Opinion
DOCKET NO. A-0335-14T2
04-27-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. T.H., Defendant-Appellant.
John E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Beverly I. Nwanna, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Manahan. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-01-0056. John E. Krakora, Public Defender, attorney for appellant (Janet A. Allegro, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Beverly I. Nwanna, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant T.H. appeals from a June 30, 2014 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. We affirm.
On January 24, 2012, defendant was charged in a Union County indictment with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); and third-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4(a) (count three). The indictment arose from reports by the eight-year-old daughter of defendant's ex-girlfriend that he rubbed and digitally penetrated her vagina between January 15 and 31, 2011.
On April 10, 2012, defendant pled guilty to count two of the indictment. The terms of the plea agreement called for defendant to be sentenced within the third-degree range to a four-year term of incarceration with an eighty-five percent parole disqualifier. The plea also called for defendant to appear for an evaluation at the Adult Diagnostic and Treatment Center (Avenel) prior to sentencing, comply with all Megan's Law requirements, and refrain from contacting the victim or her family. The remaining counts were to be dismissed.
During the plea colloquy, defendant, while under oath, provided a factual basis by admitting that he touched the victim's vagina through her clothing for sexual gratification. Defendant also testified that he had enough time to speak with counsel, was satisfied with plea counsel's service, had read and reviewed the plea forms with counsel, and that counsel explained everything in the plea forms and answered all of defendant's questions. In addition, defendant affirmatively acknowledged his right to call witnesses on his behalf, and his right to cross-examine witnesses called against him.
During his June 29, 2012 Avenel evaluation, defendant stated, "I didn't do anything wrong, I didn't do any of it[,]" but also stated that on one occasion the victim sat on a bed with defendant and he touched her vagina on top of her clothes. Defendant appeared for sentencing on August 24, 2012, where he was questioned about the statements made during his Avenel examination. Upon questioning by his counsel, defendant stated that he wanted to proceed with sentencing and did not wish to vacate his plea.
Defense counsel argued for a sentence of three years with an eighty-five percent parole disqualifier, but did not argue that any mitigating factors pursuant to N.J.S.A. 2C:44-1(b) were applicable. The judge found aggravating factors three ("risk that the defendant will commit another offense") and nine ("need for deterring the defendant and others from violating the law"). N.J.S.A. 2C:44-1(a). He found "no mitigating factors." Defendant was sentenced in accordance with the plea agreement to four years in prison subject to an eighty-five percent parole disqualifier, plus additional fines and penalties. The judge also ordered that defendant be subject to three years' special parole supervision followed by parole supervision for life. Counts one and three of the indictment were dismissed. No direct appeal was filed.
Defendant filed a PCR petition on June 11, 2013, which was supplemented by appointed counsel. In his affidavit in support of the petition, defendant argued that trial counsel failed to obtain expert witnesses, investigate the case, or submit pretrial motions. Defendant also argued that trial counsel failed to argue for any mitigating factors at sentencing. The PCR judge, who was also the plea and sentencing judge, heard oral argument on the petition on June 30, 2014. A written decision denying the petition without an evidentiary hearing was entered the same day. This appeal follows.
Defendant raises the following points on appeal:
POINT I
THE COURT ERRED IN DENYING DEFENDANT'S [PCR PETITION] WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE EFFECTIVE LEGAL REPRESENTATION.
. . . .
1. PLEA COUNSEL'S FAILURE TO ADEQUATELY INVESTIGATE THE RELIABILITY OF THE CHILD WITNESS AND ALL POSSIBLE DEFENSES CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
2. PLEA COUNSEL'S ACTIONS IN PRESSURING T.H. TO PLEAD GUILTY WITHOUT EXPLORING ALL POSSIBLE DEFENSES CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT II
BOTH PLEA COUNSEL AND PCR COUNSEL WERE INEFFECTIVE FOR FAILING TO ARGUE SPECIFIC MITIGATING FACTORS AS PART OF T.H.'S DEFENSE.
We affirm substantially for the reasons set forth in the comprehensive and well-reasoned written opinion of Judge Stuart L. Peim. We add only the following.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2(a), a criminal defendant is entitled to post-conviction relief if there was a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey[.]" "A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. "To sustain that burden, specific facts" that "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of constitutionally ineffective assistance of counsel are well suited for post-conviction review. See R. 3:22-4(a)(2); Preciose, supra, 129 N.J. at 460. In determining whether a defendant is entitled to relief on the basis of ineffective assistance of counsel, New Jersey courts apply the two-prong test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984), and United States v. Cronic, 466 U.S. 648, 658-60, 104 S. Ct. 2039, 2046-47, 80 L. Ed. 2d 657, 667-68 (1984). Preciose, supra, 129 N.J. at 463; State v. Fritz, 105 N.J. 42, 49-50 (1987).
Under the first prong of the Strickland test, a "defendant must show that [defense] counsel's performance was deficient." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
The United States Supreme Court has applied these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 407 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Our review of an order granting or denying PCR contains consideration of mixed questions of law and fact. State v. Harris, 181 N.J. 391, 415-16 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We defer to a PCR court's factual findings and will uphold those findings that are "supported by sufficient credible evidence in the record." State v. Nash, 212 N.J. 518, 540 (2013). However, a PCR court's interpretations of law are provided no deference and are reviewed de novo. Id. at 540-41.
Defendant argues that trial counsel failed to fully investigate the matter, adequately review the case with him, or make attempts to test the reliability or competency of the child victim. These alleged failures are supported only by self-serving assertions and bare allegations. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) ("[A] petitioner must do more than make bald assertions that he was denied the effective assistance of counsel."), certif. denied, 162 N.J. 199 (1999). Defendant has failed to demonstrate what evidence was available for investigation or what evidence exists showing the child victim was not credible. There is nothing in the record showing that counsel failed to adequately review the case or the plea deal with defendant. In fact, defendant affirmatively stated during the plea colloquy that he discussed the matter and reviewed the terms of his plea deal with counsel. We also note, as Judge Peim did, that defendant "failed to provide an affidavit or certification or make any submission articulating what [an expert witness specializing in interrogation proceedings] would have stated," or what he would have argued in a motion to suppress his statements made to police.
We next address defendant's contention that trial counsel failed to argue for mitigating factors at sentencing, and that PCR counsel failed to highlight that error when arguing in favor of PCR. As to the ineffective claim against PCR counsel, we recognized in State v. Velez, 329 N.J. Super. 128, 133 (App. Div. 2000), "an attorney representing a defendant in post-conviction relief proceedings may have little ammunition." However, our Supreme Court held in State v. Rue, 175 N.J. 1, 18 (2002), that under New Jersey's PCR scheme, a PCR attorney "is responsible to communicate with his client and investigate the claims." The Court further opined, "[b]ased on that communication and investigation, counsel then must 'fashion the most effective arguments possible.'" Ibid. (quoting Velez, supra, 329 N.J. Super. at 133). In other words, as we held in Velez, a PCR attorney is required to "give his best efforts to his client's cause." Velez, supra, 329 N.J. Super. at 133.
We reject defendant's argument with respect to trial and PCR counsel's purported failure to make any argument regarding mitigating factors at sentencing. Notably, defendant failed to articulate in his PCR petition what mitigating factors should have been argued, an omission noted by Judge Peim. Defendant also failed to demonstrate how the "mitigating factor" arguments would have changed the outcome both at sentencing and in his PCR petition. Even were we to find that counsel provided ineffective assistance by their failure to forcefully argue in favor of mitigating factors either at the time of sentence or on the PCR petition, defendant has not demonstrated how the sentence imposed or the PCR petition would have been different.
Stated differently, there is nothing in the record demonstrating that Judge Peim would have deviated from a negotiated plea agreement and sentenced defendant to a lower term, despite trial counsel's argument for a three-year term. The negotiated plea agreement was, by any objective analysis, favorable to defendant. Defendant's argument on appeal regarding the applicability of and lack of argument by his trial and PCR counsel as to mitigating factors two ("defendant did not contemplate that his conduct would cause or threaten serious harm"), eight ("defendant's conduct was the result of circumstances unlikely to recur"), and nine ("character and attitude of the defendant indicate that he is unlikely to commit another offense"), N.J.S.A. 2C:44-1(b), is insufficient to support a holding, by the standard we employ, of ineffective assistance of counsel. Moreover, Judge Peim's finding both as to aggravating factor three and no mitigating factors militates against a finding that mitigating factors two, eight, and nine would have been applicable even if specifically argued.
Defendant argues for the first time on appeal that the Avenel report — which concluded there was an absence of a clear finding of compulsive sexual behavior — supports his position that mitigating factors two, eight, and nine apply. We disagree. The Avenel report was prepared for the specific purpose of determining whether defendant was eligible for his incarceration to be served in the Adult Diagnostic and Treatment Center predicated upon its findings. See N.J.S.A. 2C:47-3(b) and (d). Its purpose is distinct from criteria to be considered by the sentencing judge for withholding or imposing a sentence of imprisonment. See N.J.S.A. 2C:44-1. --------
We note that "[a]dequate assistance of an attorney is measured according to whether the counsel has professional skills comparable to other practitioners in the field." State v. Davis, 116 N.J. 341, 351 (1989). "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." Nash, supra, 212 N.J. at 543. Here, we find trial counsel's performance with respect to his representation of defendant — which included obtaining a favorable plea agreement — was well within the minimum standard of effective assistance of counsel. Additionally, we find nothing in the record to support defendant's assertion that he was "pressured" into pleading guilty. Defendant gave a factual basis for the conviction during the plea colloquy and at that time stated that he was satisfied with counsel's service and was not pressured into entering the plea. Upon inquiry by defense counsel on the record prior to sentencing, defendant also insisted on proceeding with sentencing rather than seeking to withdraw his plea.
In sum, the record is devoid of any basis to support the finding that either trial or PCR counsel's performance was deficient or that they were not functioning in a manner guaranteed by the Sixth Amendment. See State v. Gaitan, 209 N.J. 339, 349-50 (2012 ), cert. denied, ___ U.S. ___, 133 S. Ct. 1454, 185 L. Ed. 2d 361 (2013). Therefore, we conclude defendant has not made out a prima facie case of ineffective assistance of counsel. See Preciose, supra, 129 N.J. at 463.
Notwithstanding our determination as to defendant's failure to establish that counsel's performance was deficient, we briefly address the second Strickland prong. We hold that defendant has failed to demonstrate how any alleged deficiency resulted in a prejudice that, "but for counsel's unprofessional errors, the result of the proceeding would have been different." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).
Finally, we reject defendant's argument the court erred in denying his petition without an evidentiary hearing. An evidentiary hearing is required where the defendant has shown a prima facie case and the facts on which he relies are not already of record. Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2016). The mere raising of a claim for PCR does not entitle defendant to an evidentiary hearing. Cummings, supra, 321 N.J. Super. at 170. As defendant failed to establish a prima facie case of ineffective assistance of counsel, no evidentiary hearing was required.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION