STATE OF NEW JERSEY v. D.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.C.,

Defendant-Appellant.

___________________________________

October 27, 2016

Argued January 4, 2016 Decided

Before Judges Lihotz and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-08-0743.

Ronald A. Rosa argued the cause for appellant (Fuggi Law Firm, P.C., attorneys; Robert R. Fuggi, Jr., on the brief).

Brett A. Berman, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Acting Mercer County Prosecutor, attorney; Mr. Berman, of counsel and on the brief).

The opinion of the court was delivered by

HIGBEE, J.A.D.

Defendant, D.C., appeals from a June 30, 2014 order denying him post-conviction relief (PCR) and denying his motion to withdraw his guilty plea to second-degree endangering the welfare of a child. N.J.S.A. 2C:24-4. We affirm.

Defendant was indicted and charged with second-degree official misconduct, N.J.S.A. 2C:30-2(a) (Count One); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (Count Two); and three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (Counts Three, Four, and Five). Defendant entered into a negotiated plea agreement which provided, in exchange to pleading guilty to Count Three, the remaining counts would be dismissed and the State would recommend defendant be sentenced within the third-degree range, even though it was a second-degree crime. A transcript of the plea hearing is unavailable as the recording was lost.

Defendant received a suspended sentence of four years in the custody of the Commissioner of the Department of Corrections conditioned upon his: obtaining and maintaining verifiable employment, continuing mental health treatment, forfeiting his teaching credentials, undergoing a TASC evaluation and compliance with the resulting recommendations, complying with restrictions on travel and computer use, having no contact with the victims, paying restitution to the victim Jess,1 registering with Megan's Law, and Parole Supervision for Life. Defendant agrees all the foregoing conditions were included in the plea agreement. The remaining counts, including Counts Four and Five, which set forth charges involving two other children were dismissed under the plea agreement and defendant was not sentenced to any period of incarceration.

Defendant now asserts his counsel advised him there would be minimal travel restrictions resulting from his guilty plea. He also asserts he was told he would only be prohibited from using social networking websites, but both his travel and computer use have been severely restricted. Defendant claims he would not have pled guilty had he known the true extent of these restrictions.

His allegation of ineffective assistance of counsel focuses primarily on the claim that his counsel allowed him to plead guilty despite knowing there was no factual basis for the plea, or in the alternative, that his counsel provided erroneous advice on whether a factual basis for the plea even existed. Specifically, defendant avers he was not acting in a supervisory capacity over Jess when any illegal conduct occurred, as is required for a conviction of second-degree endangering the welfare of a child. N.J.S.A. 2C:24-4.

Defendant filed neither a motion to withdraw his plea before sentencing nor an appeal of his conviction after he was sentenced. Instead, defendant timely filed a petition for PCR claiming: he received new exculpatory evidence, his guilty plea was involuntary and uninformed, his guilty plea lacked an adequate factual basis, counsel's advice about consequences of his guilty plea was inaccurate, the State failed to produce exculpatory evidence, and counsel provided ineffective assistance.

The PCR judge held a multi-day evidentiary hearing because there was no transcript of the plea colloquy. Defendant produced school records that corroborated his testimony regarding Jess's school attendance. The records demonstrated defendant was Jess's assigned classroom teacher from November 22, 2006, until February 2007. However, Jess did not attend school for this entire period. Over the school's December 2006 to January 2007 winter break, Jess went to her father s home in Boston and eventually transferred to a Boston school where she completed the remainder of the 2006-2007 school year. Jess returned to her former New Jersey school district to begin high school in September 2007; defendant remained in the school district teaching in the middle school.

The charged offenses concern different time periods. Count Two charged defendant with third-degree aggravated sexual contact allegedly occurring during December 2006, when Jess was still enrolled in defendant's school and assigned to his classes, but was away in Boston. On the other hand, Count Three charged defendant with second-degree endangering the welfare of a child, occurring intermittently between November 1, 2007, and January 31, 2008, when Jess attended high school in the same school district, but not in the school where defendant taught. When defendant plead to Count Three, he was pleading to a crime that required him to admit he had a supervisory role over Jess when the offense occurred, even though at this time Jess was not a student in the school where he taught.

At the PCR hearing, defendant admitted Jess was a troubled teenager, distraught over her personal problems. He claims he began to communicate with Jess over the internet when she went to Boston. At this time, defendant was over thirty years old and Jess was approximately fourteen years old. Defendant further admitted he eventually had improper sexual interactions with Jess in the form of internet sessions where the two would remove their clothes and defendant would masturbate while they viewed each other via a webcam. Defendant also acknowledged Jess masturbated on camera for him on at least one occasion.

On cross-examination, defendant claimed he was a "mentor" who was "counseling" Jess, as "she was a troubled student." The communications started with defendant "helping her out" in addressing drug abuse issues and suicidal thoughts. Defendant further admitted that he told his attorney he "masturbated over the internet with her on a video camera" on multiple occasions. Defendant testified the sexual conduct only occurred while Jess was in Boston and ended in June 2007. During the PCR hearing, defendant claimed he and Jess continued communicating occasionally after Jess returned to New Jersey, but the online sexual conduct did not continue. Defendant further testified he advised Jess in January 2008 that he wanted to stop communicating with her over the internet because he had learned another teacher had gotten in trouble for similar behavior. Defendant testified his attorney told him that he could not advise him to perjure himself, so his only options were to accept the plea deal and admit a supervisory role or go to trial and risk incarceration.

When testifying about his plea, defendant admitted he read each question on the plea forms and that his attorney was available to answer any questions prior to him pleading guilty. He acknowledged reviewing and signing the plea form indicating he could be subjected to travel restrictions associated with parole supervision for life. Defendant maintains his attorney told him "travelling shouldn't be as much of an issue, especially if it was domestic travel." He also testified about asking his attorney to obtain school records to prove he was never Jess's teacher during the period when they engaged in sexual conduct online. The school records were not obtained until shortly before the PCR hearing.

Defendant's plea counsel also testified at the PCR hearing. In his counsel's account, defendant admitted he had multiple internet communications with Jess, involving nudity and masturbation using a webcam from December 2006 until defendant broke off his relationship with her in January 2008. Counsel explained defendant wanted a non-custodial sentence and was concerned he would not be able to achieve that outcome for his client.

The first plea offer from the prosecutor s office was for a custodial sentence. However, when a second prosecutor entered the case, defendant's plea counsel was able to obtain a plea offer which included a recommendation for a non-custodial sentence. Plea counsel then met with defendant in his office and together they completed the plea forms "question by question." The initial plea offer was based on defendant pleading guilty to Count Two, the charge of third-degree aggravated sexual contact with a minor occurring in December 2006. This crime included a supervisory element. The attorney testified he reviewed the restrictions associated with Megan's Law, Parole Supervision for Life, and likely travel restrictions with defendant.

Counsel further testified defendant refused to accept a plea to Count Two because defendant claimed he did not have sexual contact with Jess during the December 2006 period alleged. Instead, defendant agreed to plead guilty to Count Three, endangering the welfare of a child, occurring a year later between November 2007 and January 2008, a period when he was no longer her teacher.

Counsel testified at the PCR hearing that he and defendant as well as he, the assistant prosecutor, and the plea judge had discussions about whether there was a factual and legal basis for this guilty plea. These conversations focused on the question of whether defendant held a role in Jess s life that justified the second-degree charge. This plea agreement included the assistant prosecutor's recommendation defendant be sentenced in the third-degree range so defendant could avoid serving prison time.

Defendant's counsel acknowledged he did not obtain the school records, but explained he did not recall defendant asking him to do so. At the PCR hearing, plea counsel was asked: "And did you think it would be important to obtain the records from the school to line up whether or not he was in a supervisory capacity during that time period?" Counsel replied, "Not when my client told me he was."

Regarding the plea colloquy, counsel testified defendant's factual basis for the plea was "that during that period of time that he had had web communication that involved mutual masturbation, or masturbation by him during the period of time that he was a school teacher and during the period of time that she was in the school system, or, . . . something to that effect." Counsel testified he reviewed the law on the issue of the crime's supervisory element. He believed the facts of the case that Jess was not attending defendant's school at the time of the sexual contact, but was still a student in his district created a question for the jury.

Defendant s plea counsel testified he believed that there was a factual basis for the crime, defendant could have been found guilty of the second-degree endangering charge, and so advised defendant. Plea counsel testified he remembers reviewing the case State v. Buscham, 360 N.J. Super. 346 (App. Div. 2003), and discussing its implications with the assistant prosecutor. Plea counsel also testified he felt the case supported his belief that whether defendant held a supervisory role over Jess would be a jury question.

Counsel emphasized that defendant's primary concern was to avoid serving a period of incarceration. Counsel stated he told defendant he was willing to take the case to trial but also advised defendant of the risk of incarceration. Counsel asserted that defendant was satisfied with the plea after it was entered. Counsel obtained a delay in the sentencing date so that defendant could complete a scheduled trip to Thailand before sentencing. In addition, counsel testified that after the sentence was imposed, defendant s only concern was to get copies of the music he had stored on his computer, as he was also the manager of a band at the time. Counsel stated he obtained the music data for defendant.

The plea judge also testified at the PCR hearing. She was unable to recall details about the plea hearing. She did recall having a discussion in chambers with both attorneys regarding defendant's supervisory role over Jess, but could not recall the substantive details of the discussion. The judge was an experienced criminal judge and the assigned Megan's Law judge when she accepted defendant's plea. She testified she always required a factual basis for a guilty plea be placed on the record, and explained how she would review all Megan's Law and Parole for Life restrictions during the plea hearing with defendants. Although she could not remember the factual basis placed on the record in this case, she stated she knew she would never approve a plea without defendant first putting the factual basis on the record in response to questions posed by his attorney. She further explained she would not do any type of investigation of the factual admissions. She accepted the statements being placed on the record by the defendant. She stated she would not question the accuracy of a defendant s words, but would only assure a factual basis for the plea was set forth on the record.

The PCR judge also heard testimony from the assistant prosecutor who participated in the plea bargain. She recalled defendant giving the requisite factual basis and going "through a colloquy about Megan's Law . . . ramifications." She specifically recalled the plea judge reviewing Megan's Law "restrictions on where you can work and live and move" with defendant.

The assistant prosecutor testified she believed that, even though defendant was not Jess's teacher when the sexual contact occurred, the State could establish defendant acted while in a supervisory capacity over Jess because she remained a student in the same district. She testified the State would have proceeded to trial if a plea was not entered.

Following the hearing, the PCR judge denied defendant's application for PCR. He found defendant's trial counsel's assistance was not ineffective, defendant was not entitled to withdraw his guilty plea, and defendant failed to prove a Brady2 violation occurred. In his decision, the PCR judge found defendant's testimony not credible. He also found the testimony of the trial judge, the assistant prosecutor, and defendant's prior counsel to be "completely credible." The PCR judge stated: "[I] n short, the court rejects [defendant]'s assertion that he was given misleading and incorrect legal advice." With respect to defendant's assertion that he was not adequately advised about the consequences of pleading guilty, including travel restrictions related to Parole Supervision for Life, and certain requirements under Megan's Law, the PCR judge relied on the fact that defendant completed the plea forms which "notify a defendant of the specific requirements and effects of pleading guilty." The fact that defendant signed and initialed the forms weighed heavily in the judge's determination that defendant failed to meet his burden demonstrating counsel provided ineffective advice.

The PCR judge rejected defendant's claim that counsel should have obtained school records for the three other victims or otherwise undertaken additional investigation. The judge noted discovery ceased when plea negotiations began and defendant failed to allege any specific facts suggesting any new evidence that would be exculpatory or provide impeachment value at trial.

Finally, with respect to whether defendant provided an adequate factual basis on the record, the PCR judge stated: "[H]aving conducted an evidentiary hearing[,] and based on the court's assessment of credibility[,] . . . this court rejects [defendant's] version of events." The PCR judge also explained that "any staff person of an institution regardless of whether or not the person is responsible for the care or supervision of the child, may also qualify as a supervisor." Additionally, he determined "the decision of whether a legal or assumed responsibility existed is an issue for the jury to decide."

