STATE OF NEW JERSEY v. VALTER SFORCA

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                                NOT FOR PUBLICATION WITHOUT THE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-4486-18T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

VALTER SFORCA,

     Defendant-Appellant.
__________________________

                   Submitted January 6, 2021 – Decided February 1, 2021

                   Before Judges Geiger and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 12-08-0621.

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

                   Lyndsay V. Ruotolo, Acting Union County Prosecutor,
                   attorney for respondent (Meredith L. Balo, Special
                   Deputy Attorney General/Acting Assistant Prosecutor,
                   of counsel and on the brief).

PER CURIAM
      Defendant Valter Sforca appeals from an April 25, 2019 Law Division

order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

      We derive the following facts from the record. A Union County grand

jury returned a ten-count indictment against defendant. Pertinent to this appeal,

the indictment charged: first-degree aggravated sexual assault of a victim less

than thirteen years old,  N.J.S.A. 2C:14-2(a)(1) (count one); second-degree

sexual assault,  N.J.S.A. 2C:14-2(b) (count four); fourth-degree criminal sexual

contact,  N.J.S.A. 2C:14-3(b) (count six); and second-degree sexual assault,

 N.J.S.A. 2C:14-2(b) (count seven).

      During a February 19, 2013 pre-trial conference, defendant indicated that

he wanted to enter a plea but needed more time. The court afforded defendant

additional time, reminding him of the State's final plea offer and his sentencing

exposure if he went to trial—an aggregate fifty-five-year term, subject to an

eighty-five percent period of parole ineligibility. Defendant was advised that a

plea cutoff and trial date would be imposed if a plea agreement was not reached

by the next court appearance.

      On March 12, 2013, defendant pled guilty to counts one, four, six, and

seven. The plea agreement recommended a ten-year term, subject to an eighty-


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five percent period of parole ineligibility under the No Early Release Act

(NERA),  N.J.S.A. 2C:43-7.2, on count one; a concurrent seven-year NERA term

on count four; an eighteen-month term on count six; and a seven-year NERA

term on count seven; with all terms running concurrently. Defendant would be

subject to Parole Supervision for Life,  N.J.S.A. 2C:43-6.4, and Megan's Law,

 N.J.S.A. 2C:7-1 to -23.    The remaining six counts would be dismissed at

sentencing.

      During the plea hearing, defendant acknowledged he had been provided

with full discovery and reviewed it with his attorney, including the police

reports.   He further acknowledged:        (a) discussing possible motions with

counsel; (b) he did not need additional time to speak to his attorney or anyone

else; (c) he understood the rights he would be waiving if he plead guilty; (d) no

one had forced or threatened him to waive those rights; and (e) he was "giving

[his] plea freely, voluntarily, knowingly and intelligently." Defendant also

acknowledged that he was satisfied with counsel's advice.

      The terms of the plea agreement were recited on the record. Defendant

acknowledged that he read and understood the plea forms, initialed the forms,

and signed them. He further acknowledged that the answers on the plea forms

were his, that he had reviewed his answers with his attorney. Defendant also


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acknowledged his sentencing exposure on each count he was pleading guilty to

if he went to trial as well as the recommended sentence.

      Defendant indicated that he was pleading guilty because he was guilty and

for no other reason. He then provided a detailed factual basis for each count

that he was pleading guilty to. As to each of those counts, he acknowledged the

identity and age of each victim at the time of the offenses. Each of the victims

were friends of defendant's daughter. As to count one, he admitted digitally

penetrating K.G.'s vagina for his own sexual gratification. K.G. was less than

thirteen years old at the time. As to count four, defendant admitted "touch[ing]

A.S. over the clothing on top of her genitalia, her vagina" for his "own sexual

gratification and own sexual arousal." A.S. was eleven years old at the time.

As to count six, he admitted touching M.M. "over the clothing on top of her

vagina and genitalia for [his] own sexual gratification and arousal." M.M. was

seventeen years old at the time. As to count seven, defendant admitted to

"touch[ing] K.M. on top of – over her clothing on top of her genitalia, or vagina,

for [his] own sexual gratification and arousal." K.M. was then eight years old.

      The court accepted the pleas as being freely and voluntarily entered after

receiving the advice of competent counsel and that the pleas were supported by

adequate factual bases. Finally, defendant reiterated that he had no questions.


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      On September 20, 2013, the court conducted the sentencing hearing.

Defense counsel indicated that the presentence report was accurate and asked

the court to impose the recommended sentence. Defendant chose not to allocute.

The court found aggravating factors one (nature of the offense), two (seriousness

of harm to the victim), three (risk of reoffending), and nine (need for deterrence).

 N.J.S.A. 2C:44-1(a)(1), (2), (3), and (9). The court also found mitigating factor

seven (no prior record).  N.J.S.A. 2C:44-1(b)(7). The court concluded that the

aggravating factors outweighed the sole mitigating factor.         Defendant was

sentenced in accordance with the terms of the plea agreement. He did not file a

direct appeal.

      On October 1, 2018, defendant filed a pro se petition for PCR. Counsel

was appointed to represent him and filed an amended petition.            Defendant

claimed that his sentence on count one was illegal because there was no evidence

of digital penetration. Defendant also claimed: (1) trial counsel was ineffective

by advising him to plead guilty to a crime he did not commit; (2) his factual

basis was given unknowingly; (3) criminal sexual contact was not an enumerated

offense under  N.J.S.A. 2C:47-1; and (4) the Sexual Assault Nurse Examiner

Program (SAANE) fee should not have been assessed on the criminal sexual

contact conviction.


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      Judge Regina Caulfield found that defendant's claims were belied by the

plea transcript. As to count one, defendant twice admitted digital penetration.

While the phrase "digital penetration" may not have been used during the plea

hearing, the judge considered that mere "legal terminology" and noted defendant

"admitted putting his finger inside the vagina of [K.M.]. That is sufficient under

the law to qualify as an act of penetration and therefore forms the [factual] basis

of an aggravated sexual assault plea."         Accordingly, the judge rejected

defendant's argument that counsel misinformed him about what would qualify

as penetration.

      The judge noted that the plea hearing demonstrated that counsel reviewed

the discovery with defendant, including the police reports, and discussed

possible motions and the likelihood of conviction. As to defendant's claim that

counsel instructed him to plead guilty to the aggravated sexual assault, a crime

he now asserts he did not commit, the judge observed that defendant

acknowledged that no one forced him, instructed him, or expected him, to give

certain answers. On the contrary, defendant requested the judge to accept his

guilty plea and acknowledged that he was "pleading guilty because [he was]

guilty and for no other reason." Furthermore, defendant indicated that he did

not need more time to talk to his attorney, and did not express any confusion,


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hesitation, or disagreement with his attorney, and provided a factual basis for

each count. The judge pointed out that counsel was successful in negotiating

the minimum ten-year term on count one, where the sentencing range was ten to

twenty years, with all other terms running concurrently despite there being four

separate victims.

      The judge labelled defendant's claim that counsel failed to investigate the

case as a mere "b[a]ld assertion." She found that he did not demonstrate any

facts that an investigation would have revealed.

      The judge also rejected defendant's confusing argument that the

conviction for criminal sexual contact was invalid because it is not an

enumerated offense subject to Megan's Law. The court explained that defendant

pled guilty to aggravated sexual assault and sexual assault, each rendering him

subject to Megan's Law.

      Finally, the judge rejected defendant's argument that a SAANE penalty

should not have been imposed on count six. The court found that the penalty

applied to criminal sexual contact.

      Based on these findings and conclusions, the judge denied the petition,

determining that none of defendant's claims had merit, he had not established a




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prima facie case of ineffective assistance of counsel, and an evidentiary hearing

was not necessary. This appeal followed.

      On appeal, defendant argues:

            THE PCR 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
            RECEIVED INEFFECTIVE ASSISTANCE OF
            COUNSEL FROM HIS PLEA ATTORNEY WHO (1)
            MISINFORMED      HIM     ABOUT   WHAT
            CONSTITUTED PENETRATION FOR A FIRST-
            DEGREE AGGRAVATED SEXUAL ASSAULT
            OFFENSE; (2) INSTRUCTED HIM TO PLEAD
            GUILTY TO THAT OFFENSE, A CRIME HE DID
            NOT COMMIT; AND (3) DID NOT CONDUCT AN
            APPROPRIATE INVESTIGATION.

      Under the Sixth Amendment of the United States Constitution, a criminal

defendant is guaranteed the effective assistance of legal counsel in his defense.

Strickland v. Washington,  466 U.S. 668, 687 (1984). A PCR petitioner 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 a conviction based on a guilty plea, the petitioner must show "a

reasonable probability that, but for counsel's errors, [the petitioner] would not

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have pleaded guilty and would have insisted on going to trial," Hill v. Lockhart,

 474 U.S. 52, 59 (1985), and doing so "would have been rational under the

circumstances," Padilla v. Kentucky,  559 U.S. 356, 372 (2010) (citing Roe v.

Flores-Ortega,  528 U.S. 470, 480 (2000)). See also State v. Nuñez-Valdéz,  200 N.J. 129, 139 (2009). "A reasonable probability is a probability sufficient to

undermine the confidence in the outcome." Strickland,  466 U.S.  at 694.

      A defendant is entitled to an evidentiary hearing only when he "has

presented a prima facie [case] in support of [PCR]," that a defendant "must

demonstrate the reasonable likelihood that his . . . claim will ultimately succeed

on the merits." State v. Marshall,  148 N.J. 89, 158 (1997) (first alteration in

original) (quoting State v. Preciose,  129 N.J. 451, 462-63 (1992)). Moreover,

an evidentiary hearing is not required unless the court determines "that there are

material issues of [disputed] fact that cannot be resolved by reference to the

existing record." R. 3:22-10(b). "Defendant may not create a genuine issue of

disputed fact, warranting an evidentiary hearing, by contradicting his prior

statements without explanation." State v. Blake,  444 N.J. Super. 285, 299 (App.

Div. 2016).

      To establish a prima facie case of ineffective assistance of counsel,

defendant "must do more than make bald assertions" that counsel's performance


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was substandard. State v. Porter,  216 N.J. 343, 355 (2013) (quoting State v.

Cummings,  321 N.J. Super. 154, 170 (App. Div. 1999)). "Rather, defendant

must allege specific facts and evidence supporting his allegations."            Ibid.

"However, a defendant is not entitled to an evidentiary hearing if the 'allegations

are too vague, conclusory, or speculative.'" Id. at 355 (quoting Marshall,  148 N.J. at 158). "Thus, when 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." Ibid. (quoting

Cummings,  321 N.J. Super. at 170). Accord R. 3:22-10(c).

      Applying those principles, we affirm substantially for the reasons given

by Judge Caulfield in her thorough and thoughtful oral decision. We add the

following comments.

      As correctly noted by the judge, under  N.J.S.A. 2C:14-1(c), "sexual

penetration" includes "insertion of the hand, finger or object into the vagina by

. . . the actor." Moreover, "[t]he depth of insertion shall not be relevant as to the

question of commission of the crime." Defendant's testimony during the plea

hearing clearly established penetration. The judge properly rejected defendant's

claim that the factual basis was inadequate. More fundamentally, defendant has


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not demonstrated how counsel misinformed him of this element or how any such

misinformation rendered the plea invalid.

        Defendant's contention that counsel failed to investigate his case

amounted to nothing more than an unsupported, bald assertion. Noticeably

absent was any evidence that additional investigation would have disclosed,

much less how that information would likely have changed the outcome of the

case.

        Defendant claimed that the $800 SAANE penalty did not apply to criminal

sexual contact. We disagree. Criminal sexual contact,  N.J.S.A. 2C:14-3(b), is

one of the offenses enumerated in  N.J.S.A. 2C:7-2. Therefore, the SAANE

penalty was properly imposed on that count.  N.J.S.A. 2C:43-3.6.

        Lastly, defendant's claim that he was somehow pressured into pleading

guilty to count one despite being innocent of that crime is belied by the plea

hearing transcript. The record is barren of any evidence that he pled guilty to

that crime because he was coerced or threatened by counsel.

        Defendant's arguments are without sufficient merit to warrant further

discussion in a written opinion. R. 2:11-3(e)(2).

        Affirmed.




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