STATE OF NEW JERSEY v. ROBERT J. HARTOBEY

NOT FOR PUBLICATION WITHOUT THE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.

ROBERT J. HARTOBEY, a/k/a

ROBERT JOSEPH HARTOBEY,

Defendant-Appellant.

________________________________________________________________

November 20, 2014

Submitted May 29, 2014 Decided

Before Judges Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-06-1085.

Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the briefs).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Special Deputy Attorney General/ Special Acting Assistant Prosecutor, of counsel; Susan L. Berkow, Special Deputy Attorney General/Special Acting Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

MAVEN, J.A.D.

Defendant Robert J. Hartobey appeals from the December 16, 2012 order denying his petition for post-conviction relief (PCR), seeking to set aside his conviction and vacate his guilty plea. We affirm.

I.

On May 14, 2006, defendant sexually assaulted the five-year-old daughter of his former girlfriend, M.L. According to the child, he awakened her during the night and put his penis in her mouth. Later that day, the child, N.L., told her father about the incident, whereupon, he and the child's mother, M.L., reported the incident to the police.

The Middlesex County Prosecutor's Office interviewed the child that same day; however, she refused to disclose the details of the incident. The child also remained silent as to the incident during a psychological evaluation on May 16, 2006. The child began psychological counseling on June 6, 2006, and ultimately revealed the circumstances of the assault to the psychologist on February 22, 2007. The prosecutor's office conducted another interview, at which time the child gave a statement.

Police arrested defendant, a corrections officer, on May 8, 2007, and charged him with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Defendant faced a possible thirty-year term of imprisonment if convicted on all counts.

Defendant retained private counsel with the assistance of his family. The court conducted a hearing, pursuant to N.J.R.E. 803(c)(27) and State v. Michaels, 136 N.J. 299 (1994), to determine the reliability and trustworthiness of the child victim's statements. Defendant maintained that M.L. was an "unstable" and "vicious and vindictive person," who had encouraged her daughter to fabricate the charges because defendant was dating another woman. The judge found the child's statements reliable and trustworthy, and allowed the evidence to be presented to the trial court against defendant.

Several months later, after extensive negotiations with the State, defendant entered into a plea agreement, in which he agreed to plead guilty to first-degree aggravated sexual assault. In exchange, the State agreed to dismiss all other charges and recommend that defendant receive an eight-year term of incarceration, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Other conditions of the sentence would include no contact with the victim, permanent forfeiture of public office, Megan's Law conditions, and parole supervision for life.

At the plea hearing, defendant testified he had reviewed all of the plea forms with his attorney, understood all the terms of the plea agreement, including the dismissal of the remaining counts of the indictment and the recommended eight-year sentence. Defendant testified he was not coerced into entering the guilty plea. He acknowledged that he had a right to proceed to trial and by entering a plea, he was waiving that right and the right to have witnesses testify on his behalf. For the factual basis of the plea, defendant admitted he placed his penis in the child's mouth for his own sexual gratification.

The judge engaged defendant in an extensive colloquy regarding the voluntariness of the guilty plea, and his ability to retract the plea in the future. The judge questioned, in part

THE COURT: Had enough time to speak with your attorney?

[DEFENDANT]: Yes, I did.

THE COURT: He's answered all your questions? He's done a pretty good job so far?

[THE DEFENDANT]: Yes.

THE COURT: You understand, if I accept your negotiated plea, you cannot take it back? In fact, it is permanent. At the time of sentencing, I will impose the sentence recommended. I will do so. You understand that?

[DEFENDANT]: Yes.

THE COURT: If, at the time of sentence here, the [j]udge makes a decision, whoever the [s]entencing [j]udge would be, that they cannot impose the sentence, at that time, you can take back your plea. If, for example, I think that an eight-year sentence is insufficient, given the nature and circumstances of the offense, you'll be able to take your plea back. Everything you have said today cannot be used in the course of the trial. Do you understand that?

[DEFENDANT]: Yes.

THE COURT: But again, if I accept the plea, that's it. You cannot take it back. It is, in fact, permanent. Do you understand that?

[DEFENDANT]: Yes.

THE COURT: There is a form [] that you filled out, the plea form. You have gone over it with your lawyer. I suspect that you have a copy of that in your hand; is that correct?

[DEFENDANT]: Yes, sir.

THE COURT: Did you go over each and every question with your attorney?

[DEFENDANT]: Yes, I did.

THE COURT: Did you understand each and every question?

[DEFENDANT]: Yes, I did.

. . . .

THE COURT: Are the initials on the bottom of the pages, and the signatures that appears to be yours, are they yours?

[DEFENDANT]: Yes, sir.

THE COURT: Did you put them there after reviewing each question and talking to your lawyer about each question and each answer?

[DEFENDANT]: Yes, sir.

. . . .

THE COURT: Okay. Anybody force you or threaten you, in any way?

[DEFENDANT]: No, sir.

. . . .

THE COURT: We have a plea, with a factual basis, with counsel with whom the gentleman is satisfied.

The judge accepted defendant's factual basis for the offense, that he placed his penis in the child's mouth for his own sexual gratification, and found defendant's guilty plea was knowingly and intelligently made.

In the presentence evaluation report prepared at the Adult Diagnostic and Treatment Center, defendant acknowledged he sexually assaulted the child for sexual gratification and that he had no explanation except that "he wanted to try it." In a letter defendant sent to the judge weeks before the sentencing hearing, he stated "words cannot begin to explain how sorry I am for committing that offence (sic) on an innocent child, and I accept any punishment that the court places on me on sentencing day." In that same letter defendant raised other issues but he did not complain about his attorney or request to withdraw his guilty plea. At sentencing on November 20, 2010, defendant declined to make a statement and did move to withdraw the guilty plea. The judge sentenced defendant in accordance with the plea agreement. Defendant did not file a direct appeal.

On September 20, 2011, defendant filed a timely pro se PCR petition, supplemented by a brief submitted by his assigned PCR attorney on October 3, 2012. Defendant argued he was entitled to withdraw his guilty plea under State v. Slater, 198 N.J. 145 (2009), and to PCR relief under Strickland1 because his trial attorney was ineffective for failing to (1) file an interlocutory appeal following the Michaels hearing, as he had requested, (2) develop a defense strategy, and (3) investigate potential defense witnesses who would have supported his claim that M.L.'s volatile and erratic behavior towards him motivated her to induce the child to lie. Defendant provided certifications from his mother, brother and friends in support of this claim. He also argued his guilty plea was coerced by his fear of going to trial with counsel in whom he had no confidence, and because his counsel threatened to withdraw his representation of defendant over a fee dispute. The State opposed relief, filing a brief that included various exhibits, including defendant's self-incriminating letters written to the court, as well as the court's decision to admit the child victim's statements following the Michaels hearing.

Following oral argument, Judge Alan A. Rockoff rendered an oral opinion denying PCR without an evidentiary hearing. The judge found defendant had failed to demonstrate a prima facie case of ineffective assistance of counsel under Strickland. Judge Rockoff determined defendant understood the terms of the plea agreement and the plea was entered without coercion. He also noted that defendant expressed satisfaction with his plea counsel's performance and affirmed that all of his answers in the plea form were truthful and honest.

The judge deemed defendant's bald assertions of counsel ineffectiveness "too vague, conclusory, and speculative," and found the certifications of the potential defense witnesses neither corroborated defendant's claim that the child's mother influenced the child to lie, nor supported his claim that a fee dispute compelled him to plead guilty. The judge balanced the claims of attorney error against defendant's multiple confessions of guilt and remorse for sexually assaulting the child, and determined that he "struck a bargain that benefitted him greatly. Instead of [thirty] years, he pled to a negotiated sentence of eight years." Moreover, the judge found that "[R]ather than go through trial, and putting the child, N.L., through this retraumatization, the Prosecutor granted him this benefit of less incarceration." The judge reasoned

The strategy that was used to benefit [defendant] cannot be second guessed by this [c]ourt in making the decision to accept eight years as opposed to [thirty] years, and not go to trial and take this plea, because he was in fact guilty of this offense[, w]hich he further acknowledged through a psychologist and through letters to his family and friends.

Given these various considerations, the judge concluded defendant failed to satisfy the requirements for PCR.

On appeal, defendant raises the following points

I. THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.

A. Defendant Has Asserted a Colorable Claim of Innocence.

B. The Nature and Strength of Defendant's Reasons for Withdrawal are Powerful.

C. A Plea Bargain Exists in This Case; However, the Plea Offer Was Not Accepted Knowingly and Voluntarily.

D. Withdrawal of the Plea Would Not Result in Unfair Prejudice to the State or Unfair Advantage to the Defendant.

In his supplemental pro se brief, defendant argues

THE LOWER COURT ERRED IN FINDING THAT DEFENDANT'S CLAIMS DID NOT WARRANT AN EVIDENTIARY HEARING. THE LOWER COURT ORDER MUST THEREFORE BE REVERSED AND THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING.

We considered defendant's arguments in light of the record, briefs submitted, and governing legal principles, and find them lacking in merit.

II.

Defendant's sole contention on appeal is his entitlement to an evidentiary hearing based a prima facie showing of ineffective assistance of counsel and on his motion to withdraw his guilty plea. Defendant relies on the same facts and evidence for both claims.

A.

"'Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus.'" State v. Goodwin, 173 N.J. 583, 593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459, (1992)).

It is well-settled that to set aside a conviction based upon a claim of ineffective assistance of counsel, a petitioner must prove, by a preponderance of the evidence, that (1) counsel performed deficiently, and made errors so serious that he or she was not functioning as counsel guaranteed by the Sixth Amendment; and (2) defendant suffered prejudice as a result.

[State v. L.A., 433 N.J. Super. 1, 13 (App. Div. 2013) (citations omitted).]

Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Ibid. In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690.

A defendant cannot rely on simple allegations of inadequate performance, such as failure to interview witnesses. Fritz, supra, 105 N.J. at 64-65. Rather, a defendant must establish the right to PCR by a preponderance of the credible evidence. Preciose, supra, 129 N.J. at 459. In this regard, a defendant must articulate "specific facts" that "provide the court with an adequate basis on which to rest its decision" that the defendant established a prima facie case of ineffective assistance of counsel. State v. Mitchell, 126 N.J. 565, 579 (1992). Bald assertions, "unaccompanied by evidential support, are insufficient." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

We concur with the PCR judge's findings and conclusions that defendant has not met his burden to satisfy the Strickland analysis. Moreover, we are persuaded defendant's attorney represented him consistent with his constitutional right to counsel. The PCR court found defendant's concerns that his attorney had not prepared a defense strategy or interviewed potential witnesses for trial, were belied by counsel's active participation in all stages of the case. The attorney represented defendant throughout the extended Michaels hearing and defendant does not challenge the quality of counsel's representation in that prolonged proceeding. The denial of the motion reflected the lack of merit of the application, not the lack of skill of the attorney. During the plea negotiations with the State, the attorney negotiated a beneficial plea agreement for defendant, who, as a corrections officer, had grave concerns about being imprisoned. As noted, defendant received a sentence in a range one degree lower than the first-degree offense, specifically an eight-year term with conditions in lieu of twenty years in state prison. Thus, the representation afforded to defendant, appears to have been vigorous and effective, as, ultimately, in the face of his own statements, he obtained a favorable sentence recommendation. The court also rejected defendant's assertion that he was "terrified" to go to trial with his attorney following a disagreement over fees and counsel's alleged threats to withdraw his representation over a fee dispute.

Based on the foregoing, we conclude plaintiff failed to demonstrate that his counsel's performed deficiently, thus, the first prong of the Strickland test was not satisfied. As for the second prong, defendant has not demonstrated that but for counsel's asserted unprofessional errors, the result of the proceeding would have been different. Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. As noted, defendant claims his counsel failed to investigate his witnesses who would attest to M.L.'s erratic conduct. However, even if these statements were verified, there is no evidence that M.L. influenced the child to fabricate a tale of a sexual assault. On the contrary, evidence reveals that the child disclosed the assault, and identified defendant as the perpetrator, to her father without any involvement by M.L. Moreover, the child's testimony was tested in a Michaels hearing, and determined to be trustworthy and admissible against defendant. Thus, even if defendant's witnesses testified their statements would not erode the State's proofs of guilt.

