Opinion
DOCKET NO. A-4312-12T1
08-07-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MATTHEW D. ELKHILL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson and Sabatino. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Accusation No. 98-05-0162. Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Matthew D. Elkhill appeals from the trial court's denial of his petition for post-conviction relief ("PCR") stemming from his May 1998 guilty plea to second-degree sexual assault, N.J.S.A. 2C:14-2b. We affirm.
The criminal accusation in this case charged defendant with committing sexual assault upon F.M., a child who at the time was under the age of thirteen, on two occasions: one between June 1, 1996 and August 31, 1996, and the second between June 1, 1997 and August 31, 1997. It alleged that defendant engaged in that sexual contact for the purpose of sexually arousing or sexually gratifying himself and/or to humiliate or degrade the victim. Because of the second-degree severity of the charged offense, defendant faced a maximum custodial term of up to ten years if he had been found guilty at trial. N.J.S.A. 2C:43-6a(2). Defendant was also charged in a separate warrant with third-degree endangering the welfare of a child.
Pursuant to negotiations with the prosecutor, defendant entered into a plea agreement with the State. Under the terms of that agreement, the State agreed to recommend a sentence of only five years, with a five-year period of parole ineligibility. The State further agreed to dismiss the third-degree endangering charge. Defendant signed the plea form specifying these negotiated terms, along with supplemental plea forms for sexual offenses.
The plea hearing occurred on May 29, 1998. Defendant appeared with counsel and provided a factual basis for his guilty plea. At the outset of the hearing, defendant specifically acknowledged to the court, under oath, that he had signed the plea agreement voluntarily, that he had reviewed it with his counsel, that he understood its contents, that he was satisfied with his counsel's representation, and that he had no questions for the court. With regard to the particulars of his wrongful conduct, defendant admitted that in May 1996, he had encountered the victim, who was then a twelve-year-old boy, while doing maintenance work at a farm. According to defendant, while he and the boy were in a basement on the premises, he caused the boy to pull down his pants. Defendant then admittedly touched the boy's penis. Defendant also did not dispute that he had engaged in this touching for the purpose of sexual gratification, although he denied being actually gratified by his act.
The trial judge accepted the factual basis and explained defendant's potential sentencing consequences to him. Defendant expressed his understanding of those consequences. The judge specifically found that defendant understood the nature of the charges, the consequences of the plea, and had knowingly and intelligently waived his rights.
Consistent with the terms of the plea agreement, on March 8, 1999, the trial court sentenced defendant to a five-year term without parole at the Adult Diagnostic and Treatment Center for sexual offenders. The judge also imposed various other requirements consistent with Megan's Law and other provisions. Defendant did not move to withdraw his guilty plea at the time of sentencing. Defendant did note, however, that he had been experiencing health problems, including vision problems. Defendant's attorney also noted to the court that defendant had suffered from a long series of medical problems stemming from his premature birth and permanent eye and brain damage, as well as from a serious car accident in which a car jack had injured his head. The sentencing judge duly took note of those physical and emotional problems, incorporating them as mitigating factors in his sentencing analysis. See N.J.S.A. 2C:44-1b. On the other hand, the judge also noted as aggravating factors defendant's prior criminal record, his risk of commission of another offense, his breach of the minor's trust, and the need for deterrence. See N.J.S.A. 2C:44-1a.
Defendant did not appeal his sentence. He evidently completed his five-year custodial term many years ago.
Thirteen years after his 1999 judgment of conviction, defendant filed a PCR petition in the trial court alleging that his plea counsel had been constitutionally ineffective in various respects. According to defendant, as amplified in his certification and his current brief on appeal, he pled guilty only because of pressure allegedly exerted upon him by his attorney. He maintains that he had told his attorney that he was innocent, but that his attorney had advised him he could not realistically go to trial and that accepting the State's plea offer was his "only option." Defendant further alleges that his plea counsel failed to show him the pretrial discovery materials and did not discuss with him possible legal defenses to the State's charges.
The State opposed the PCR application, arguing that it was both procedurally untimely under Rule 3:22-12 and also without merit. After hearing oral argument, the trial court dismissed the petition without an evidentiary hearing.
The PCR hearing was conducted by a different judge, as the judge who took defendant's plea and imposed sentence had since retired.
Defendant raises the following argument on appeal:
POINT IFor the reasons that follow, we uphold the dismissal of his petition. We do so on the merits without relying on the State's procedural arguments.
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING ON MR. ELKHILL'S CLAIM THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BY TRIAL COUNSEL'S FAILURE TO PURSUE A DEFENSE EVEN THOUGH MR. ELKHILL PROTESTED HIS INNOCENCE, AND BY COUNSEL'S COERCING MR.
ELKHILL INTO PLEADING GUILTY AFTER FAILING TO REVIEW THE DISCOVERY WITH HIM.
As a person charged with criminal offenses, defendant is entitled under both the Sixth Amendment of the United States Constitution, and under cognate principles in New Jersey law, to the effective assistance of defense counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). To establish a deprivation of that right, a convicted defendant 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. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695.
The United States Supreme Court has extended these principles to the representation provided by an attorney to a criminal defendant 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). To establish ineffective assistance by such plea counsel, 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 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). Defendant has failed to make that required showing here.
"[B]ald assertions" of deficient performance are insufficient to support a PCR application alleging ineffective assistance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Porter, ___ N.J. ___, ___ (2013) (slip op. at 14) (reaffirming these principles in evaluating which of a defendant's various PCR claims warranted an evidentiary hearing). Although defendant maintains that he was coerced into accepting the State's plea offer by his plea counsel, that allegation is belied by the plea transcript itself, in which defendant repeatedly acknowledged to the court that he understood the terms of his plea and had entered into it willingly. The judge painstakingly reviewed the terms of the plea with defendant on the record. The factual basis of the sexual assault was explored in sufficient detail. Although the judge was made aware at or before sentencing of defendant's physical and emotional problems, there is no indication in the plea transcript or sentencing transcript that defendant was incapable of understanding what he was doing or that he had been strong-armed by his lawyer to enter into the agreement with the State.
The record is also bereft of proof of a "reasonable probability," as required by Lafler, Frye, and Strickland, that the result would have been different if defendant's plea counsel had advised him to reject the State's offer and proceed to trial. The plea agreement reduced defendant's sentencing exposure by half — from ten years to five years. The Megan's Law consequences and other sex crimes penalties would have been the same, regardless of whether defendant's conviction had occurred after a trial rather than through a negotiated plea. There is no expert opinion or other competent evidence to presume that defendant would have been exonerated at trial by a claim of diminished capacity or some other defense. As the PCR judge aptly described it in his oral decision on January 24, 2013, defendant "has not shown that [his prior] counsel was deficient in any way, shape or form. His allegations are too vague, conclusionary, [and] speculative, and do[] not require an evidentiary hearing." See State v. Preciose, 129 N.J. 451, 460 (1992) (noting the prerequisite of a prima facie showing of merit before an evidentiary hearing is necessary to adjudicate a PCR petition).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION