STATE OF NEW JERSEY v. CHARLES SALISBURY

NOT FOR PUBLICATION WITHOUT THE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.

CHARLES SALISBURY,

Defendant-Appellant.

July 2, 2014

Submitted May 28, 2014 Decided

 
Before Judges Alvarez and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-12-2203.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).

Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Charles Salisbury appeals the August 20, 2012 Law Division denial of his application to set aside a guilty plea and for post-conviction relief (PCR). We affirm.

On November 18, 2010, defendant was sentenced, pursuant to a plea agreement, to a term of four years imprisonment, subject to eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), Megan's Law, N.J.S.A. 2C:7-2 to -23 (Parole Supervision for Life), N.J.S.A. 2C:43-6.4, and no contact with the victim, M.P., N.J.S.A. 2C:14-12. Defendant did not appeal the conviction. Defendant pleaded guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), however, the agreement called for a prison term in the third-degree range, between three to five years. Defendant's plea form stated that the prosecutor would recommend five years subject to NERA and that defendant would argue for the imposition of a three-year sentence.

When the guilty plea was entered on August 18, 2010, after a searching inquiry by the judge with regard to the knowing, intelligent, and voluntary nature of the plea, defendant admitted that, while at his campsite in some woods, he gave M.P. alcoholic beverages, and, after pushing her down on a blanket, sexually penetrated her. He acknowledged that the act of doing so qualified as "physical force under the statute" and was, therefore, an act of sexual penetration committed without the victim's consent.

During the plea colloquy, when questioned by his attorney, defendant agreed that he had reviewed discovery with him and was entering a guilty plea because he was guilty, after conferring with him over a period of several months. He said that he was satisfied with his attorney's representation. The prosecutor asked defendant one question, whether M.P. had told him to stop, to which defendant answered in the affirmative.

The judge thoroughly reviewed the time of service if the maximum sentence was imposed and other details specific to the entry of the plea. Defendant stated that he understood the nature of his guilty plea and the sentencing consequences.

Pre-trial, defendant filed a notice of motion seeking to compel production of any and all of M.P.'s mental health records because, by her own report, she may have had a psychiatric diagnosis. Although a police report mentions that M.P. suffered from schizophrenia, the information was never confirmed.

During the course of oral argument on the motion for the victim's records, defense counsel referred to M.P.'s statement itself, which as he put it, spoke to the fact that she suffered from some level of psychiatric or psychological impairment. Counsel argued that access to her records was necessary to a fair disposition of the case. He requested at least in-camera review of her mental health history.

The State responded that the application was merely "a fishing expedition" that was not "relevant, legitimate or necessary." The trial judge denied the motion, concluding that no specific legitimate reason had been identified by defendant that warranted a breach of the victim's privacy interests in her medical records, assuming they existed. Defense counsel had also filed a motion to suppress evidence, which was withdrawn at the time of the entry of the guilty plea.

The Law Division judge who decided the PCR petition had available transcriptions of the victim's and defendant's recorded statements. He was also provided copies of the police reports, which, among other things, indicated that the victim was examined pursuant to New Jersey's Sexual Assault Nurse Examiner (S.A.N.E.) protocol and included the S.A.N.E. findings.

As to the event itself, defendant encountered M.P. when she was walking along the side of a road. He passed by on a bicycle and invited her into the woods, where he had set up a campsite, to drink some beers. M.P. agreed. After drinking a few beers, defendant began to kiss her, and she told him to stop. He removed the victim's clothing, pushed her onto the ground, forced himself on top of her, and penetrated her. As they struggled, M.P. tried to tell him that she was a virgin and that she wanted him to stop. After a brief struggle, she got up, and, as she moved away, he struck her on the back of the neck. She fled the campsite, but returned after travelling a short distance because she was not dressed. M.P. came back to the campsite, during which she kissed defendant as she could not find her blouse and wanted to induce him to either help her or give her a shirt so that she could leave. He gave her his shirt and she left.

When M.P. returned to her neighborhood, she went to a neighbor's house, first, and then home shortly afterward. Her father called 911 after observing that she was bleeding. When examined that night, she had abrasions on both knees, bruising on her left elbow, bruising and a red abrasion on her left breast, and an accumulation of a large amount of blood both in and outside her vagina, as well as neck pain where she had been struck by her assailant. According to the S.A.N.E. nurse, the heavy vaginal bleeding was caused by sexual trauma.

The State police found M.P.'s blouse at defendant's campsite. After being administered Miranda1 warnings, he gave a statement initially denying seeing anyone in the woods. Defendant then acknowledged going into the woods with her, but denied any physical contact. After further questioning, he continued to deny having sex with the victim, and explained the shirt found at his campsite by stating that she took it off because it was hot. He denied both that the victim said that she was hurt and that he noticed that she was bleeding.

When advised that a rape kit was being performed on the victim, defendant admitted having sex with her; however, he said he did so only momentarily because M.P. was a "freak" who began to scream. When asked about several spots of blood on the front of his pants leg, he claimed that they came from a cut, though he did not show any cut to the officers.

By order allowing the record to be supplemented, defendant has provided us with a transcription of the 911 call and the police report filed after investigators spoke with a neighbor. The items were not provided to the judge who decided the PCR application. M.P. and her father were on the phone together when the call to 911 was made. During that conversation, M.P. told the dispatcher that she went looking for someone named "Phil C." to apologize and, instead, found someone who raped and beat her. The police report indicates that when interviewed shortly after the incident, the neighbor recalled the victim being on her front porch and screaming "Gina help me, I have to apologize to Phil," but the neighbor said that she did not know that the victim was sexually assaulted.

In deciding defendant's petition, the court applied the four Slater factors on the question of withdrawal of his guilty plea: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." State v. Slater, 198 N.J. 145, 157-58 (2009). As to the first prong, in light of the physical evidence and defendant's own statements during the plea colloquy and at sentence, the judge concluded that no colorable claim of innocence was demonstrated.

The judge characterized defendant's second-prong argument as an ineffective assistance of counsel claim. He found that contention to lack merit because defendant had failed to establish both substandard representation by his attorney and prejudice to the outcome, as required by Strickland.2 The judge noted that defendant did not support his claims of ineffective assistance with the names of witnesses, for example, or assertions as to testimony they would have offered that would have been helpful to his case. He observed that the record refuted defendant's claim that his attorney had promised him a sentence of three years.

The court also determined that defendant's guilty plea was entered into freely, knowingly, and voluntarily and was "very beneficial to" defendant. Lastly, the State would be prejudiced if the plea were vacated. Given the lapse in time between the event and defendant's application, there was a possibility of harm to M.P. were she to be compelled to testify. Since no prima facie case was established as to effective assistance, the court did not require an evidentiary hearing. Because defendant did not meet the Slater requirements, his plea would not be vacated.

On appeal, defendant raises the following points:

POINT ONE

THE PCR COURT ERRED BECAUSE IT DID NOT ADEQUATELY EXPLAIN ITS REASONS FOR DENYING THE DEFENDANT'S INEFFECTIVENESS CLAIM WHERE IT DID NOT SET FORTH THE APPROPRIATE BURDEN OF PROOF IT USED TO EVALUATE THE DEFENDANT'S ASSERTIONS.

POINT TWO

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE WAS INADEQUATELY PREPARED TO PROPERLY PRESENT A MOTION REQUESTING M.P.'S MENTAL HEALTH RECORDS.

POINT THREE

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE HE DID NOT PERFECT THE DEFENDANT'S DIRECT APPEAL IN SPITE OF KNOWLEDGE THAT THE DEFENDANT WAS INTERESTED IN APPEALING.

POINT FOUR

THE PCR COURT ERRED WHERE IT DID NOT CONDUCT AN EVIDENTIARY HEARING IN SPITE OF THE FAILURE OF THE DEFENDANT'S TRIAL ATTORNEY TO EXPLAIN WHY HE DID NOT USE SEVERAL MATERIAL FACTS WHICH APPEARED INCONSISTENT WITH M.P.'S ALLEGATION THAT SHE WAS RAPED AND DESPITE THE LACK OF ANY FORENSIC TEST RESULTS WHICH MAY HAVE ASSISTED THE STATE.

POINT FIVE

THE DEFENDANT SHOULD HAVE BEEN PERMITTED TO WITHDRAW HIS GUILTY PLEA WHERE HE DID NOT FULLY UNDERSTAND THE REAL-TIME CONSEQUENCES HE FACED.

By pro se letter, defendant expresses his disagreement with the PCR judge's decision. We consider his points to be so lacking in merit as to not warrant discussion in a written opinion. R. 2:11-3(e)(2).

As to defendant's first point on appeal, it is clear that different rights are implicated by an application to withdraw a guilty plea and a petition for PCR. State v. O'Donnell, 435 N.J. Super. 351, 368 (App. Div. 2014). In order for a defendant to be granted leave to withdraw a guilty plea, "[n]o one factor is dispositive, nor must a movant satisfy all four." Id. at 369. Such applications should be granted where denial would result in manifest injustice. Id. at 368.

A petition for PCR, however, requires a defendant to merely establish by the preponderance of credible evidence entitlement pursuant to the Strickland standard. State v. Preciose, 129 N.J. 451, 459 (1992). And, as we have recently said, such applications must be viewed independently. See O'Donnell, supra, 435 N.J. Super. at 371. In any event, even if the judge's analysis for denying both applications may have conflated two generally separate doctrines, the result was correct.

With regard to defendant's application to withdraw his guilty plea, he did not establish a colorable claim of innocence. That is the inescapable conclusion to be drawn from consideration of his responses during the plea colloquy, statements made at sentencing, and, most significantly, the circumstances surrounding the event itself. The sexual assault was promptly reported by M.P., who, at the time that she was examined by a S.A.N.E. nurse, was bleeding profusely from her vagina and was bruised and shaken. Even if, as defendant points out, she did not explain to her neighbor that she had been sexually assaulted, and even if she appeared to be confused during the 911 call, as she referred to her wish to apologize to "Phil," the proofs are strong. Defendant's recorded statement further corroborated M.P.'s assertion that the sexual encounter involved force.

After all, defendant initially denied even seeing the victim on the night in question, acknowledging the sexual encounter only after being told DNA evidence would be taken from her. That M.P. was bleeding and that he had bloodstains on his pants further weighs against him. Lacking a colorable claim of innocence and given the prejudice that would inure to the State both from the mere lapse in time and the nature of the event, we conclude the judge correctly decided that defendant failed to meet the Slater test for withdrawal of his plea. Overall, denial of defendant's motion to withdraw his plea would not result in a manifest injustice.

Turning to defendant's ineffective assistance of counsel claim, it seems clear to us defendant's attorney represented him consistent with his constitutional right to counsel. The motion for the victim's psychiatric history was properly denied as it was nothing more than a fishing expedition. The denial of the motion reflected the lack of merit of the application, not the lack of skill of the attorney.

The attorney filed a second pre-trial motion, which may have had the coincidental effect of encouraging the State to offer defendant a very favorable plea. Counsel was able to negotiate a sentence in a range one degree lower than the offense and permitted him to argue for the lowest term possible within that third-degree range. Thus the representation afforded to defendant appears to have been vigorous and effective, as, ultimately, in the face of his own statements as well as the available physical evidence, he obtained a favorable sentence recommendation.

Insofar as defendant's third point, that no direct appeal was filed, this argument was not raised during the PCR argument. The record only indicates that defendant reviewed the appeal rights form with his attorney, having previously signed it, and that it was given to the clerk of the court after sentencing. Nothing in the record corroborates the assertion that defendant requested his attorney file a direct appeal. Regardless of the propriety of considering this point on appeal, we consider it in any event to be so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Defendant next argues that the judge who decided the PCR application erred by not conducting an evidentiary hearing. Defendant did not establish a prima facie case of ineffective assistance of counsel. See State v. Russo, 333 N.J. Super. 119, 139 (App. Div. 2000). We therefore also consider this point to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Lastly, defendant claims that his guilty plea should be vacated because he was misinformed about his potential sentencing exposure. In particular, he asserts that his attorney erred in completing one of the supplemental plea forms. By way of context, the judge who took the plea asked defendant if he had any questions about the form and if he understood that, under NERA, he would have to serve eighty-five percent of his sentence before being eligible for parole. Defendant said that he did. The judge did err in adding that defendant would be subject to reincarceration if he violated his three-year term of parole supervision "for an additional [eighty-five] percent period if you violate parole." Obviously, that three-year term of parole supervision, if imposed, would be served in full. But, that error is of minimal consequence and is not a sufficient basis to justify the withdrawal of defendant's guilty plea in light of our analysis under Slater. We reiterate that a crucial factor to be weighed in the equation is a colorable claim of innocence entirely lacking in this case. Hence this point, too, lacks merit.

Accordingly, we agree with the ultimate conclusions reached by the Law Division judge. Defendant's assertions fall short of meeting either the Slater or Strickland standards.

Affirmed.

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

2 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (holding that in order to establish ineffective assistance of counsel, a defendant must demonstrate substandard representation by counsel and prejudice to the outcome as a result); State v. DiFrisco, 137 N.J. 434, 457 (1994) (stating that in the context of post-conviction relief petitions, when a defendant seeks to establish ineffective assistance of counsel during the course of the entry of his guilty plea that resulted in the judgment of conviction being challenged, a defendant must prove both substandard representation by plea counsel and that, but for the inadequate representation, he would have gone to trial).