STATE OF NEW JERSEY v. KAREN E. GOLDING

NOT FOR PUBLICATION WITHOUT THE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.

KAREN E. GOLDING,

Defendant-Appellant.

___________________________

December 11, 2015

Submitted September 21, 2015 Decided

Before Judges Messano and Simonelli.

On appeal from the Superior Courtof New Jersey, LawDivision, MorrisCounty, Indictment No. 06-05-0652.

Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief).

Francis A. Koch, Sussex County Prosecutor, attorney for respondent(Jerome P. Neidhardt, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Karen Golding appeals from the January 16, 2014 Law Division order, which denied her motion for post-conviction relief (PCR) without an evidentiary hearing. For the following reasons, we affirm.

We derive the following facts from the record. Following a lengthy investigation, defendant was charged with third-degree burglary, N.J.S.A. 2C:18-2, and fourth-degree stalking, N.J.S.A. 2C:12-10(b). On March 16, 2006, the court ordered defendant to have no contact with the victims, T.K., P.R., K.C. and J.C.1 On May 4, 2006, the court admitted defendant into the Pre-Trial Intervention Program (PTI) for two years and ordered her to comply with the no-contact order and other conditions.

On March 28, 2007, defendant was charged with four counts of harassment of four members of J.C.'s family. Pursuant to a November 16, 2007 consent order, defendant entered a conditional guilty plea to the stalking charge in exchange for the State's agreement to extend PTI for one year, include the four new harassment charges in the consent order, and dismiss the burglary charge with prejudice. The consent order included several conditions, including no contact with P.R. and her children, K.C. and her children, J.C. and his mother, and J.C.'s four family members whom defendant allegedly harassed. In providing a factual basis for the plea, defendant admitted that she engaged in a course of conduct directed at K.C. that would cause K.C. to reasonably believe that someone was threatening her with bodily harm.

In January 2009, the Morris County Probation Office notified defendant that she failed to complete the conditions ordered by the court and a PTI termination hearing would be scheduled. At the five-day hearing, the State presented evidence of defendant's direct and indirect harassment of J.C. and his family members. In a May 11, 2009 order, the court terminated defendant from PTI, finding that her continued violation of the no-contact order and her resistance to rehabilitation services showed she was not fit to continue with the diversionary program.

Defendant filed a motion to withdraw her guilty plea. Following a hearing, in a December 23, 2009 order, the court denied the motion, finding that defendant had entered into the guilty plea voluntarily after a full explanation of the charges and had not made a colorable claims of innocence.

On February 23, 2010, the court sentenced defendant to a two-year probationary term conditioned on ninety days in the Sheriff's Labor Assistance Program. The court granted defendant's motion for a stay and also ordered the State to provide copies of the hard drives of the computers seized from defendant, which defendant sought prior to the PTI termination hearing and which she asserted would have substantiated her claim that she and J.C. were involved in a sexual relationship. On March 9, 2010, the court denied defendant's motion to conduct a forensic examination of her computers and return them to her, but again ordered the State to provide a copy of the hard drives.

Defendant filed an appeal, arguing, in part, that she was entitled to withdraw her guilty plea based on the State's refusal to grant her access to her computers during the plea hearing and PTI termination proceedings. Alternatively, she sought a remand for a new PTI termination hearing to afford her the opportunity to introduce evidence subsequently recovered from her computers. Defendant argued that had she been granted access to her computers prior to her plea or during the PTI termination hearing, she would have been able to show that her stalking behavior arose from an abusive relationship with J.C., and that her conduct was not malicious, but an unfortunate reflexive reaction to difficult circumstances.

We affirmed and our Supreme Court denied certification. State v. Golding, No. A-5116-09 (App. Div. July 20, 2012) (slip op. at 12), certif. denied, 213 N.J. 45 (2013). In rejecting defendant's arguments, we found that

in 2007 she was facing possible PTI discharge as well as the two 2006 criminal charges and the four 2007 harassment charges. As a result of a very favorable consent agreement, defendant was allowed to remain in PTI, have the additional [harassment] charges added to the program and have the more serious 2006 [burglary] charge dismissed with prejudice. There is no indication in the record that defendant did not enter into this favorable arrangement voluntarily.

[Id. at 9.]

We also found that in providing a factual basis for her guilty plea to the stalking charge, defendant admitted to putting a victim other than J.C. in fear of injury by phone and mail in violation of N.J.S.A. 2C:12-10. Id. at 12. We concluded that "[b]eing in an abusive relationship does not provide a defense to criminal behavior toward a third-party. In addition, during sentencing the State did not deny the existence of the relationship and defendant was allowed to argue that the abusive relationship with [J.C.] [w]as a reason for mitigation." Id. at 12-13.

On April 29, 2013, defendant filed a PCR petition, arguing that trial counsel rendered ineffective assistance by failing to conduct a reasonable investigation into the State's case, including securing copies of her computer hard drives. She also argued that her attorney coerced her into entering a conditional guilty plea.2

In a January 10, 2014 oral opinion, the court made detailed factual findings and denied the petition without an evidentiary hearing. The court found that because defendant's computer hard drives did not contain exculpatory evidence of her guilt to stalking K.C., she could not establish that the outcome would have been different, especially in light of her colloquy with the court at the plea hearing. The court also found that defendant entered the guilty plea freely, knowingly and voluntarily, defendant was not threatened, pressured or coerced into pleading guilty, and a decision to reject the plea agreement would not have been rational under the circumstances defendant faced at the time of the plea.

The court determined that defendant failed to establish a prima facie case of ineffective assistance of counsel. To the contrary, the court concluded that trial counsel's performance was well within the range of professionally-competent assistance, defendant had adequate assistance of counsel throughout this matter, and she was "aggressively, actively and appropriately represented." This appeal followed.

On appeal, defendant contends that the court erred in denying her an evidentiary hearing to fully develop her ineffective assistance of counsel claims. We disagree.

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits only if the defendant has presented a prima facie claim of ineffective assistance. State v. Porter, 216 N.J. 343, 354 (2013). To establish a prima facie claim of ineffective assistance of counsel, the defendant must show that: (1) counsel's performance was deficient; and (2) the deficiency prejudiced the defense. State v. Nash, 212 N.J. 518, 542 (2013) (citations omitted). With respect to a guilty plea, our Supreme Court has explained that

[t]o set aside a guilty plea based on ineffective assistance of counsel, a defendant must show that (i) counsel's assistance was not within the range of competence demanded of attorneys in criminal cases; and (ii) that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.

[State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (alterations in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)).]

We have considered defendant's contention in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed in the court's comprehensive and well-reasoned January 10, 2014 oral opinion. We are convinced that the facts did not establish a claim of ineffective assistance of counsel.

Affirmed.

1 We use initials to protect the identities of the victims.

2 Defendant raised other arguments that are not pertinent to this appeal.