Opinion
DOCKET NO. A-5592-12T3
08-28-2014
STATE OF NEW JERSEY, Plaintiff-Respondent v. H.J.A., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherin A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson and Sabatino.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, Bergen County, Indictment No. 91-01-1037. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherin A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant H.J.A. appeals from the denial of his petition for post-conviction relief (PCR). We affirm.
On appeal, defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE.
POINT II
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-12.
POINT III
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST[-]CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE WAS ENTITLED TO WITHDRAW HIS GUILTY PLEA ON THE BASIS THAT HE HAD FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL, RESULTING IN A GUILTY PLEA WHICH HAD NOT BEEN FREELY, KNOWINGLY, AND VOLUNTARILY ENTERED.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF THE ENTRY OF GUILTY PLEAS, EVIDENTIARY HEARINGS AND PETITIONS FOR POST[-]CONVICTION RELIEF.
B. SINCE THE DEFENDANT PRESENTED A PRIMA FACIE CASE THAT THE GUILTY PLEA INTO WHICH HE ENTERED WAS NOT MADE FREELY, KNOWINGLY AND VOLUNTARILY AS A RESULT OF THE FAILURE TO HAVE RECEIVED ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL, THE POST[-]CONVICTION RELIEF COURT ERRED IN DENYING HIS PETITION SEEKING TO WITHDRAW HIS GUILTY PLEA WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING.
In 1991, a Bergen County grand jury indicted defendant on charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts two and three); aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) (counts four and five); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count six). Prior to the indictment, defendant voluntarily provided a statement to police admitting that he had sexually assaulted his then fifteen-year-old daughter.
As part of a negotiated plea agreement, defendant agreed to plead guilty to the endangering charge. In exchange, the State agreed to dismiss all of the remaining counts contained in the indictment. At sentencing, the court imposed a five-year probationary sentence, conditioned upon his participation in psychological counseling, together with appropriate fines and penalties. Defendant took no direct appeal.
Neither the plea agreement form nor the transcript of the plea colloquy is contained in the record. However, the judgment of conviction included in the appendix reflects that defendant pled guilty to count six of the indictment and the State dismissed the remaining counts.
In 2011, defendant filed a pro se PCR petition. In his certification in support of the petition, defendant stated that he pled guilty based upon the advice of counsel and that he stood by his "original statement of [n]ot [g]uilty. My daughter also wishes to recant her actions and has sincerely apologized many times for this[.]" In addition, defendant set forth additional facts in his certification relevant to this appeal:
I have lived in Florida with my daughter since 2005 and also lived with her in [New Jersey] throughout the entire time. Until recently when my daughter got married my wife and I found out how difficult it is to move on by ourselves especially in Florida. I just want to move on from this and be cleared from the register and the systems. I want to be able to live a normal life with my wife, children and grandchildren. I would like to be able to take them to the park and pick them up from school with no restrictions.
. . . .
Please note that I am unable to live with my wife in Florida because of the Megan [sic] Law restrictions. I still help her with the housing bills (rent, electric, food, etc.). She is unemployed and has no income.
Defendant also attached to his pro se petition a notarized letter from his daughter stating that she "falsely accused [H.J.A.] of sexual improprieties. There were a lot of things going on back then and after 20 years I do not recall the reason why I made such an ugly allegation. I do recall trying to recant my testimony during the process but I was ignored."
Following the appointment of counsel, a letter brief in support of the petition was filed on behalf of defendant. Thereafter, defendant's daughter submitted an October 8, 2012 certification in which she certified that defendant is "innocent of all charges," and that she had fabricated the allegations "merely as an attempt to scare [him]." She states that her attempt in 1991 to recant the accusations was "mostly ignored."
The court conducted oral argument, and upon its conclusion, Judge Eugene H. Austin issued his oral decision denying the petition. He first found the petition was procedurally barred, and there was no basis upon which to relax the time bar, which he concluded would result in "fundamental injustice to the State [.]" In addition, the judge concluded defendant failed to make a "prima facie showing of ineffectiveness of counsel that would warrant an evidentiary hearing under Preciose." In particular, he found it incredible that trial counsel would not have told defendant about the daughter's recantation before proceeding with the plea and sentence. Judge Austin also noted that defendant entered into a very favorable plea bargain with the State, avoiding his exposure on much more severe counts of the indictment and getting only probation. Finally, the judge found "defendant made a knowing, voluntary, intellingent[ly]-counseled plea, and knew the consequences in the nature of what he was doing. Ultimately, there is no basis for him to even withdraw this plea at this time."