The PCR judge further found "there was sufficient evidence in the record for the State to make a prima facie case." Moreover, the judge addressed whether defendant suffered any prejudice. The judge found even if defendant "could not be convicted under the indictment for lack of 'responsibility' or 'supervisory' role[,] . . . [he] still could have been found in violation of third-degree Endangering the Welfare of a child, as no such supervision is required" as an element of that crime. Therefore, because defendant "pled to Endangering the Welfare of a Child in the second-degree, which was treated as third-degree for sentencing purposes, the effect was the same."

Defendant appeals from the order denying his PCR petition and raises the following two issues

Point I: The court committed reversible error by finding that a factual basis existed for the guilty plea, as appellant had no supervisory authority over J.B., during the times averred in the indictment.

Point II: The court committed reversible error in holding that no ineffectiveness of counsel existed, as [defendant's plea counsel's] own testimony verifies the ineffectiveness of appellant's prior counsel.

The standard of review for a PCR proceeding is "necessarily deferential to a PCR court's factual findings based on its review of live witness testimony." State v. Nash, 212 N.J. 518, 540 (2013). We uphold those findings if they are supported by sufficient credible evidence in the record. Ibid. However, we review a PCR court's interpretation of the law de novo. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The defendant carries the burden to establish the right to relief by a preponderance of credible evidence. State v. Echols, 199 N.J. 344, 357 (2009).

A defendant is not entitled to the best representation available, only to reasonably competent representation. See State v. Arthur, 184 N.J. 307, 332-33 (2005). Stated another way, defendant must show counsel's representation fell below an objective standard of reasonableness under the circumstances. Thus, "[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. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 113 L. Ed. 2d 873 (1996) (respectively quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1975) and Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 371, 88 L. Ed. 2d 203, 210 (1985) (alteration in original)). Regarding the prejudice prong, "a conclusive presumption of prejudice is inappropriate except in cases exemplified by egregious shortcomings in the professional performance of counsel." State v. Fritz, 105 N.J. 42, 61 (1987).

We first address the key claim of defendant's PCR petition, which is directed at one target: the alleged lack of a factual basis for defendant's plea to the offense charged in Count Three. Defendant asserts he was not actually acting in a supervisory or caretaking role over Jess during the time frame in which the offense is alleged to have occurred. Defendant now seeks to vacate his plea, asserting the factual basis was insufficient to support the charge for which he was convicted and his attorney gave him wrong advice about the elements of the second-degree crime of endangering. Defendant argues this amounts to a denial of his constitutional right to effective counsel which resulted in him pleading guilty to an offense he had not committed.

Under Rule 3:9-2, the court cannot accept a guilty plea without a factual basis. This ensures courts are "satisfied from the lips of the defendant that he committed the acts which constitute the crime." State v. Smullen, 118 N.J. 408, 415 (1990) (quoting State v. Barboza, 115 N.J. 415, 422 (1989)).

We turn to the question of what the pertinent statute requires for a second-degree conviction. Under N.J.S.A. 2C:24-4(a)(1), a person is guilty of endangering the welfare of a child in the second-degree only if the actor is: "[a] person having a legal duty for the care of a child or who has assumed responsibility for the care of a child."3 Nonetheless, that relationship must "justify the harsher penalties of the second-degree crime." State v. McInerney, 428 N.J. Super. 432, 443 (App. Div. 2012), certif. denied, 214 N.J. 175 (2013) (quoting State v. Galloway, 133 N.J. 631, 661 (1999)). Such a relationship may be contrasted with that of "a person assuming only temporary, brief, or occasional caretaking functions, such as irregular or infrequent babysitting, [who] would be chargeable with child endangerment in the [third-]degree." Galloway, supra, 133 N.J. at 661-662. Such a determination is fact-sensitive and is left for the jury, or the trial judge on motion for dismissal or acquittal. See McInerney, supra, 428 N.J. Super. at 443.

