STATE OF NEW JERSEY v. NATHANIEL KRIEG

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NOT FOR PUBLICATION WITHOUT THE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.

NATHANIEL KRIEG,

Defendant-Appellant.

________________________________________________________________

May 13, 2014

Submitted April 29, 2014 Decided

Before Judges Fisher and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-10-00934.

Joseph E. Krakora, Public Defender, attorney for appellant (Jennifer B. Swift, Designated Counsel, on the brief).

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (G. Harrison Walters, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Nathaniel Krieg appeals from the September 14, 2012 decision denying his application for post-conviction relief (PCR) without an evidentiary hearing.1 We affirm substantially for the reasons set forth in the PCR judge's written decision.

After a Miranda2 hearing was held at which he unsuccessfully sought to suppress his admissions, defendant pleaded guilty to one of fifteen counts in the indictment, first-degree aggravated sexual assault on a child between the ages of thirteen and sixteen, N.J.S.A. 2C:14-2(a)(2)(c). Defendant sexually assaulted a minor child from the time she was in fifth grade until she was in ninth grade, when the victim disclosed the abuse to a school guidance counselor. Defendant had been convicted ten years before of second-degree sexual assault for multiple acts committed against a thirteen-year-old girl. In a third incident involving sexual involvement with a child, he was required to pay child support to a mother who gave birth to his child when she was fourteen years old. At sentencing for the instant offense, the court determined him to be a compulsive and repetitive sexual offender based on an evaluation by the Adult Diagnostic and Treatment Center.

He was sentenced pursuant to the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10, to a twenty-year term of incarceration with an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant agreed not to appeal as part of his plea agreement and did not do so.

On appeal of the denial of his PCR petition, defendant raises the following issues:

POINT I: THE JUDGE BELOW ERRED IN DENYING AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD ULTIMATELY SUCCEED ON THE MERITS REGARDING COUNSEL'S FAILURE TO PRESENT AN ARGUMENT AGAINST AGGRAVATING FACTORS (PARTIALLY RAISED BELOW).

POINT II: PCR COUNSEL NEGLECTED TO ORDER THE TRANSCRIPT FOR THE MOTION TO SUPPRESS HEARING; FAILURE TO DO SO WARRANTS REMAND (NOT RAISED BELOW).

POINT III: DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS CLAIMS.

To prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, l 04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l 05 N.J. 42, 58 (l987).

Although vigorous argument on behalf of a lesser sentence is part of a proper defense, when defense counsel did not agree to remain silent as part of the plea agreement, relief should not be granted unless defense counsel withheld information that might be helpful in assessing the sentencing factors in defendant's favor. See State v. Friedman, 209 N.J. 102, 121-22 (2012) (upholding an agreement that defense counsel would not argue for concurrent sentences because there was no indication that it had any bearing on the sentencing court's ability to weigh the sentencing factors). The judge here found statutory aggravating factors one, the nature of the offense; two, the seriousness of the harm inflicted on a victim; three, the risk that defendant will commit another offense; six, defendant's prior criminal record; and nine, the need to deter defendant and others. N.J.S.A. 2C:44-1(a)(1),(2),(3),(6) and (9). The judge weighed these aggravating factors against the lone mitigating factor, the willingness of defendant to cooperate with law enforcement. N.J.S.A.2C:44-1(b)(12). Afterweighing the factors, the judge imposed the maximum sentence under the plea agreement. The judgefound theappropriate aggravating and mitigating factors inlight ofthe record. Defense counsel'ssilence atsentencing did not impact the judge's ability to weigh those factors fairly.

Appellate PCR counsel also criticizes PCR counsel for not ordering a transcript of the Miranda hearing. As appellate PCR counsel did not order the transcript either,we have no reason to believethat trialcounsel was ineffective at the Miranda hearing.

Because defendant's claim of ineffective assistance rests upon the contention that counsel failed to take action that would have been futile, he is unable to show that counsel made the requisite egregious error or that he suffered any prejudice. See State v. Roper, 378 N.J. Super. 236, 237-38 (App. Div.), certif. denied, 185 N.J. 265 (2005) (explaining that a PCR claim "has lost one of its legs and falls" when the defendant is unable to establish prejudice).

Having failed to present prima facie evidence of ineffectiveassistance ofcounsel, defendantwas notentitled toan evidentiary hearing. State v. Preciose, 129 N.J. 451, 462-63 (1992).

Affirmed.

1 The judge's written decision bears the language "so ordered" on the last of eleven pages. A formal signed order in addition to the opinion would have been preferable. R. 3:1-4; R. 4:42-1.

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