STATE OF NEW JERSEY v. ROBERT ARNWINE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4540-07T44540-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT ARNWINE,

Defendant-Appellant.

_______________________________________

 

Submitted July 22, 2009 - Decided

Before Judges Yannotti and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 95-11-0702.

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

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Stephen E. Raymond, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Robert Arnwine appeals from an order entered by the trial court on January 3, 2008, denying his petition for post-conviction relief ("PCR"). We affirm.

I.

In April 1995, defendant was arrested and charged with first-degree sexual assault, in violation of N.J.S.A. 2C:14-2a(1). On November 3, 1995, defendant executed a waiver of indictment and pled guilty to second-degree sexual assault, in violation of N.J.S.A. 2C:14-2b. Defendant provided the court with a factual basis for his guilty plea. In response to questions by his attorney, defendant admitted that during the month of November 1994 he had sexual contact with C.S. by touching her breasts for sexual gratification. Defendant additionally stated that in November 1994, C.S. was under the age of thirteen and he was more than four years older than C.S.

The trial court explained to defendant the consequences of entering the plea. Among other things, the court stated that defendant would be required to register and could be subject to community notification under Megan's Law, N.J.S.A. 2C:7-1 to 7-11. The court also informed defendant that he could be subject to community supervision for life ("CSL") pursuant to N.J.S.A. 2C:43-6.4. The CSL statute took effect on October 31, 1994. L. 1994, c. 130, 2.

The court additionally told defendant that CSL meant that even though defendant had been released from confinement, someone would check on him and he would have to report on a regular basis. The court found that defendant understood the nature of the charges against him, the nature of the plea agreement and the consequences of entering the plea.

Defendant was scheduled to be sentenced on April 19, 1996. On that date, defendant informed the court that he wanted to retain a new attorney, withdraw his guilty plea and proceed to trial. The trial court adjourned the matter to May 8, 1996. On that date, defendant told the court that he no longer wanted to withdraw his plea and asked to proceed with sentencing. The court recessed the matter to afford defendant an opportunity to discuss the matter further with his family and his attorney.

Later in the day on May 8, 1996, the court questioned defendant as to whether he wanted to proceed with sentencing. Defendant again stated that he did not want to withdraw the plea. He said that he did not have any questions or concerns that had not been answered or resolved. The prosecutor noted on the record that defendant would be subject to CSL because the offense had occurred after October 31, 1994.

The court sentenced defendant to five years of incarceration and stated that defendant would be subject to CSL. A judgment of conviction was entered on May 8, 1996. The judgment did not, however, state that defendant would be subject to CSL. On June 23, 1997, the court filed an amended judgment of conviction imposing CSL. Defendant did not file a direct appeal from either the original judgment or the amended judgment.

On February 26, 2001, defendant's attorney filed a petition for PCR on defendant's behalf. Defendant asserted that he was not subject to CSL because, based on newly discovered evidence, the offense had been committed prior to October 31, 1994. In support of this assertion, defendant submitted an affidavit from Sharon DeCamp ("DeCamp"), in which DeCamp stated that the incident "must have been prior to October 22, 1994."

By letter dated February 28, 2001, the court advised defendant's attorney that, if defendant had admitted to committing the offense after October 31, 1994, PCR would not be appropriate. On April 26, 2001, defendant's counsel withdrew the PCR petition and on August 22, 2001, filed a motion for withdrawal of the guilty plea.

In support of that motion, counsel asserted that defendant suffered from "intellectual limitations" due to head injuries he suffered in a motorcycle accident in 1990. Counsel stated that, because of these "mental limitations," defendant did not know at the time he entered the plea "exactly or even generally when the offense occurred." Counsel said that, when defendant entered the plea, he agreed that he had committed the offense in November 1994, but this was not "a specific endorsement of the time period of the offense." On October 5, 2001, the trial court denied the motion.

On June 22, 2005, defendant filed a pro se petition for PCR. Counsel was appointed and filed a brief in support of the petition. Defendant argued that he was entitled to withdraw his guilty plea because the court had misinformed him regarding CSL. He also said that his attorney had not informed him about CSL. Defendant further asserted that he was under a "mental deficiency" at the time he entered his plea, which prohibited him from understanding all of the questions posed to him.

Defendant additionally alleged that he had been denied the effective assistance of counsel. Defendant asserted that Sparaco failed to apprise him of the consequences of pleading guilty. He stated that Sparaco did not correctly determine the date of the offense, which was critical to whether defendant would be subject to CSL. He additionally alleged that Throckmorton had erroneously failed to file an appeal from the denial of his motion to withdraw his plea and failed to argue that defendant had been denied the effective assistance of counsel at the time of the plea and sentencing.

The trial court considered the petition on December 21, 2007. After hearing the arguments of counsel, the trial court rendered a decision from the bench. The court found that the petition was barred by Rule 3:22-12 because the petition had been filed more than five years after entry of the judgment of conviction. The court entered an order denying PCR and this appeal followed.

On appeal, defendant raises the following arguments for our consideration:

POINT I

DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF SHOULD NOT BE TIME BARRED BECAUSE DEFENDANT'S DELAY IN FILING WAS DUE TO EXCUSABLE NEGLECT AND THE INTERESTS OF JUSTICE REQUIRE [THAT] HIS CLAIMS BE HEARD

POINT II

[DEFENDANT] RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA PROCEEDINGS FOR COUNSEL'S FAILURE TO INVESTIGATE THE FACT[S] AND LAW WHICH RESULTED IN A SENTENCE REQUIRING COMMUNITY SUPERVISION FOR LIFE

POINT III

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN COUNSEL FAILED TO ENSURE THE DEFENDANT POSSESSED THE MENTAL CAPACITY TO UNDERSTAND HIS PLEA OFFER AND THE POSSIBLE PENAL CONSEQUENCES OF SUCH

POINT IV

DEFENDANT'S PLEA [WAS NEITHER] VOLUNTARY OR KNOWING AND MUST BE WITHDRAWN AS A MATTER OF LAW

POINT V

DEFENDANT HAS SUBMITTED PRIMA FACIE EVIDENCE THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND IS THEREFORE ENTITLED TO AN [EVIDENTIARY] HEARING

II.

We turn first to defendant's contention that the PCR court erred by finding that his petition was time-barred.

Rule 3:22-12(a) provides in pertinent part that a petition for PCR may not be filed "more than [five] years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect." The five-year time bar under Rule 3:22-12(a) "is not absolute." State v. Milne, 178 N.J. 486, 492 (2004). "'[A] court may relax the time bar if the defendant alleges facts demonstrating that the delay was due to the defendant's excusable neglect or if the "interests of justice" demand it.'" Ibid. (quoting State v. Goodwin, 173 N.J. 583, 594 (2002)).

In determining whether to relax the time bar in Rule 3:22-12(a), a court "'should consider the extent and cause of the delay, the prejudice to the State, and the importance of the petitioner's claim in determining whether there has been an "injustice" sufficient to relax the time limits.'" Ibid. (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). Furthermore, "'[a]bsent compelling, extenuating circumstances, the burden to justify filing a petition after the five-year period will increase with the extent of the delay.'" Ibid. (quoting Afanador, supra, 151 N.J. at 52).

Here, defendant challenges the provision of the judgment of conviction imposing CSL. He argues that the CSL statute was inapplicable because the offense was committed prior to October 31, 1994, which is the effective date of the statute. Defendant contends that he should be permitted to withdraw his plea because he was not adequately informed concerning CSL and his plea was not knowing and voluntary. Defendant further argues that he was denied the effective assistance of counsel because the attorney who represented him at the plea and sentencing proceedings did not adequately advise him concerning the significance of the date of the offense and that there was a genuine issue of fact as to when he committed the offense.

In our judgment, the trial court correctly found that defendant has not established that his failure to raise his claims within five years of his sentencing is due to excusable neglect. To the extent that defendant believed that an appeal should have been taken from the denial of his motion to withdraw his plea or that he was denied the effective assistance of counsel at the time of the plea and sentencing, he could have raised those claims in a timely manner. Indeed, the core facts upon which such claims are based were known to defendant in 2001 when he filed his initial PCR petition and motion for withdrawal of the plea. Furthermore, the fact that defendant filed a PCR petition in 2001 is irrelevant. That petition was withdrawn and not re-filed within the five years required by Rule 3:22-12(a).

III.

Defendant argues, however, that the interests of justice require that his PCR claims be considered notwithstanding his failure to file a timely PCR petition. Defendant contends that the trial court and his trial counsel failed to properly inform him concerning CSL at the time he entered his plea. Defendant thus argues that his plea was not entered knowingly, intelligently and voluntarily. In our judgment, these contentions are not supported by the record.

As we have explained, when defendant entered his plea, the court explained that if defendant pled guilty, he would be subject to CSL. The court told defendant that being subject to CSL means that, even after defendant was released from incarceration and was out in the community, "there may be someone [who] checks up on you or that you have to report to on a regular basis." Defendant said that he understood and did not have any questions regarding CSL.

In State v. Jamgochian, 363 N.J. Super. 220 (App. Div. 2003), the defendant argued that he had been misinformed concerning the consequences of CSL. Id. at 226. The defendant's attorney stated that he had informed defendant that CSL would not limit his ability to travel about the country and CSL would only require that he register once a year. Id. at 223-24. The defendant thus entered a guilty plea with the apparent understanding that he could still travel as his business required. Ibid.

We held that, when a court takes a plea, it is not required "to inform a defendant of all the details of . . . [CSL]." Id. at 227. We added that "[c]hapter 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 . . . [CSL] as the functional equivalent of life-time parole." Ibid. We also said that, "[i]f the trial court is aware that a particular aspect of a penal consequence needs clarification then it should take the time to explain further." Ibid.

Here, the trial court made clear that after defendant was released from incarceration, he would have to register and would be subject to supervision for the remainder of his life. Moreover, defendant does not argue that he was unaware of any particular consequence of CSL, as was the case in Jamgochian. We therefore conclude that defendant was adequately informed about the essential features of CSL when he entered his plea.

IV.

