STATE OF NEW JERSEY v. R.J.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                                NOT FOR PUBLICATION WITHOUT THE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-2397-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

R.J.C.,1

     Defendant-Appellant.
____________________________

                    Submitted January 28, 2019 – Decided February 11, 2019

                    Before Judges Messano and Rose.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Accusation No. 16-09-1025.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Anderson D. Harkov, Designated Counsel,
                    on the brief).

                    Dennis Calo, Acting Bergen County Prosecutor,
                    attorney for respondent (Nicole Paton, Special Deputy
                    Attorney General/Acting Assistant Prosecutor, of
                    counsel and on the brief).


1
     We use initials to protect the identities of the victims. R. 1:38(c)(9).
PER CURIAM

      Defendant R.J.C. appeals from denial of his petition for post-conviction

relief (PCR) without an evidentiary hearing. Defendant pled guilty to a two -

count accusation charging him with the June 19, 2016 second-degree sexual

assault of K.F., an eleven-year-old relative,  N.J.S.A. 2C:14-2(b), and first-

degree aggravated sexual assault of A.D., another female relative who was less

than thirteen-years old at the time, during a five-year period between 2001 and

2006.  N.J.S.A. 2C:14-2(a)(1). In return, the State agreed to recommend that

defendant be sentenced to a seven-year term of imprisonment, subject to the No

Early Release Act (NERA),  N.J.S.A. 2C:43-7.2(a), on count one, and that the

judge sentence defendant as a second-degree offender on count two to a

concurrent term of seven years imprisonment, also subject to NERA.

      At the plea hearing, a Spanish interpreter was present and translated for

defendant. Defense counsel elicited a factual basis for both charges, after which

the judge questioned defendant about his understanding of the terms of the plea

bargain and waiver of his rights. The judge determined that defendant had

entered his guilty plea "knowingly and voluntarily."

      Defendant participated in a psychological examination at the Adult

Diagnostic & Treatment Center at Avenel (Avenel). See  N.J.S.A. 2C:47-1. The


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report furnished to counsel and the court noted defendant's limited English

language skills and confirmed the use of an interpreter for the interview. At

sentencing, after noting defendant's statements during the Avenel evaluation

conflicted with his guilty plea allocution, the prosecutor requested that

defendant "indicate whether or not [his denial of the charges in count two] was

an error and to reaffirm . . . his plea . . . is accurate." The judge placed defendant

under oath, and defense counsel questioned him again using a Spanish

interpreter.

               Q:   You had pled guilty to two counts of an
                    indictment against you. Am I correct?

               A:   Yes.

               Q:   And you were asked a lot of detailed questions
                    about the facts that gave rise to that guilty plea.
                    Am I correct?

               A:   Yes.

               Q:   And you acknowledged that you were guilty of
                    both the [f]irst [c]ount and [s]econd [c]ount of
                    that [i]ndictment. Am I correct?

               A:   Yes.

               Q:   Okay. Are you asking this [c]ourt today or are
                    you telling this [c]ourt that what you said under
                    oath at the time of your plea agreement was
                    inaccurate in any way? Are you saying that . . .
                    the events did not occur?

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             A:   No.

             Q:   Are you asking this [c]ourt today that you want
                  to get out of the plea agreement and have this
                  matter be put back on the trial calendar? . . .

             A:   No.

             Q:   . . . [D]o you want to be sentenced today?

             A:   Oh, yeah.

             Q:   Okay. And I had previously discussed with you
                  what the terms of the plea agreement were. Am
                  I correct?

             A:   Yes.

Following this colloquy, the judge sentenced defendant in accordance with the

plea bargain. Defendant did not file a direct appeal.

      Defendant filed a timely pro se PCR petition alleging the ineffective

assistance of counsel (IAC). Defendant claimed that his counsel never gave him

discovery, never used a translator, generally misinformed him and failed to

properly investigate, including obtaining DNA samples from the victim.

Appointed PCR counsel reiterated these claims in his brief.

      Immediately prior to the PCR hearing on November 9, 2017, defendant

furnished an investigation report detailing an October 2017 interview with , and

statement given by, defendant's wife, A.J., to a defense investigator. This report


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included the investigator's translation of the unsworn and undated statement

from Spanish to English.      It suffices to say that defendant claimed A.J.'s

statement rebutted a claim made by one of the victims that A.J. entered the room

while defendant was molesting her.2

      After considering the arguments of the prosecutor and PCR counsel, the

judge denied defendant's petition in a thoughtful and well-reasoned oral opinion.

The judge entered a conforming order on November 14, 2017, and this appeal

followed.

      Before us, defendant contends he is entitled to an evidentiary hearing

because the court documents — the waiver of indictment and plea forms — are

entirely in English and there is no proof that trial counsel ever reviewed them

with defendant while using a Spanish interpreter. Defendant also argues that

plea counsel's failure to use a Spanish interpreter to communicate, and his failure

to conduct any investigation as a result, demonstrated ineffective assistance. We

disagree and affirm.



2
   In fact, the investigative report and statement do not identify whether A.J.'s
claim rebutted the account of K.F. or A.D. A.J. denied seeing anything during
a family gathering on Father's Day, which was June 19, 2016, the date alleged
in the first count. However, the PCR judge noted that it was A.D., the victim in
the second count, who claimed that A.J. came into the bedroom while defendant
assaulted her.
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      To establish a viable IAC claim, a defendant must show "that counsel

made errors so serious that counsel was not functioning as the 'counsel'

guaranteed . . . by the Sixth Amendment." State v. Fritz,  105 N.J. 42, 52 (1987)

(quoting Strickland v. Washington,  466 U.S. 668, 687 (1984)). Additionally, a

defendant must prove he suffered prejudice due to counsel's deficient

performance. Strickland,  466 U.S.  at 687. "When a defendant has entered into

a plea agreement, a deficiency is prejudicial if there is a reasonable probability

that, but for counsel's errors, the defendant would not have decided to forego the

plea agreement and would have gone to trial." State v. McDonald,  211 N.J. 4,

30 (2012) (citing Hill v. Lockhart,  474 U.S. 52, 59 (1985); State v. Nuñez-

Valdéz,  200 N.J. 129, 139 (2009)). Our Rules anticipate the need to hold an

evidentiary hearing on IAC claims "only upon the establishment of a prima facie

case in support of post-conviction relief." R. 3:22-10(b).

      Simply put, there is no evidence supporting defendant's bald assertions

that trial counsel failed to communicate with him or review discovery, and never

used an interpreter. See State v. Porter,  216 N.J. 343, 355 (2013) (a defendant's

PCR petition must contain "specific facts and evidence supporting his

allegations"). The records from the plea proceedings and sentencing belie any

claim that defendant was misinformed about the terms of the plea bargain or was


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actually innocent of the charges. The statement secured from A.J. actually

rebuts defendant's claim that plea counsel failed to conduct any investigation

because, in her statement, A.J. acknowledged speaking to counsel and providing

him with the information. Lastly, as the PCR judge correctly noted, nothing in

the record suggests that but for counsel's deficient performance, defendant

would have foregone a highly favorable plea bargain and insisted on going to

trial.

         Affirmed.




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