State v. Preciose, 129 N.J. 451, 462-63 (1992) (holding that the court should conduct an evidentiary hearing if the defendant establishes a prima facie case of ineffective assistance of counsel).
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In seeking PCR, defendant primarily relies on State v. Nash, 212 N.J. 518, 549-50 (2013), in which the Supreme Court reversed the denial of PCR relief to a defendant ten years after his trial because of a very plausible claim of newly discovered evidence that could have exonerated him. There, the defendant, a middle-school librarian, was charged with sexually assaulting a student on three occasions. Id. at 526. At trial, the defendant testified that the student, who had special needs, was always accompanied by an aide, implicitly placing before the jury the impossibility that he could have committed the charged offenses. Ibid. The school principal was called as a rebuttal witness, and stated that neither the victim nor any other student had a personal aide at all times and that there was only one aide for the entire school. Ibid. The jury convicted the defendant of the charges. Ibid. Prior to sentencing, the defendant moved for a new trial. Ibid. In support of the application, the defendant attached affidavits from two aides who regularly supervised the victim in the classroom, one of whom attested that she also supervised the victim "when he travelled throughout the school from period to period and to and from and during classes and activity periods such as 'Library.'" Id. at 531. The trial court did not conduct an evidentiary hearing and denied the new trial motion. Id. at 531-32. In a subsequent PCR petition, the court denied relief, concluding the uncalled witnesses would not have anything substantively new to present and that the evidence against the defendant was overwhelming. Id. at 534. The Court reversed, holding that the evidence was material, not cumulative, trial counsel's ability to discover the evidence earlier was probably thwarted by the school principal's gag order he imposed upon school personnel in connection with the case, and the newly discovered evidence was the type, had it been available, which was likely to have altered the outcome of the trial. Id. at 553.
These are not the circumstances here. First, the evidence was not newly discovered. At the sentencing, at which defendant was present, defense counsel, in presenting mitigating factors to the court, stated: "Finally, [defendant's] family[,] including his wife[,] supports him, stands by him in this matter[,] and the letter that I submitted to the [c]ourt I made the [c]ourt aware of the fact that the alleged victim signed a statement indicating that many . . . of the allegations were false." That letter, which trial counsel submitted to the court prior to sentencing, indicates that a copy was provided to defendant. Thus, trial counsel made defendant aware of his daughter's recantation of "many of the allegations" prior to sentencing. Assuming, however, defendant did not receive this letter, he was certainly present at sentencing when trial counsel, in advancing mitigating factors, advised the court that defendant's daughter claimed many of the allegations were false. Armed with this information more than twenty years ago belies defendant's present explanation in support of his PCR petition that "among the reasons I did not come forward earlier was the fact that I was unaware that the alleged victim tried to recant her previous false allegations."
PCR is New Jersey's analogue to the federal writ of habeas corpus. State v. Afanador, 151 N.J. 41, 49 (1997); Preciose, supra, 129 N.J. at 459. It is the vehicle through which a defendant may, after conviction and sentencing, challenge a judgment of conviction by raising issues that could not have been raised on direct appeal and, therefore, ensures that a defendant was not unjustly convicted. State v. McQuaid, 147 N.J. 464, 482 (1997). Petitions for such relief have time constraints for seeking such relief.
A PCR petition is time barred if not filed within five (5) years of the judgment or conviction, unless "the delay beyond said time was due to excusable neglect." R. 3:22-12 (the Rule). The time limits under the Rule are intended to achieve finality of judgments by encouraging "those believing they have grounds for post-conviction relief to bring their claims swiftly, and discourages them from sitting on their rights until it was too late for a court to render justice." State v. Mitchell, 126 N.J. 565, 576 (1992).
Defendant's delay in filing his petition does not meet the test for excusable neglect. As noted earlier, the evidence was not newly discovered, defendant had been made aware of the recantation efforts on the part of his daughter, at least as early as his sentencing on January 31, 1992. Thus, well-within the five-year time period during which his PCR petition should have been filed, defendant could have sought timely relief. Therefore, the trial court properly denied the PCR petition on procedural grounds.
Moreover, had the petition been timely filed, relief was not warranted based upon a claim of ineffective assistance of counsel. To prevail on such a basis for relief, one must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
"First, [a] defendant must show . . . . that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment. Second, [a] defendant must show that the deficient performance prejudiced the defense." Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). To establish prejudice, the defendant must show by "a reasonable probability" that the deficient performance "materially contributed to defendant's conviction[.]" Id. at 58.
Where a defendant establishes a prima facie claim of ineffective assistance of counsel, a court may conduct an evidentiary hearing. Preciose, supra, 129 N.J. at 462. The determination whether to hold an evidentiary hearing on an ineffective assistance of counsel claim is left to the sound discretion of the PCR judge. Ibid. "An evidentiary hearing . . . is required only where the defendant has shown a prima facie case and the facts on which he [or she] relies are not already of record." Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 3:22-10 (2014).
Defendant pled guilty to the endangering offense as part of a negotiated plea agreement that resulted in the dismissal of the more serious charges against him and for which he received a probationary sentence. Had he proceeded to trial and been found guilty of the first-degree offenses, he faced a minimum ten-year custodial sentence and at least five years on the second-degree offenses. In addition, he faced an eighty-five-percent period of parole ineligibility under the No Early Release Act (NERA) and possibly the imposition of consecutive sentences. See State v. Yarbough, 100 N.J. 627, 643 (1985). Further, prior to being indicted, defendant admitted he sexually molested his daughter in a statement he voluntarily provided to police on the same day police interviewed his daughter regarding her allegations.
In his certification in support of his PCR petition, defendant does not in any way suggest that his police statement was other than knowingly and voluntarily given. During oral argument before the PCR judge, defense counsel suggested there was some language barrier at the time defendant gave his statement to police, because English was not defendant's native language. In the statement, however, defendant stated he understood English, "recognized this form[,]" which detailed his constitutional rights, and read the form. Consequently, had the victim recanted, this inculpatory evidence, along with circumstantial evidence of defendant's opportunity to commit the offenses, independently provided a basis to prosecute defendant's commission of the offenses despite such a recantation. Finally, notwithstanding defendant's confession, defense counsel negotiated a favorable plea agreement on his behalf.
Our review of the record, in light of the standards that we have articulated and defendant's proofs, satisfies us that the factual finding of the PCR judge, who found "no basis that there was any deficient performance by trial counsel," is fully supported by evidence in the record, and we affirm his conclusion that defendant did not meet his burden of demonstrating the first prong of Strickland's test, requiring a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. We thus find it unnecessary to address Strickland's second prong, which requires evidence that counsel's deficient performance prejudiced the defense. Ibid.
Finally, turning to defendant's new trial motion, the trial court denied that motion as well, finding there was "no basis" for the relief sought and that the motion was "certainly, out of time." Rule 3:20-2 expressly provides that a motion for a new trial based upon "newly-discovered evidence may be made at any time[.]" Therefore, the trial court erred in concluding that this aspect of defendant's claims was untimely. Notwithstanding this error, the court properly concluded there was no basis for granting defendant a new trial.
First, as a matter of procedure, because defendant's judgment of conviction was based upon a guilty plea rather than a verdict following a trial, his new trial motion is the equivalent of a motion to withdraw his guilty plea. Rule 3:211, governing withdrawal of a guilty plea, does not have time constraints. Post-sentencing, however, a court will accord more weight to the State's interest in finality and apply a more stringent standard to a defendant's motion to withdraw his guilty plea. McQuaid, supra, 147 N.J. at 485. Thus, timing can be a significant consideration in assessing the strength of the reasons proffered in favor of withdrawal.
As the standards in Rules 3:9-3(e) and 3:21-1 suggest, efforts to withdraw a plea after sentencing must be substantiated by strong, compelling reasons. . . . In general, the longer the delay in raising a reason for withdrawal, or asserting one's innocence, the greater the level of scrutiny needed to evaluate the claim.
[State v. Slater, 198 N.J. 145, 160 (2009).]
In Slater, the Court held that four factors are to be considered and balanced in evaluating motions to withdraw a guilty plea: "(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused." Id. at 157-58. See also State v. O'Donnell, 435 N.J. Super. 351, 377-73 (App. Div. 2014) (explaining the differences between the Slater withdrawal factors and PCR claims of ineffective counsel). Measured under these standards, defendant's application lacks merit. The victim's recantation does not vitiate the knowing and voluntary confession given by defendant. Thus, although defendant asserts a claim of innocence, it is not a colorable claim of innocence. Defendant entered his guilty plea pursuant to a plea agreement and did not ask to withdraw his plea until after the time period for filing a PCR petition expired. Moreover, his asserted reasons for seeking withdrawal, at this juncture, almost twenty years after he plead guilty, are unpersuasive.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION