Opinion
DOCKET NO. A-1438-14T3
04-01-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ULYESS T. SAMPLE, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-12-1659. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.
On June 23, 2009, defendant pled guilty to two counts of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). During the plea colloquy, defendant admitted that, between August 2006 and September 2008, he had sexual intercourse with and put his penis into the mouth of a child under the age of thirteen. In addition, between August 2006 and August 2008, he committed an act of sexual penetration with and put his penis into the mouth of another child, also under the age of thirteen.
Thereafter, defendant gained the impression the State had videotaped its interviews of the victims. Concerned plea counsel had failed to disclose the existence of and review these videotapes with him, defendant filed a pre-sentencing motion to withdraw his guilty plea. After he was assigned new counsel, defendant learned the children's interviews had not been videotaped and he promptly withdrew his motion.
On December 22, 2009, the sentencing court imposed an aggregate sentence of twenty years with an eighty-five percent period of parole ineligibility. Defendant did not file a direct appeal.
On July 12, 2013, defendant filed a PCR petition and brief; another brief was subsequently filed on defendant's behalf by appointed counsel. When before the PCR court, defendant argued plea counsel failed to investigate the case and sufficiently discuss the discovery with him to enable him to make an informed decision about pleading guilty. Specifically, defendant contended that because the State did not have the victims medically examined or conduct a rape kit investigation, the State had no forensic evidence he had engaged in sexual intercourse with either victim.
Defendant also faulted sentencing counsel for failing to advocate as a mitigating factor that, "within months" of the offenses, he was severely depressed over the death of three family members and a close friend and, in general, suffered from mild bipolar disorder, mood swings, and depression.
On October 3, 2014, the PCR court denied defendant's petition.
Defendant raises the same arguments on appeal as he did before the PCR court. His specific argument points are:
POINT I - THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II - THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE IT VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
POINT III - THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE, REGARDLESS OF WHETHER TRIAL COUNSEL
WAS INEFFECTIVE UNDER THE STRICKLAND TEST, DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHT UNDER THE NEW JERSEY CODE OF CRIMINAL JUSTICE TO HAVE ALL MITIGATING FACTORS DELINEATED AT SENTENCING WAS VIOLATED.
In order for a defendant to obtain relief based upon a claim of ineffective assistance of counsel, he must show (1) the particular manner in which counsel's performance was deficient, and (2) "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Preciose, 129 N.J. 451, 463-64 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984)).
In demonstrating that counsel's performance was deficient, a defendant must overcome "'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, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, to satisfy the second prong, there must be "a probability sufficient to undermine confidence in the outcome." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of either plea or sentencing counsel within the Strickland-Fritz test, and that the PCR court correctly concluded that an evidentiary hearing was not warranted, see Preciose, supra, 129 N.J. at 462-63.
First, defendant did not identify the investigation plea counsel failed to conduct, let alone what that investigation would have revealed and how it would have changed the outcome of the proceeding. Second, even if plea counsel failed to advise defendant that the victim with whom he had had sexual intercourse had never been medically examined or a rape kit investigation conducted, defendant committed offenses other than sexual intercourse with an under-aged child, which also would have exposed defendant to severe punishment if proven at a trial.
Third, defendant does not indicate when the act or acts of sexual intercourse took place in relation to when the victim disclosed this conduct to the police. A medical examination or a rape kit investigation may not have necessarily yielded evidence of sexual intercourse if too much time had passed between the act and examination or testing; thus, the State's failure to have conducted these forensic exams or tests may not have exonerated defendant. Fourth, although unclear as what he admitted to the police, the record indicates defendant did give a confession.
As for defendant's claims against sentencing counsel, the record reflects the sentencing court reviewed defendant's presentence report, in which there was clear reference to the fact defendant suffered from depression, mood swings, and had been diagnosed with mild bipolar disorder. Thus sentencing counsel's failure to discuss these afflictions at the time of the sentencing hearing cannot have affected, in all reasonable probability, the outcome of the proceeding. As for defendant's claim the sentencing attorney failed to raise the argument defendant was depressed over the death of three family members and a close friend "within months" of the offenses, the sentencing court was nonetheless aware he suffered from depression.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION