Opinion
DOCKET NO. A-5941-13T3
04-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. L.W., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-03-0561. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Esther Suarez, Hudson County Prosecutor, attorney for respondent (Brian Schreyer, Assistant Prosecutor, on the brief). PER CURIAM
Defendant L.W. appeals the Law Division's July 10, 2014 denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. Having reviewed the facts in light of applicable law, we affirm.
The facts and procedural history underlying defendant's conviction and direct appeal are set out at length in our prior opinion in this case, State v. L.W., No. A-2405-11 (App. Div. Oct. 15, 2013). We therefore provide only a brief overview of the relevant facts and procedural history.
On October 17, 2008, defendant was arrested on suspicion that he sexually assaulted his eleven-year-old daughter, A.C., and her twelve-year-old friend, G.G. At the police station, defendant waived his Miranda rights and agreed to give a recorded statement under oath. Two Special Victims Unit detectives questioned defendant over the course of approximately three hours. During the video-recorded interview, defendant admitted that he had put his mouth on A.C.'s vagina and touched G.G. in a way that made her feel uncomfortable.
In February 2009, a grand jury charged defendant with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (counts one and two); second-degree sexual assault, (counts three and eight), N.J.S.A. 2C:14-2(b); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts four and five); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count nine); and fourth-degree abuse (counts six, seven, and ten), N.J.S.A. 9:6-1, -3.
Prior to trial, the judge held a hearing to determine the admissibility of defendant's video-recorded statement. The statement was on a DVD and consisted of three separate segments. The first two segments were sixty minutes long, and the third segment was fifty-three minutes long.
Defense counsel informed the judge that defendant suspected that the recording did not include his complete interrogation because the time counter had been reset each time a new segment began. However, the Public Defender's Office had denied counsel's request for an expert examination of the recording because defendant did not provide enough information to justify the expense of an expert.
The trial judge reviewed the entire recorded statement, and determined it contained nothing to suggest that defendant was threatened or coerced. Instead, the judge found that defendant leaned forward when speaking to the detective, expressed his willingness to explain what had happened, and insisted on continuing when the detective suggested stopping after one hour. Finding that the recorded statement was voluntary and knowing, the judge determined it was admissible.
On March 18, 2011, defendant pleaded guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, and second-degree sexual assault, N.J.S.A. 2C:14-2b. The guilty pleas were entered pursuant to a negotiated plea agreement.
Subsequently, defendant moved to withdraw his guilty pleas. Defendant's motion was denied, and he was sentenced to concurrent ten and five-year sentences, subject to eighty-five percent parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant filed a notice of appeal on February 21, 2012. On appeal, we affirmed defendant's conviction and sentence. See L.W., supra, No. A-2405-11 (slip op. at 21).
On December 4, 2013, defendant filed a PCR petition alleging fifty instances of ineffective assistance. Following oral argument on July 10, 2014, defendant's petition was denied. No evidentiary hearing was held. Defendant filed the instant appeal on August 21, 2014, challenging the PCR court's denial of relief without an evidentiary hearing.
Defendant presents the following issues for our consideration:
POINT I
THE MATTER SHOULD BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
POINT II
THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Additionally, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the [PCR judge]." Id. at 421 (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)).
PCR is New Jersey's analogue to the federal writ of habeas corpus. See State v. Jones, 219 N.J. 298, 310 (2014). It is "[n]either a substitute for direct appeal, nor a vehicle to relitigate the merits of cases resolved on their merits[.]" Ibid. (internal citations omitted); see also R. 3:22-3, -5.
A court should grant an evidentiary hearing on a PCR petition if a defendant has presented a prima facie case of ineffective assistance of counsel. State v. Preciose, 129 N.J. 451, 462 (1992). However, "[i]f the court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997) (internal citations omitted).
New Jersey has adopted the two-prong test handed down by the United States Supreme Court in the companion cases of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). See State v. Fritz, 105 N.J. 42, 58 (1987) (adopting Strickland's two-pronged test). To establish a prima facie case of ineffective assistance of counsel:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
[Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.]
Under the first prong, a defendant must demonstrate "counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To meet the second prong, "[a] defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.
Defendant contends the PCR judge failed to give proper consideration to the assertion, made in defendant's PCR petition, that he is innocent, and was coerced by his counsel into pleading guilty. However, we addressed these arguments on direct appeal, finding, "defendant claims he was innocent of the charges but has not provided any plausible facts to show that this bald assertion is meritorious[,]" and "defendant provided an adequate factual basis for his guilty plea[.]" See L.W., supra, No. A-2405-11 (slip op. at 13, 15). These arguments are therefore procedurally barred by Rule 3:22-5.
We have carefully considered defendant's remaining arguments and find them without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).