Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the STATE OF NEW JERSEY v. A.W
Annotate this CaseRECORD 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NOT FOR PUBLICATION WITHOUT THE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-0339-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
A.W.,
Defendant-Appellant.
_______________________________
Submitted November 9, 2017 – Decided December 14, 2017
Before Judges Currier and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
10-07-1287.
Joseph E. Krakora, Public Defender, attorney
for appellant (Monique Moyse, Designated
Counsel, on the brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Annmarie Cozzi,
Senior Assistant Prosecutor, on the brief).
PER CURIAM
Defendant A.W. appeals a June 3, 2016 order denying his
petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
On July 21, 2010, a grand jury indicted defendant for second-
degree aggravated sexual assault,
N.J.S.A. 2C:14-2(c)(1), upon his
minor daughter, T.B., who, at the time, was incapacitated due to
injury and medication. Defendant went to trial, but the jury was
unable to reach a unanimous verdict.
On October 28, 2013, defendant entered into a plea agreement,
pleading guilty to an amended charge of third-degree aggravated
criminal sexual contact,
N.J.S.A. 2C:14-3(a). He also pled guilty
to fourth-degree contempt of a judicial order,
N.J.S.A. 2C:29-
9(a), under a separate accusation. In exchange for the guilty
pleas, the State agreed to dismiss Indictment No. 10-07-1295,
which charged defendant with three counts of first-degree
aggravated sexual assault,
N.J.S.A. 2C:14-2(a)(1), and second-
degree endangering the welfare of children,
N.J.S.A. 2C:24-
4(a)(1), upon his granddaughter, B.M. The State further agreed
to recommend concurrent six-month terms of imprisonment, which
defendant began serving on the date of his plea hearing. The plea
agreement also required defendant to undergo a psychological
evaluation to determine the applicability of the New Jersey Sex
Offenders Act pursuant to
N.J.S.A. 2C:47-1, register under Megan's
Law,
N.J.S.A. 2C:7-2, be subjected to community supervision for
life, and pay appropriate fines, penalties, and assessments.
2 A-0339-16T4
The defendant initialed and signed the supplemental plea
forms for sexual offenses, which outlined the Megan's Law and
community supervision for life requirements. During the plea
hearing, defense counsel stated that defendant would be subjected
to registration pursuant to Megan's Law and community supervision
for life. Defense counsel went over the plea forms with defendant
several days before the plea hearing. Defendant testified that
he understood the Megan's Law and community supervision for life
aspects of the sentence.
Defendant testified that he understood the charges he faced,
had extensively reviewed the discovery in the sexual assault and
contempt cases with trial counsel, pled freely and voluntarily
without duress of any kind, reviewed each of the questions on the
plea forms in detail with trial counsel, and understood the
questions and his answers were true and accurate. Defendant
further testified that he signed and initialed the plea forms,
including two forms containing extensive additional questions for
certain sexual offenses regarding Megan's Law registration,
address verification, notification, and community supervision for
life requirements. He also testified that he understood that he
would have to register under Megan's Law. Finally, he testified
that he did not have any questions for his attorney or the court.
3 A-0339-16T4
Defendant gave a detailed factual basis for his plea to
aggravated criminal sexual contact, admitting he had touched the
victim's breast and inner thigh for the purpose of arousing himself
while the victim was physically helpless and unable to resist his
sexual advances. Defendant also gave a detailed factual basis for
his plea to the contempt charge, admitting he had knowingly
contacted the victim in violation of a bail condition that
prohibited him from having contact with the victim in any way,
either directly or through a third party.
The trial court accepted the guilty pleas, finding defendant
had provided a sufficient factual basis for each plea and the
pleas were given knowingly and voluntarily.
On March 18, 2014, defendant underwent the court-ordered
psychological evaluation. The psychologist found that, although
defendant's "criminal sexual behavior was repetitive, there was
insufficient psychological evidence to conclude that he felt
irresistibly compelled to sexually assault his daughter."
Accordingly, the psychologist concluded that defendant was not
eligible for sentencing under the Sex Offenders Act, and the case
was returned to the trial court for sentencing pursuant to
N.J.S.A.
2C:47-3(d).
On April 28, 2014, defendant appeared for sentencing. He did
not raise any issue concerning his pleas or the recommended
4 A-0339-16T4
sentence. The court sentenced defendant in accordance with the
terms of the plea agreement, imposing a concurrent sentence of
time served (275 days) on the aggravated criminal sexual conduct
and contempt of a judicial order. The court ordered defendant to
register under Megan's Law and prohibited him from having any
contact with T.B. and any family members residing with her. The
court also imposed appropriate fines, penalties, and assessments.
On May 9, 2014, the court entered an amended judgment of
conviction, which included community supervision for life
monitored through the New Jersey Parole Board.
Defendant did not file a motion to withdraw his guilty pleas
either before or after sentencing. Nor did he take a direct appeal
from his convictions or sentence.
On February 6, 2015, defendant timely filed a pro se PCR
petition alleging ineffective assistance of trial counsel.
Counsel was assigned to represent him. Defendant claims inadequate
assistance of counsel when he pled guilty, asserting he was unaware
of the terms of the recommended sentence and the applicability of
Megan's Law. He further claimed that his trial counsel told him
to "answer yes to the statements read to [him] at the plea
hearing," despite "not understand[ing] what [he] was saying yes
to." He also contends that he was under the influence of
prescription medications that affected his judgment when he
5 A-0339-16T4
entered his plea. He contends he would not have "taken the plea"
if he had been properly informed of the Megan's Law requirements
and had not been under the influence of his medication.
On June 1, 2016, the PCR judge heard oral argument, took the
matter under advisement, and issued a June 3, 2016 order and nine-
page written opinion denying defendant's petition, finding
defendant had not satisfied the Strickland test.1 The PCR judge
also found the decision to plead guilty amounted to sound trial
strategy given the criminal exposure defendant faced under the
pending indictments. This appeal followed.
On appeal, defendant raises the following argument for
consideration:
POINT ONE
[A.W.] IS ENTITLED TO AN EVIDENTIARY HEARING
ON HIS CLAIM THAT HIS ATTORNEY RENDERED
INEFFECTIVE ASSISTANCE OF COUNSEL
The applicable legal principles that guide our review of this
PCR appeal involving claims of trial counsel's ineffectiveness are
well-established. Under the Sixth Amendment of the United States
Constitution, a criminal defendant 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
1
Strickland v. Washington,
466 U.S. 668, 687,
104 S. Ct. 2052,
2064,
80 L. Ed. 2d 674, 693 (1984).
6 A-0339-16T4
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.; accord State v. Fritz,
105 N.J. 42, 58 (1987)
(adopting the Strickland two-part test in New Jersey).
"Judicial scrutiny of counsel's performance must be highly
deferential." Strickland, supra,
466 U.S. at 689,
104 S. Ct. at
2065,
80 L. Ed. 2d at 694. In applying the Strickland-Fritz test,
there is a strong presumption that counsel's performance fell
within the wide range of reasonable representation. Id. at 690,
104 S. Ct. at 2066,
80 L. Ed. 2d at 695; State v. Pierre,
223 N.J.
560, 578-79 (2015); State v. Hess,
207 N.J. 123, 147 (2011).
When defendants establish a prima facie claim of ineffective
assistance of counsel, they are ordinarily entitled to an
evidentiary hearing on their claims. State v. Preciose,
129 N.J.
451, 462 (1992); R. 3:22-10(b). However, PCR petitioners are not
automatically entitled to an evidentiary hearing. State v.
Cummings,
321 N.J. Super. 154, 170 (App. Div.), certif. denied,
162 N.J. 199 (1999). Rather:
A defendant shall be entitled to an
evidentiary hearing only upon the
establishment of a prima facie case in support
of post-conviction relief, a determination by
the court that there are material issues of
7 A-0339-16T4
disputed fact that cannot be resolved by
reference to the existing record, and a
determination that an evidentiary hearing is
necessary to resolve the claims for relief.