Defendant further argues that he was denied the effective assistance of counsel because his attorney failed to investigate the facts regarding the applicability of CSL. He also asserts that counsel erred because counsel allowed him to plead guilty even though he did not have the "mental capacity" to make an informed decision when he entered his plea.

A claim that a defendant was denied the effective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to prevail on such a claim, a defendant first must show that his attorney's handling of the matter "fell below an objective standard of reasonableness." Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant also must show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our Supreme Court has adopted this standard for evaluating ineffective-assistance-of-counsel claims. State v. Fritz, 105 N.J. 42, 58 (1987).

As we stated previously, when he entered his plea, defendant conceded that he committed the offense in November of 1994. Defendant asserts, however, that there is evidence that the offense occurred prior to October 31, 1994 and, if so, he would not be subject to CSL. Defendant says that his trial attorney erred because he did not adequately investigate these facts.

The record shows that in October and November 1994, defendant and his mother were residing at the Budget Lodge Motel in Browns Mills, New Jersey. C.S. also was residing at the motel with her mother and brother. At the time, defendant was nineteen and C.S. was eleven years old.

In March 1995, C.S. gave a statement to the police. She said that she probably moved in to the Budget Lodge Motel in mid-September of 1994 and moved out of the motel three days before Thanksgiving of that year. She stated that defendant came to her room, made her take off her clothes and had vaginal intercourse with her against her will. C.S. said that this occurred "a couple [of] weeks" before she moved from the motel. She stated that the incident occurred in November 1994.

C.S.'s brother, C.F., gave a statement to the police in July 1995. C.F. said that the offense occurred "[a]round October or November" of 1994. C.F. stated that he and defendant had been drinking. C.F. and defendant returned to C.S.'s room in the motel. C.F. then left the room to go see DeCamp. C.F. stated that he was away for fifteen minutes and, when he returned, defendant and C.S. were not in the room. C.S. did not tell him about the incident and defendant did not say anything to him about C.S. C.F. asserted that his mother subsequently told him that defendant had sexually assaulted C.S.

C.S.'s mother gave a statement to the police in March 1995. She recounted that she, C.S. and C.F. resided at the Budget Lodge Motel until the third week of November 1994. She stated that in February 1995, C.S. reported to her that defendant raped her at the motel. C.S. said that the incident occurred "like a week before" they moved out of the motel.

In addition, on April 4, 1995, DeCamp gave a statement to the police. She stated that she had the opportunity to meet C.S. and her family "in around September or October of 1994" when she was residing at the Budget Lodge Motel in Browns Mills. DeCamp said that one day, C.S. came to her room.

According to DeCamp, defendant and C.F. had been drinking. C.F. called C.S. and told her to come up to her room. Thereafter, C.F. entered DeCamp's room. DeCamp said that C.S. returned twenty minutes later and told her that defendant kept grabbing at her. C.S. told DeCamp that defendant had tried to push her into the bathroom and have sex with her. DeCamp did not indicate when the incident occurred.

In December 2000, however, DeCamp provided an affidavit in which she stated that the incident "must have" occurred "before October 22, 1994." DeCamp said that she was "confident" of that date because she "clearly" recalled that she had discussed plans for her daughter's birthday party with C.S. "both before and after she went to the motel room." She stated that the party was to occur on her daughter's birthday, which was October 22. DeCamp asserted that "[t]he date of [C.S.'s] disclosure was prior to [her] daughter's birthday and therefore must have been prior to October 22, 1994."

In our view, there is insufficient evidence to support defendant's contention that his attorney erred by failing to investigate the facts concerning the date of the offense. As we have explained, the statements provided by C.S. and her mother to the police in 1995 established that defendant committed the offense in November 1994. When he entered his plea, defendant stated on the record that the incident occurred in November 1994. We must assume that he testified truthfully. There is no basis for concluding that defendant would have testified differently if his attorney had conducted a further investigation into the matter.

We recognize that DeCamp later said the incident occurred prior to October 22, 1994, but that statement was not provided until December 2000, more than five years after defendant committed the offense. Even if DeCamp had provided this information when defendant entered the plea, it would have been weighed against the statements of C.S. and her mother, which established that the offense had been committed in November 1994. Moreover, as we stated previously, defendant testified under oath that he committed the offense in November of 1994.

We are therefore satisfied that defendant was not prejudiced by his attorney's alleged failure to conduct a further investigation of the facts concerning the date of the offense before defendant entered his plea. In our judgment, the evidence fails to establish that the result of the proceeding would have been different had defendant's trial counsel investigated the matter further.

Defendant also argues that his trial attorney erred because he allowed defendant to plead guilty even though he did not have the "mental capacity" to make an informed decision at the time he entered his plea. Defendant maintains that his plea was not knowing, intelligent or voluntary. There is, however, insufficient evidence to show that defendant was mentally incapable of entering a knowing, intelligent and voluntary plea.

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

Affirmed.

Defendant's attorney was Bruce L. Throckmorton ("Throckmorton"). Richard Sparaco ("Sparaco") had represented defendant when he entered his plea and when he was sentenced.

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A-4540-07T4

RECORD IMPOUNDED

August 28, 2009