STATE OF NEW JERSEY v. JONATHAN CORRAR

NOT FOR PUBLICATION WITHOUT THE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.

JONATHAN CORRAR,

Defendant-Appellant.

_______________________________

February 8, 2017

Submitted January 23, 2017 Decided

Before Judges Haas and Currier.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 12-06-0434.

Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

MichaelH. Robertson,Somerset County Prosecutor, attorney for respondent (James L. McConnell, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Appellant Jonathan Corrar appeals from the October 9, 2015 Law Division order denying his petition for post-conviction relief ("PCR") without an evidentiary hearing. We affirm.

On June 14, 2012, a Somerset County grand jury returned a four-count indictment charging defendant with two counts of second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(b) (counts one and three); and two counts of third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4 (counts two and four). On October 19, 2012, defendant pled guilty to all four counts of the indictment. In return for his plea, the State agreed to recommend that the trial court impose an aggregate sentence of three years in prison, which was in the third-degree sentencing range even though defendant was pleading guilty to two second-degree offenses.1

Defendant provided a factual basis for his plea and admitted that on two separate occasions in November and December 2011, he entered an internet chatroom using a computer he maintained in his home in Salem County. In the chatroom, defendant made contact with an individual who identified herself as a child who was under the age of thirteen. This individual was actually an undercover detective posing as a child as part of an investigation being conducted by the Somerset County Prosecutor's Office in Hillsborough Township, Somerset County. After "chatting" with the individual, defendant activated the webcam attached to his computer and, believing a child was watching him, exposed his penis and began masturbating.

On February 8, 2013, the trial judge merged count three into count one, and count four into count two, and, in accordance with the terms of the negotiated plea, sentenced defendant to two concurrent three-year terms in prison, subject to NERA. Defendant filed an excessive sentence appeal and we affirmed the sentence imposed. State v. Corrar, No. A-1225-13 (App. Div. Apr. 28, 2014).

Defendant then filed his petition for PCR. Defendant argued that his trial counsel rendered ineffective assistance by failing to: (1) properly investigate his case because he allegedly did not obtain copies of the chatroom records of defendant's conversation with the detective prior to defendant's activation of the webcam; (2) raise the defense of entrapment; and (3) file a motion to change venue from Somerset County to Salem County.

In a thorough written opinion, Judge Bruce Jones considered each of these contentions and denied defendant's petition. The judge concluded that defendant failed to satisfy the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which requires a showing that trial counsel's performance was deficient and that, but for the deficient performance, the result would have been different.

Judge Jones found that defendant's claim that his attorney failed to adequately investigate the case was nothing more than a bald assertion because defendant, who was obviously a participant in the chatroom conversations, did not identify any information concerning the incidents that his attorney failed to obtain. Similarly, there was no basis for defendant's assertion that his attorney improperly failed to raise an entrapment defense. "Nothing prohibits the police from creating characters to conduct undercover investigations." State v. Davis, 390 N.J. Super. 573, 593 (App. Div.), certif. denied, 192 N.J. 599 (2007). Moreover, as defendant admitted during his plea colloquy, the record indicates that defendant initiated the contact with the undercover detective. Thus, an entrapment defense would not have been available to defendant. Ibid.

Judge Jones also found that defense counsel was not ineffective because he did not move for a change of venue from Somerset County to Salem County. In pertinent part, Rule 3:14-1(a) provides that "[i]f it is uncertain in which one of [two] or more counties the offense has been committed . . . prosecution may be had in any of such counties." Thus, venue could have been laid in either Somerset County or Salem County. Judge Jones also found that defendant failed to demonstrate that maintaining venue in Somerset County prejudiced defendant in any way. This appeal followed.

On appeal, defendant raises the following contentions

POINT I

THE ORDER DENYING [PCR] SHOULD BE REVERSED AND THE CASE REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE . . . DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STRICKLAND/FRITZ TEST.

A. COUNSEL WAS INEFFECTIVE BECAUSE HE DID NOT CONDUCT AN ADEQUATE INVESTIGATION.

B. TRIAL COUNSEL WAS INEFFECTIVE BECAUSE HE DID NOT FILE A MOTION TO CHANGE VENUE.

C. THE PCR COURT ERRED BY NOT GRANTING AN EVIDENTIARY HEARING.

When petitioning for PCR, the defendant must establish, by a preponderance of the credible evidence, that he or she is entitled to the requested relief. State v. Nash, 212 N.J.518, 541 (2013); State v. Preciose, 129 N.J.at 451, 459 (1992). To sustain that burden, the defendant must allege and articulate specific facts that "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J.565, 579 (1992).

The mere raising of a claim for PCR does not entitle the defendant to an evidentiary hearing and the defendant "must do more than make bald assertions that he was denied the effective assistance of counsel." 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. Preciose, supra, 129 N.J.at 462.

To establish a prima facie claim of ineffective assistance of counsel, the defendant is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland, supra, 466 U.S. at 687, l04 S. Ct. at 2064, 80 L. Ed. 2d 674 at 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. 156, 163, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. 134, 144, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012).

There is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066; 80 L. Ed. 2d at 695. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 52, the defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).

Moreover, such acts or omissions of counsel must amount to more than mere tactical strategy. Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. As the Supreme Court observed in Strickland,

[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

[Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164, 100 L. Ed. 83, 93 (1955)).]

"It is [also] not ineffective assistance of counsel for defense counsel not to file a meritless motion[.]" State v. O'Neal, 190 N.J. 601, 619 (2007).

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that 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 Judge Jones in his well-reasoned written opinion. We also note that because defendant failed to present a prima facie case of ineffective assistance of counsel, an evidentiary hearing was not required under Preciose, supra, 129 N.J. at 462.

Affirmed.

1 The parties understood that the custodial sentence would be subject to an 85% period of parole ineligibility pursuant to the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.