Opinion
DOCKET NO. A-2986-14T1
09-07-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. J.T.P., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Koblitz. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-02-2172. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Gurbir S. Grewal, Acting Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Defendant J.T.P. appeals from the order of the trial court denying his post-conviction relief (PCR) petition. We affirm.
Pursuant to a negotiated agreement with the State, on October 4, 2011, defendant J.T.P. pled guilty to counts three and four of Bergen County Indictment No. 10-12-02172, which charged him with first degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1),(2)(a). The victim was defendant's stepdaughter. Defendant admitted he had sexual intercourse with her on two occasions, in October 2006 and October 2009, when she was less than thirteen years old. Under the plea agreement, the State agreed to dismiss the remaining counts in the indictment and recommend to the court that defendant be sentenced to a term of ten years, with an eighty-five percent period of parole ineligibility and five years of parole supervision as mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On April 13, 2012, the trial judge sentenced defendant to a term of nine years, subject to NERA, and dismissed the remaining counts in the indictment. Defendant appealed the sentence imposed by the court under the summary process provided pursuant to Rule 2:9-11. After considering the arguments of counsel, we issued an order affirming the sentence. State v. [J.T.P.], No. A-4552-11 (App. Div. Sept. 27, 2012).
On August 26, 2013, defendant filed this pro se PCR petition alleging ineffective assistance of counsel. In a handwritten statement, defendant alleges he "found discrepancies in the case file that [his] public defender refused to go over with [him]." Defendant refers to the charges in counts two and five of the indictment, which were dismissed under the terms of the plea agreement. In a separate handwritten statement attached to the PCR pro se packet, defendant claims he was coerced into pleading guilty "without proper representation." He also alleges his private attorney met with him to review his case only "one time over a period of seven months."
The trial court appointed an attorney assigned by the Public Defender's Office to represent defendant after he expressed dissatisfaction with his private counsel's performance. Defendant's allegations of ineffective assistance involved the level of attention he received from the attorney the Public Defender's Office assigned to represent him. The PCR court assigned an attorney to represent defendant in prosecuting this petition. PCR counsel filed an amended petition that identifies certain discrepancies in the indictment related to the dates on which defendant sexually assaulted the victim.
As an example, PCR counsel argued that count four in the indictment identified October 26, 2009 and October 31, 2010, as the two dates on which defendant sexually assaulted his stepdaughter. The victim also claimed the sexual assaults stopped nine months before defendant was arrested. Since defendant was arrested on July 28, 2010, PCR counsel argued defendant was not free to sexually assault the victim on the dates identified in count four of the indictment. Through this timeline analysis, PCR counsel argued the entire indictment was faulty and should have been dismissed. Defendant claims this timeline defense was not pursued because of defense counsel's inattentiveness and failure to meet with defendant to review this evidence.
Defendant also claimed his attorney was ineffective in failing to move to suppress an inculpatory statement he gave to law enforcement investigators after his arrest. Defendant claimed he was not properly apprised of his rights under Miranda and was coerced into giving a statement when the interrogators told him he would never see the son he had with the victim's mother unless he confessed. The boy was seven years old at the time.
The matter came before the PCR court on August 4, 2014. After hearing the arguments of counsel, the PCR judge found defendant had not established a prima facie case of ineffective assistance of counsel and denied the petition without conducting an evidentiary hearing. The PCR judge explained her decision in a memorandum of opinion. Defendant now appeals raising the following arguments:
POINT I
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.
POINT II
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4.
We reject these arguments and affirm. A PCR petition is our State's analogue to the federal writ of habeas corpus. See State v. Afanador, 151 N.J. 41, 49 (1997). We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
A defendant must first demonstrate 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. Second, she or he must show there exists "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. "In determining a claim of ineffective assistance of counsel in a case in which a defendant pled guilty, 'the issue is whether it is ineffective assistance of counsel for counsel to provide misleading, material information that results in an uninformed plea, and whether that occurred here.'" State v. Smullen, 437 N.J. Super. 102, 108-09 (App. Div. 2014) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139-40 (2009)).
A court presented with a PCR petition is not obligated to conduct an evidentiary hearing. State v. Jones, 219 N.J. 298, 311 (2014). Rule 3:22-10 confers upon the court the discretion to conduct such a hearing only "if a defendant has presented a prima facie case in support of PCR." Ibid. Once a prima facie case has been established, the claims of ineffective assistance of counsel ordinarily require consideration of "evidence that lie[s] outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992).
Here, defendant has not presented a prima facie case of ineffective assistance under Strickland. Any inconsistency or misstatements about the exact date defendant sexually assaulted his then eleven-year-old stepdaughter were cleared up by the detailed description of these events defendant provided at the plea hearing. At the time his defense attorney negotiated this plea agreement, defendant was facing a six-count indictment that included two counts of first degree aggravated sexual assault. On these two counts alone defendant had a penal exposure of forty years in State prison with thirty-four years of parole ineligibility under NERA. The plea agreement his trial attorney ably negotiated reduced this penal exposure to ten years; this is half the maximum sentence defendant could have received if he had been convicted of only one of these two first degree crimes. Defendant was ultimately sentenced to a term of nine years subject to NERA.
Defendant's attacks on his trial attorney's performance based on his failure to file a motion to suppress the statement he gave to police interrogators are equally without merit. Other than his own self-serving statement about police misconduct, the record does not reveal, and defendant has not come forward with any evidence that provides a reasonable basis to conclude a motion to suppress his inculpatory statement would have been successful.
Finally, defendant has not produced any competent evidence to question the legal viability of his guilty plea. The record does not show defense counsel provided defendant with misleading, material misinformation at the time he pled guilty. Defendant has thus not presented sufficient evidence to meet the first prong under Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and thus does not fall within the paradigm established by the Court in Nuñez-Valdéz, supra, 200 N.J. at 139-40.
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, 478-79, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694, 726 (1966).