STATE OF NEW JERSEY v. MAHESHKUM M. PATEL

NOT FOR PUBLICATION WITHOUT THE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.

MAHESHKUM M. PATEL, a/k/a

MAHESHKUMAR PATEL, MAHESHKUM

MANUBHAI PATEL, MAHESHKUMAR

MANUBHAI PATEL, MAHESHKUM PATEL,

MAHESH KUMAR, MANUBHAI PATEL,

MAHESHKUMAR M. PATEL, M.M. PATEL,

and MAHESHKUHAR MANUBHAI-PATEL,

Defendant-Appellant.

_____________________________

September 23, 2016

Submitted September 7, 2016 Decided

Before Judges Alvarez and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-09-2199.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Maheshkum Patel appeals from the December 12, 2014 Law Division order, which denied his motion for post-conviction relief (PCR) without an evidentiary hearing. For the following reasons, we affirm.

A grand jury indicted defendant for first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count one); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) (count three); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count four); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count five). With the assistance of an interpreter, defendant pled guilty to counts three and four in exchange for the State's offer of an eight-year term of imprisonment on count three with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent four-year term of imprisonment on count four.

At the plea hearing, plea counsel represented that he and an interpreter met with defendant at the county jail, they reviewed all the plea forms, and the interpreter translated the plea forms in defendant's language. Defendant then gave a factual basis for his plea: he worked in a store in Bloomfield; he physically forced a female employee to have sexual intercourse with him against her will; he knew what he was doing was wrong; and he prevented the victim from leaving the store when she tried to escape.

Defendant acknowledged that by pleading guilty he was waiving his right to go to trial and cross-examine the State's witnesses. Defendant admitted that an interpreter read and translated the plea forms to him in his language; plea counsel and the interpreter reviewed the questions and answers with him; he understood the plea forms; he answered each question truthfully; and he initialed each page of the plea forms. The interpreter testified that he translated the plea forms to defendant in defendant's language.

Defendant testified that he understood he was entering a plea of guilty to second-degree sexual assault and third-degree criminal restraint. He acknowledged that he faced a maximum sentence of ten years for sexual assault, a maximum sentence of five years for criminal restraint, and that the sexual assault sentence was subject to an eighty-five percent period of parole ineligibility. Defendant also acknowledged that he: was pleading guilty to a sexual offense; would be subject to a psychological examination to determine if his conduct was repetitive and compulsive; would be subject to treatment if his conduct was found to be repetitive and compulsive; his treatment period could be more than the sentence imposed; and he was subject to Megan's Law reporting requirements and community supervision for life.

Defendant testified that he was not a citizen of the United States and understood he will be deported after the conclusion of his sentence. He also testified that: no one forced him to plead guilty; he pled guilty of his own free will; and he pled guilty because he was in fact guilty. When the judge asked him to explain what he was doing, defendant responded, "I know what kind of procedure is going on here. . . . It's a plea bargain offered and accepted." Lastly, defendant testified that he had sufficient time to consult with plea counsel, was satisfied with counsel's services, and had no questions of counsel or the court.

Prior to sentencing, defendant filed a motion to withdraw his guilty plea. Defendant argued that his plea lacked a factual basis because discovery revealed that the victim stated to a nurse that she was unsure if he had penetrated her, and he was unaware of this statement until he received discovery after the plea hearing. Defendant argued that plea counsel rendered ineffective assistance by failing to explain anything to him and provide him with a copy of the discovery prior to the plea hearing. Defendant also asserted that he was not provided an interpreter outside of court and did not understand the proceedings.

The same judge who presided over defendant's plea hearing denied the motion. The judge found that defendant was provided an interpreter at every court proceeding and defendant admitted he had nonconsensual sex with the victim. Addressing the first Slater1 factor, the judge determined that the victim's uncertainty as to whether he penetrated her did not establish a colorable claim of innocence. As for the second factor, the judge found that defendant had no strong reason for withdrawal of his guilty plea, given the DNA evidence found on the victim's vaginal swab, which linked defendant to her. Regarding the third and fourth factors, the judge found that defendant faced a fifty-year sentence if convicted of all charges, he received a favorable plea bargain, and there was unfair prejudice to the State.

In accordance with the plea agreement, the judge imposed an eight-year term of imprisonment on count three subject to NERA, and a concurrent four-year term of imprisonment on count four. Defendant appealed his sentence, arguing that plea counsel did not review the discovery with him prior to his guilty plea and when he reviewed the discovery prior to sentencing, he saw that the victim was unsure whether he had sexually penetrated her. We heard the appeal on our Excessive Sentencing Oral Argument calendar, and affirmed. State v. Patel, No. A-2045-12 (App. Div. Apr. 10, 2013).

Defendant did not file a petition for certification with our Supreme Court. Instead, he filed a PCR petition arguing, in relevant part, that he was entitled to withdraw his guilty plea based on the ineffective assistance of plea counsel who failed to adequately investigate the case and provide him with a complete copy of the discovery prior to the plea hearing. Defendant also argued for the first time that: the interpreter translated in a language different from defendant's language; he did not understand the interpreter; and he would not have pled guilty but for the interpreter's misinterpretations.

A different judge denied the motion in an oral opinion. The PCR judge found that defendant made nothing more than bald assertions that plea counsel failed to investigate and only reviewed the discovery with him before sentencing, and defendant failed to submit any certifications, affidavits, or other competent evidence showing what an investigation would have revealed. The judge found that defendant's argument about the interpreter was barred, as it could reasonably have been raised in the direct appeal. Addressing the merits, the PCR judge reviewed the plea transcript and found defendant admitted that the interpreter had translated into defendant's language, and the colloquy between the judge and defendant made clear that defendant thoroughly understood the proceedings with the interpreter's assistance. The PCR judge also determined that defendant entered the guilty plea voluntarily, knowingly, and intelligently, and defendant's assertion about the discovery did not demonstrate a colorable claim of innocence. The judge concluded that defendant failed to establish a prima facie claim of ineffective assistance of counsel to warrant an evidentiary hearing.

On appeal, defendant raises the following contentions

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WAS ENTITLED TO WITHDRAW HIS GUILTY PLEA SINCE HE HAD FALIED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL, RESULTING IN A GUILTY PLEA WHICH HAD NOT BEEN FREELY, KNOWINGLY AND VOLUNTARILY ENTERED.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST[-]CONVICTION RELIEF.

B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE THAT THE GUILTY PLEA INTO WHICH HE ENTERED WAS NOT MADE FREELY, KNOWINGLY AND VOLUNTARILY, THE POST[-]CONVICTION RELIEF COURT ERRED IN DENYING HIS PETITION SEEKING TO WITHDRAW HIS GUILTY PLEA WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING.

Defendant raises the following contention in a pro se supplemental brief.

THE MATTER SHOULD BE REMANDED TO THE LAW DIVISION FOR A POST-CONVICTION RELIEF HEARING ON DEFENDANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL AND TO ALLOW DEFENDANT THE OPPORTUNITY TO TESTIFY AND HAVE HIS DAY IN COURT.[2]

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). "[A] defendant is not entitled to an evidentiary hearing if the 'allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing.'" State v. Porter, 216 N.J. 343, 355 (2013) (quoting State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997)). 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, material issues of disputed fact lie outside the record, and resolution of the issue necessitates a hearing. R. 3:22-10(b); Porter, supra, 216 N.J. at 355.

To establish a prima facie claim of ineffective assistance of counsel, the defendant

must satisfy two prongs. First, he must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. An attorney's representation is deficient when it [falls] below an objective standard of reasonableness.

Second, a defendant must show that the deficient performance prejudiced the defense. A defendant will be prejudiced when counsel's errors are sufficiently serious to deny him a fair trial. The prejudice standard is met if there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability simply means a probability sufficient to undermine confidence in the outcome of the proceeding.

[State v. O'Neil, 219 N.J. 598, 611 (2014) (citations omitted).]

With respect to a guilty plea, the 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)).]

"In order to establish a prima facie claim, a [defendant] must do more than make bald assertions that he was denied the effective assistance of counsel." Cummings, supra, 321 N.J. Super. at 170. The defendant "must allege facts sufficient to demonstrate counsel's alleged substandard performance." Ibid. (citation omitted). "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification."

We review a judge's decision to deny a PCR petition without an evidentiary hearing for abuse of discretion. See State v. Preciose, 129 N.J. 451, 462 (1992). We discern no abuse of discretion here.

Defendant's argument about the interpreter is procedurally barred, as it could and should have been raised in his direct appeal. R. 3:22-4; Afanador, supra, 151 N.J. at 50. Nonetheless, the argument lacks merit. Defendant never advised the court at the plea or sentencing hearings that he did not understand the interpreter's translations. To the contrary, defendant acknowledged at the plea hearing that the interpreter translated the proceedings and plea forms in defendant's language, and that he understood the plea proceedings. In addition, the record establishes that the interpreter provided a continuous word for word translation at the plea hearing, and there is nothing indicating that the translation was inadequate. See State v. Guzman, 313 N.J. Super. 363, 379 (App. Div.) (quoting United States v. Joshi, 896 F.2d 1303, 1309 (11th Cir.), cert. denied, 498 U.S. 986, 111 S. Ct. 523, 112 L. Ed. 2d 534, (1990)), certif. denied, 156 N.J. 424 (1998).

We have considered defendant's remaining arguments about plea counsel's alleged deficiencies in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the PCR judge in his oral opinion. However, we make the following brief comments.

A person is guilty of second-degree sexual assault if he commits sexual penetration by use of "physical force or coercion, but the victim does not sustain severe personal injury[.]" N.J.S.A. 2C:14-2(c)(1). "[V]aginal intercourse . . . constitute(s) 'sexual penetration.' Any amount of insertion, however slight, constitutes penetration; that is, the depth of insertion is not relevant. The definition of 'vaginal intercourse' is the penetration of the vagina, or of the space between the labia majora or outer lips of the vulva." Model Jury Charge (Criminal), "Sexual Assault (Force/Coercion) (N.J.S.A. 2C:14-2c(1))" (2005). "[P]enile penetration of the space between the labia majora or outer lips comes within the concept of vaginal intercourse to which N.J.S.A. 2C:14-1c refers." State v. J.A., 337 N.J. Super. 114, 120-21 (App. Div.), certif. denied, 169 N.J. 606 (2001).

Here, there was DNA evidence found on the victim's vaginal swab linking defendant to her, and defendant admitted he used physical force on her. Accordingly, the evidence was sufficient to sustain defendant's plea of guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1).

Affirmed.

1 State v. Slater, 198 N.J. 145, 158 (2009).

2 Defendant also argues that NERA should not apply to his sentence. This argument could have been raised in defendant's direct appeal, and is thus barred. R. 3:22-4; State v. Afanador, 151 N.J. 41, 50 (1997). In any event, the argument lacks merit. Second-degree sexual assault under N.J.S.A. 2C:14-2(c)(1) is included in the list of enumerated NERA offenses. See N.J.S.A. 2C:43-7.2(d)(8).