To establish a prima facie case, defendant
must demonstrate a reasonable likelihood that
his or her claim, viewing the facts alleged
in the light most favorable to the defendant,
will ultimately succeed on the merits.
[R. 3:22-10(b).]
"A court shall not grant an evidentiary hearing . . . if the
defendant's allegations are too vague, conclusory or
speculative[.]" R. 3:22-10(e)(2); see 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, defendant must allege specific facts and
evidence supporting his allegations." State v. Porter,
216 N.J.
343, 355 (2013). As we explained in Cummings, "in order to
establish a prima facie claim, a petitioner must do more than make
bald assertions that he was denied the effective assistance of
counsel." Supra,
321 N.J. Super. at 170. He must allege facts
sufficient to demonstrate his claims. Ibid.
Applying these standards, we affirm the PCR court's
conclusion that defendant did not establish a prima facie case of
ineffective assistance of counsel, and that his claims were without
merit.
The record establishes defendant's pleas were given
knowingly, voluntarily, and with full understanding of the
8 A-0339-16T4
sentencing consequences. The record further establishes defendant
gave a detailed factual basis for his pleas to aggravated criminal
sexual contact and contempt of a judicial order, admitting wrongful
conduct satisfying each element of those offenses.
Noticeably absent from the plea hearing is any indication
that defendant encountered difficulty understanding the questions
posed to him or formulating his answers. Questions did not have
to be repeated and the record does not indicate any unresponsive,
garbled, incoherent, or otherwise suspect answers.
In support of his claim, defendant presented a list of his
medications, his physician's business cards, and several medical
reports prepared by his medical providers. Of particular interest
is a report dated March 19, 2013, prepared by Neurology Group of
Bergen County, P.A. The report states that defendant's "remote
memory, fund of knowledge, language function and speech were
normal." His dementia was described as "mild." He was described
as being independent for self-care and his driving was not
restricted.
Defendant also submitted medical reports from the Center for
Pain Management that related to an examination that occurred long
after the date of his plea hearing. The report indicates that
defendant had been prescribed OxyCotin for thirty days beginning
October 8, 2013. The report further states that "while he was
9 A-0339-16T4
incarcerated the physician there did not provide him any pain
medications except for Tylenol."
During his court-ordered psychological evaluation, defendant
told the psychologist: "My family and my lawyer convinced me to
take this plea because you can't predict what a jury will do."
The psychologist further concluded: "His speech was relevant and
coherent. Though he said he has been diagnosed with dementia,
there was no indication of significant memory impairment. Thought
processes, as measured by speech, seemed to be adequately
organized." This evaluation occurred after the dosage of OxyCotin
prescribed for defendant had been increased.
Defendant did not submit any reports or other evidence
regarding the effect of the medication on his cognitive ability
to understand the terms of the plea agreement or to enter into the
agreement knowingly and voluntarily. Defendant did not present
any argument during the PCR hearing regarding trial counsel's
alleged failure to inform him of the Megan's Law consequences of
the plea.
We further note that defendant benefited from an extremely
favorable plea agreement. He avoided retrial of a second-degree
aggravated sexual assault charge. Three counts of first-degree
aggravated sexual assault and one count of second-degree
endangering the welfare of children were dismissed. Defendant
10 A-0339-16T4
avoided the risk of much more serious convictions and was sentenced
to time served of only 275 days. Defendant would have had to
successfully defend each of the more serious charges to obtain a
better result.
We defer to the PCR court's factual findings. Pierre, supra,
223 N.J. at 579. We review a judge's decision to deny a PCR
petition without an evidentiary hearing for abuse of discretion.
Preciose, supra,
129 N.J. at 462. We discern no such abuse of
discretion by the PCR court. The judge correctly concluded that
defendant did not establish a prima facie case of ineffective
assistance of counsel. Accordingly, the judge properly denied
defendant's petition without conducting an evidentiary hearing.
Affirmed.
11 A-0339-16T4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
