STATE OF NEW JERSEY v. B.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

B.S.,

Defendant-Appellant.

_______________________________________

December 13, 2013

Submitted November 12, 2013 - Decided

Before Judges Harris and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-11-1539.

Joseph E. Krakora, Public Defender, attorney for appellant (Virginia Drick Messing, 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 appeals from the October 15, 2010 order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

I.

On Sunday April 16, 2006, L.C. (Linda),1 who was eleven at the time, went to Easter services with her mother and her cousin, P.S. (Paula). Linda's aunt was preaching that day and after listening to her aunt's sermon about discipline and respect, Linda decided to tell her mother that defendant, known to her as her Uncle B., had been sexually abusing her. While they were still in church, Linda explained that Uncle B. would touch her in her private area while she was sleeping. Later that day, Paula, who was thirteen, also claimed that defendant sexually abused her.

The police were notified and both girls were interviewed. Further investigation revealed that a third victim, L.S. (Lauren), had also been sexually abused.

The police then interviewed defendant, and after waiving his Miranda2 rights, he admitted abusing all three girls and one other, U.R. (Ursula). Defendant, who was twenty, abused Linda and Ursula on various dates in 2005 and 2006, while he abused Paula and Lauren when he was a minor.

Defendant was arrested and charged with the sexual abuse of all four girls. Two of the sexual assault charges (Paula and Lauren) occurred when defendant was a juvenile. On November 5, 2007, defendant agreed to waive those charges to the Law Division. He then pled guilty, pursuant to a plea agreement, to a four-count accusation, with each count corresponding to one of the four victims. Count one charged first-degree aggravated sexual assault of Linda, N.J.S.A. 2C:14-2(a)(1). Counts two through four charged second-degree sexual assault, N.J.S.A. 2C:14-2(b).

On May 2, 2008, defendant was sentenced on count one to a twelve-year term subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. On the sexual assault charge relating to Ursula (count two), defendant was sentenced to a six-year term to run consecutively to count one. On count three, the sexual assault relating to Lauren, defendant was sentenced to six years, concurrent to the sentence on count two. On count four, the sexual assault relating to Paula, defendant was sentenced to a six-year term, to run concurrently to the sentences imposed on counts two and three.

No direct appeal was filed. On June 15, 2009, defendant filed a pro se PCR petition alleging ineffective assistance of plea counsel for failing to advise him "on the amount of charges against [him]." Counsel was assigned to defendant and a supplemental petition and brief were filed. On October 15, 2010, the petition was denied without an evidentiary hearing. This appeal followed. Defendant provides the following points for our consideration:

point i

it was judicial error to deny the motion for post-conviction relief.

point ii

the defendant is entitled to a remand to the trial court for an evidentiary hearing to determine the merits of his contention that he was denied the effective assistance of counsel.

point iii

all issues raised by defendant in any prior submissions are incorporated by reference into this brief.

II.

As a preliminary matter, we address the State's argument that defendant's claims are procedurally barred, as each could have been raised on direct appeal. We note that defendant's plea agreement contains a handwritten provision whereby he agreed to waive his right to appeal. In addition, the court reviewed this provision with defendant during the plea colloquy and informed him that if he chose to file an appeal, the State could move to set the plea aside and vacate the sentence. In light of defendant's waiver of his right to direct appeal, we will consider the merits of his claims here.

Certain well-established principles inform our review. A defendant's claim of ineffective assistance of counsel in violation of the Sixth Amendment of 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 State v. Fritz, 105 N.J. 42, 58 (1987), for consideration of similar claims raised under our State Constitution.

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." Strickland, supra, 466 U.S. at 688, 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.

Under Rule 3:22-2, there are four grounds for PCR:

(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;

(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;

(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . ;

(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

"A petitioner must establish the right to such relief by a preponderance of the credible evidence." State v. Preciose, 129 N.J. 451, 459 (1992). "To sustain that burden, specific facts[,]" which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).

Simply raising a claim of ineffective assistance does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. The decision to hold such a hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Cummings, supra, 321 N.J. Super. at 170.

Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694).

Defendant's ineffective assistance claim is grounded in his counsel's failure to argue for concurrent terms during his sentencing. Defendant does not take issue with his eighteen-year sentence. Rather, he submits the court should have sentenced him to eighteen years on count one and concurrent sentences on counts two through four. Had that course been followed, he suggests, "the calculation of time, placement, and parole would have been different."

The written plea form executed by defendant, and the plea colloquy given under oath by defendant, clearly demonstrate that the sentence he received was consistent with the agreement he bargained for. When challenging a sentence imposed in accordance with a plea bargain, the sentence "should be given great respect, since a 'presumption of reasonableness . . . attaches to criminal sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super. 61, 71 (App. Div.) (quoting State v. Sainz, 107 N.J. 283, 294 (1987), certif. denied, 145 N.J. 373 (1996); see also In re Commitment of P.C., 349 N.J. Super. 569, 578 (App. Div. 2002) ("[C]ourts generally defer to the reasonableness of negotiated criminal dispositions.").

[I]n reviewing a bargained sentence now claimed to be excessive, an appellate court should not only consider each and every term of the bargain, including the reduction or dismissal of charges, but should recognize that the defendant has freely agreed to the imposition of such sentence as part of the plea negotiations. To put it plainly, an appellate court should ordinarily defer to the presumed reasonableness of a bargained sentence and not hold it to be excessive except in compelling circumstances.

[State v. Spinks, 66 N.J. 568, 573 (1975).]

Here, defendant admitted to sexually abusing four separate minor victims over the course of four years. The decision by the sentencing court to impose consecutive sentences was appropriate and consistent with the principles outlined in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

"When a defendant has entered into a plea agreement, a deficiency is prejudicial if there is a reasonable probability that, but for counsel's errors, the defendant would . . . have decided to forego the plea agreement and would have gone to trial." State v. McDonald, 211 N.J. 4, 30 (2012). We agree with the PCR court that defendant made no prima facie showing of ineffective assistance of counsel.

Defendant's remaining arguments lack sufficient merit to warrant any additional discussion. R. 2:11-3(e)(2).

Affirmed.

1 We use fictitious names to protect the privacy of the minor children.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).