STATE OF NEW JERSEY v. H.G.

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                                NOT FOR PUBLICATION WITHOUT THE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-2115-20

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

H.G.,1

     Defendant-Appellant.
_______________________

                   Submitted March 17, 2022 – Decided March 25, 2022

                   Before Judges Haas and Mawla.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Salem County, Indictment No. 16-04-0198.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Frank M. Gennaro, Designated Counsel, on
                   the briefs).

                   Kristin J. Telsey, Acting Salem County Prosecutor,
                   attorney for respondent (David M. Galemba, Special
                   Deputy Attorney General/ Acting Assistant Prosecutor,
                   of counsel and on the brief).


1
     We use initials to protect the privacy of the victim. R. 1:38-3(c)(9).
PER CURIAM

      Defendant H.G. appeals from a July 21, 2020 order denying his petition

for post-conviction relief (PCR) without an evidentiary hearing. We affirm.

      Defendant was indicted on: first-degree aggravated sexual assault, act of

penetration upon a child less than thirteen years old,  N.J.S.A. 2C:14-2(a) (count

one); third-degree aggravated criminal sexual contact,  N.J.S.A. 2C:14-3(a)

(count two); and third-degree endangering the welfare of a child,  N.J.S.A.

2C:24-4(a) (count three). The charges stemmed from an incident reported by

the victim's mother to police, recounting the victim confided in her that

defendant had touched her on two separate occasions. Specifically, the child

told her mother defendant isolated her in a bedroom and attempted to remove

her clothing and put his hands down the front of her skirt, under her underwear ,

and touched her vagina. In another incident, the child stated defendant held her

down on a bed, pulled up her shirt, and sucked on her left breast. Police recorded

an interview with the child, and she described the incidents in greater detail.

      The trial court granted the State's motion, opposed by defendant, to admit

fresh complaint and tender years testimony and denied defendant's motion to bar

admission of the victim's pre-trial statement at trial. Thereafter, defendant pled

guilty to count three. In exchange for the plea, the State recommended a


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sentence of fines and assessments, Megan's Law,2 parole supervision for life,

and no jail time or probation.      At the plea hearing, the court questioned

defendant regarding knowledge of his rights, voluntary execution of the plea

forms, and his satisfaction with counsel's representation—all of which he

acknowledged. The court reviewed the State's sentencing recommendation with

defendant, which he also acknowledged.        He advised the court he had no

questions, after which his attorney elicited the factual basis for the plea.

Defendant was later sentenced in accordance with the negotiated plea

agreement.

        Defendant did not appeal from his conviction or move to withdraw the

plea but instead filed a PCR petition nearly two years after sentencing. He

certified he was innocent and the plea was entered in error.         He claimed

ineffective assistance of counsel, alleging his attorney ignored his claims of

innocence and coerced him to plead guilty. He argued the State made an initial

plea offer of five years of probation without having to register as a sex offender

but withdrew the offer and instead proposed the "horrible plea deal that [he]

entered into."




 2 N.J.S.A. 2C:7-1 to -23.
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      Defendant certified there was no evidence supporting his guilt except the

victim's testimony, which he alleged was coached by police. He asserted the

victim's mother fabricated the accusation when he rebuffed her offer to pay him

to marry her to obtain a legal immigration status. He argued these cumulative

errors violated his constitutional right to effective counsel.

      Judge Sandra Lopez issued a twenty-two page written decision, detailing

her reasons for denying defendant's petition. She found that "[d]espite his

allegations . . . [d]efendant does not allege specific facts . . . about actions plea

counsel did or did not take that forced or coerced [d]efendant to take the plea

deal offered by the State." She noted defendant "does not assert that he made

plea counsel aware of his actual innocence in the course of plea counsel's

representation." The judge found "[d]efendant's allegation that the victim was

coached is patently unsupported." Given the trial court's decision denying

defendant's pre-trial motion and finding the victim's pre-trial statement

admissible, she concluded "[t]he record thus shows that the victim would have

been permitted to testify at trial." The judge also found defendant failed to

"provide any information about the alleged prior plea deal that lapsed or any




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actions plea counsel did or did not take that caused said lapse." She concluded

defendant "failed to satisfy the first prong of the Strickland [3] test."

       Judge Lopez found defendant failed to meet the second Strickland prong

because he did not demonstrate he was prejudiced by defense counsel's

performance. She stated:

             Defendant did not assert in his petition that, but for plea
             counsel's alleged coercion and forcing him to enter a
             plea, he would have insisted on going to trial. See
             [State v. DiFrisco,  137 N.J. 434, 457 (1994)].
             Defendant faced one first-degree and two third-degree
             charges. . . . Under the terms of the plea he accepted,
             the State dropped [c]ounts [one] and [two]. The
             recommended sentence in the plea deal . . . had no
             period of incarceration or probation. By accepting this
             plea, [d]efendant avoided a far harsher sentence
             incidental to the first degree and two third-degree
             sexual offenses with which he was charged. Defendant
             thus avoided what could effectively be a life sentence
             if convicted by a jury.

The judge concluded "rejecting the plea bargain would not have been rational

under these circumstances."

       Furthermore, defendant was not prejudiced by his counsel's failure to

accept the alleged prior plea offer because his petition was "silent on whether

there is any probability that []either the prosecutor []or the trial court would



3
    Strickland v. Washington,  466 U.S. 668, 687 (1984).
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                                          5
have prevented the offer from being accepted or implemented. [Missouri v.

Frye,  566 U.S. 134, 148 (2012)]." She also rejected defendant's cumulative error

argument, finding he "failed to allege specific facts that indicate that any alleged

errors by plea counsel, standing alone or in combination with others, caused

[d]efendant prejudice sufficient to warrant a remand and trial."

        The judge found although defendant asserted he was innocent, he did not

establish he was entitled to withdraw his plea pursuant to the Slater4 factors.

She noted he did not challenge the plea at any time prior to filing the PCR

petition and gave no reason why he waited nearly two years after sentencing to

raise the claim. The plea was the result of a negotiated agreement and the State

would be prejudiced if the court permitted it to be withdrawn because of the pre-

trial motion practice it engaged in. Furthermore, "[t]he passage of time would

hamper the State's ability to present its case, which is solely based on witness

testimony on an event that occurred nearly five years ago." The judge found

"[i]t would also be unfair to force the victim, a minor child, to relive her

experience when she and her family reasonably relied on the finality of

[d]efendant's conviction so they could move on with their lives."

        Defendant raises the following arguments on appeal:


4
    State v. Slater,  198 N.J. 145, 157-58 (2009).
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            I.  THE PCR COURT IMPROPERLY DENIED
            DEFENDANT'S CLAIM THAT HE RECEIVED
            INEFFECTIVE ASSISTANCE OF HIS PLEA
            COUNSEL WITHOUT AFFORDING HIM AN
            EVIDENTIARY HEARING.

                  A. THE PREVAILING LEGAL PRINCIPLES
                  REGARDING CLAIMS FOR INEFFECTIVE
                  ASSISTANCE OF COUNSEL, EVIDENTIARY
                  HEARINGS AND PETITIONS FOR POST-
                  CONVICTION RELIEF.

                  B. DEFENDANT ESTABLISHED A PRIMA
                  FACIE CLAIM FOR POST-CONVICTION
                  RELIEF,  ENTITLING   HIM TO   AN
                  EVIDENTIARY HEARING.

      A PCR court need not grant an evidentiary hearing unless "a defendant

has presented a prima facie [case] in support of post-conviction relief." State v.

Marshall,  148 N.J. 89, 158 (1997) (alteration in original) (quoting State v.

Preciose,  129 N.J. 451, 462 (1992)). "To establish such a prima facie case, the

defendant must demonstrate a reasonable likelihood that his or her claim will

ultimately succeed on the merits." Ibid.

      A defendant seeking to set aside a guilty plea claiming ineffective

assistance of counsel must show: "(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. Nuñez-

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Valdéz,  200 N.J. 129, 139 (2009) (alterations in original) (quoting DiFrisco,  137 N.J. at 457).   Counsel's performance is evaluated with extreme deference,

"requiring 'a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance . . . .'" State v. Fritz,  105 N.J. 42,

52 (1987) (quoting Strickland,  466 U.S. at 688-89).

      The PCR court has discretion to determine whether an evidentiary hearing

is necessary to aid in its analysis. Marshall,  148 N.J. at 157-58. Where the PCR

court has not held an evidentiary hearing, our review is de novo. State v. Harris,

 181 N.J. 391, 421 (2004).

      Having thoroughly reviewed the record pursuant to these principles, we

affirm for the reasons set forth in Judge Lopez's thorough and well-written

opinion. The record does not establish a prima facie showing of ineffective

assistance of counsel to grant an evidentiary hearing or post-conviction relief.

      Affirmed.




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