are totally without any foundation. The record supports that finding.

At the plea hearing, the trial court questioned defendant to ascertain whether he fully understood the potential sentences involved, the penalties that could be imposed and the other penal consequences of the plea. The court also asked defendant whether anyone had forced or threatened him into pleading guilty and he replied, "no." Furthermore, defendant told the court that counsel had answered all of his questions concerning the plea and its consequences.

The transcript of the plea hearing indicates that the court found that defendant had entered his plea "freely, voluntarily, [with] full knowledge by the defendant of the consequences[.]" The court stated that it was satisfied that defendant understood the consequences of the plea "after full and adequate discussion with counsel." Thus, there is no merit in defendant's contention that he did not receive the effective assistance of counsel when he entered his plea.

Defendant further maintains that the PCR court erred by failing to rule on all of the claims he set forth in his petition. Again, we disagree. Defendant says that the PCR court did not address each and every allegation in his ineffective-assistance-of-counsel claim, but the court rejected that claim in its entirety.

Defendant further argues that the PCR court did not address his claims regarding the absence of a criminal complaint and a probable cause hearing. The record shows, however, that the court addressed those allegations and correctly found that they were meritless.

Defendant also argues that the PCR court did not address his contentions regarding appellate counsel. Defendant contends that appellate counsel erred by failing to raise the issue as to whether his plea was voluntary. Although the PCR court did not expressly address that claim, we are satisfied that it is entirely without merit.

In our judgment, appellate counsel did not err by failing to argue that defendant did not enter his plea voluntarily. The record of the plea hearing establishes that defendant entered his plea voluntarily, knowingly and intelligently.

We have considered all of defendant's other contentions and find them to be of insufficient merit to warrant comment in this opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-1052-07T4

June 3, 2009