The PCR judge denied the relief requested by defendant and held the decision as to whether defendant was functioning in a supervisory capacity, as required by the statute, was indeed a jury issue. Factors a jury would evaluate when considering culpability under the statute include: disparity in age, the importance of the activities the actor supervises, and the extent of a defendant s supervision beyond the normal expected supervisory aspects of his role. McInerney, supra, 428 N.J. at 441 (citing Galloway, supra, 133 N.J. at 662). This could include a teacher-student relationship. McInerney, supra, 428 N.J. Super. at 441; accord State v. Sumulikoski, 221 N.J. 93, 108 (2015). The Supreme Court has instructed the second-degree offense for endangering exists only for "those who have assumed a general and ongoing responsibility for the care of the child. Galloway, supra, 133 N.J. at 661. "That responsibility may be legal and formal or it may arise from informal arrangements." Ibid. Nonetheless, the relationship must "justify the harsher penalties of the second- degree crime." McInerney, supra, 428 N.J. Super. at 443 (quoting Galloway, supra, 133 N.J. at 661).

This stands in contrast to a relationship within the offense's third-degree, which instead applies to "a person assuming only temporary, brief, or occasional caretaking functions, such as irregular or infrequent babysitting." Galloway, supra, 133 N.J. at 661-662. Importantly, this determination is fact-sensitive and is left for the jury, or the trial judge on motion for dismissal or acquittal. See McInerney, supra, 428 N.J. Super. at 443.

The PCR judge denied relief. As previously stated, we defer to the credibility findings of the PCR judge who heard live testimony. We accept his findings about defendant's lack of credibility, and defense counsel's credibility, about defendant admitting the he continued to engage in sexual conduct with Jess until as late as January 2008; this encompasses the time frame charged in Count Three. Counsel sufficiently explained to his client the fact sensitive nature of whether his conduct demonstrated he had assumed responsibility for Jess's care. Although this record may not contain all the facts the State would present at trial, it sufficiently demonstrates how defendant's relationship with Jess commenced because he was her teacher and, as defendant himself stated, Jess looked to him for comfort and help. The record shows defendant identified her as a troubled teenager. Jess turned to him for help and guidance she could not at that time obtain from her parents, who were then involved in a divorce. Confidential communications between the two were exchanged to discuss Jess's problems with her parents, drug and substance abuse, and thoughts of suicide. Defendant even admitted he "counseled" Jess on these issues over a significant period of time.

This relationship existed because of the trust defendant developed as Jess's teacher, and during this time, the sexual contact underpinning the endangering charge occurred. These facts could support the State's position defendant acted as a caregiver offering direction to Jess in matters unrelated to his role as a teacher. Certainly defendant could rebut this evidence by establishing at trial that the relationship was more limited than required for conviction. Still, the State's evidence, although not unassailable, was sufficient to allow the trial judge to determine a jury should decide whether the State proved beyond a reasonable doubt the elements of the offense charged. Plea counsel explained to defendant there was a risk of conviction and a sentence of significant jail time. Counsel presented this choice to defendant: accept the plea agreement with the certain result of a non-custodial sentence, or present his case to the jury, subject to the uncertainty of the verdict. In light of the evidence, we reject the notion defendant's plea was inadequately supported by a sufficient factual basis for conviction. We also conclude defendant was neither uninformed, nor led astray, by counsel's advice. Defendant s primary desire was to avoid any prison time and, according to counsel, defendant himself was an active participant in the plea negotiations.

As to all of defendant's remaining allegations of ineffective assistance of counsel, we find they lack sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(2). We reject these ineffective assistance of counsel claims for substantially the same reasons set forth by the PCR judge in his comprehensive opinion.

Affirmed.

1 Count Three, to which defendant pled guilty involved J.B., whom we identify as "Jess," a fictitious name used to protect the identity of the victim.

2 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

3 The definition is distinct and different from the supervisory language for aggravated criminal sexual contact pursuant to N.J.S.A. 2C:14-3, which instead states: "An actor is guilty of aggravated criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in N.J.S.A. 2C:14-2a (2) through (7)." Relevant circumstances include situations where "[t]he victim is at least 13 but less than 16 years old; and . . . [t]he actor has supervisory or disciplinary power over the victim by virtue of the actor s legal, professional, or occupational status." N.J.S.A. 2C:14-2(a)(2)(b).

As previously noted, defense counsel testified he relied upon State v. Buscham in determining there was a factual basis for defendant s plea. Buscham involved review of a conviction for aggravated sexual contact, not endangering the welfare of a child, but the factors a jury may consider overlap to some degree.