In light of the foregoing, we reject defendant's contention the PCR judge erred in denying his request for an evidentiary hearing. An evidentiary hearing should be held only when a PCR petition presents material issues of disputed fact that cannot be resolved by reference to the existing record. State v. Pyatt, 316 N.J. Super. 46, 51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999). From our review of the record, defendant failed to present a prima facie case of ineffective assistance of trial counsel. Accordingly, the PCR court correctly denied defendant's request for an evidentiary hearing. See Preciose, supra, 129 N.J. at 462-63.

B.

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, he must satisfy the four Slater factors, (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. See Slater, supra, 198 N.J. at 157-58. "No one factor is dispositive, nor must a movant satisfy all four." O'Donnell, supra, 435 N.J. Super. at 369. Such applications should be granted where denial would result in manifest injustice. Id. at 368.

In all plea withdrawal cases, "the burden rests on the defendant, in the first instance, to present some plausible basis for his request, and his good faith in asserting a defense on the merits." Slater, supra, 198 N.J. at 156 (quoting State v. Smullen, 118 N.J. 408, 416 (1990)). "Generally, representations made by a defendant at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitute a 'formidable barrier' which defendant must overcome before he will be allowed to withdraw his plea." State v. Simon, 161 N.J. 416, 444 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 141 (1977)).

With regard to defendant's application, he did not establish the first two factors, namely a colorable claim of innocence or a strong reason to withdraw. That defendant made no claim of innocence is the inescapable conclusion to be drawn from in consideration of his multiple admissions of guilt as demonstrated by the record of the plea colloquy, statements made in the Avenel evaluation report, and most significantly, the letter written to the court and the circumstances surrounding the sexual assault. The certifications submitted by defendant's friends and family members may support defendant's claim that M.L. was erratic and vindictive but they are not indicative of defendant's innocence.

On the third factor, defendant's plea was entered as a result of extensive negotiations between the State and defendant's counsel. The PCR judge considered the mutually beneficial reasons to resolve the case by way of a plea agreement, namely eliminating the need for the child's testimony and, thereby, reducing the trauma to her, and reducing defendant's sentence exposure in light of his employment as a corrections officer. The judge relied on defendant's affirmations at the plea hearing, which it held belied his claim he was coerced and terrorized to plead guilty. We recognize that defendant's representations "constitute a 'formidable barrier' which defendant must overcome before he will be allowed to withdraw his plea." Simon, supra, 161 N.J. at 444. Here, the record of the plea hearing demonstrates both defense counsel and the court conducted the searching inquiry required to assure that defendant had knowingly and voluntarily entered the guilty plea and waived his right to trial.

Under the fourth prong, whether withdrawal would "result in unfair prejudice to the State or unfair advantage to the accused[,]" "[t]he critical inquiry . . . is whether the passage of time has hampered the State's ability to present important evidence." Slater, supra, 98 N.J. at 161. Within this inquiry the Court mentioned several factors that may lead to prejudice, such as, "the loss of or inability to locate a needed witness, a witness's faded memory on a contested point, or the loss or deterioration of key evidence." Ibid. Here, defendant argues the State is not prejudiced because the child's statement, as well as the other witnesses remain available for use by the prosecution. Defendant further contends "the victim is now older and more mature and will likely be able to testify concerning the salient events." Defendant, however, overlooks the primary reason for the State's beneficial plea offer, and that was to prevent traumatization of the child by requiring her to testify at trial. Even with her maturation, requiring the victim to testify would serve only to reopen the emotional wounds inflicted by defendant during this assault.

Lacking a colorable claim of innocence and given the prejudice that would inure to the State both from the lapse in time and the nature of the event, we conclude 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.

Affirmed.

1 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). State v. Fritz, 105 N.J. 42, 67 (1987) (adopting the Strickland standard in New Jersey).