Opinion
DOCKET NO. A-1280-12T4
05-19-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHARLES NAUMANN, Defendant-Appellant.
Brian D. Driscoll, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Driscoll, on the brief). Patrick D. Isbill, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Mr. Isbill, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and Nugent.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Accusation No. 09-08-2892.
Brian D. Driscoll, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Driscoll, on the brief).
Patrick D. Isbill, Assistant Prosecutor, argued the cause for respondent (Warren W. Faulk, Camden County Prosecutor, attorney; Mr. Isbill, of counsel and on the brief). PER CURIAM
Defendant Charles Naumann appeals the order that denied his post-conviction relief (PCR) petition without an evidentiary hearing. He claims there are two reasons why he did not completely understand the consequences of his plea: he was "inevitably confused" by the plea forms which, as filled out by counsel, stated he would be subject to both community supervision for life and parole supervision for life; and the court did not explain the "stricter parole consequences of a sex offender sentence," the "consequences of Megan's Law," and the possibility that he could be civilly committed as a sexually violent predator after serving his sentence. Having considered defendant's arguments in light of the record and controlling law, we conclude that he did not establish a prima facie case that his counsel was ineffective. Accordingly, we affirm.
The record discloses the following facts. On April 23, 2009, defendant had consensual sexual intercourse with a girl who was thirteen years old. At the time, defendant was twenty-seven years old. Defendant waived indictment and the State charged him in an accusation with one count of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4). Defendant pled guilty in exchange for the State recommending a five-year custodial term "to run concurrent to [defendant's] violation of probation" and that defendant would be subject to Megan's Law.
Before pleading guilty, defendant signed five documents: a "Plea Form," a form entitled "Additional Questions for Certain Sexual Offenses Committed On or After December 1, 1998," a "Supplemental Plea Form for Sexual Offenses," a form entitled "Additional Questions for Certain Sexual Offenses," and a form entitled "Additional Question for Offenses Requiring DNA Testing."
The second document informed defendant that he was required to submit to a psychological examination to determine if his conduct in committing the offense was characterized by a pattern of repetitive and compulsive behavior and, if so, whether he was amenable to sex offender treatment. In addition to explaining the consequences of such a finding, the form also informed defendant that he could "challenge the findings . . . in a hearing and at the hearing you will have the right to confront the witnesses against you and to cross examine them and then present evidence on your own behalf." Adjacent to the form's seven paragraphs, each of which began with the interrogative phrase, "Do you understand," were the words "Yes" and "No." The word "Yes" was circled in response to each question, and defendant, his attorney, and the prosecutor all signed the form. The Supplemental Plea Form for Sexual Offenses included similar information, and defendant signed that form as well.
The form entitled "Additional Questions for Certain Sexual Offenses" included, among other questions, the following questions relevant to this appeal:
1. Registration
a) Do you understand that you must register with certain public agencies?2. Address Verification
[Yes] [No]
b) Do you understand that if you change residence you must notify the law enforcement agency where you are registered, and must re-register with the chief law enforcement officer of the municipality in which you will reside, or the Superintendent of State Police if the municipality does not have a chief law enforcement officer, no less than 10 days before you intend to reside at the new address?
[Yes] [No]
c) Do you understand that if you fail to register or re-register you may be charged with a third degree crime and receive a sentence of imprisonment of up to 5 years?
[Yes] [No]
d) Do you understand that you must provide the appropriate law enforcement agency with information about your routine access to or use of a computer or device with Internet capability? (if the offense was committed on or after February 25, 2008)
[Yes] [No]
e) Do you understand that if you fail to notify the appropriate law enforcement agency about your routine access to or use of a computer or device with Internet capability or a change in such use or access, you may be charged with a fourth degree crime and may receive a sentence of imprisonment of up to 18 months? (if the offense was committed on or after February 25, 2008)
[Yes] [No]
a) Do you understand that if you are pleading guilty to aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping pursuant to 2C:13-1c(2) or any attempt to commit any of these crimes and at sentencing the court finds that your conduct was characterized by a pattern of repetitive, compulsive behavior, you must verify your address with the appropriate law enforcement agency every 90 days or if the court finds your conduct is not characterized by a pattern of repetitive and compulsive behavior, you must verify your address annually?3. Notification
[Yes] [No]
b) Do you understand that if you provide false information concerning your residence or fail to verify your address you may be charged with a fourth degree crime and receive a sentence of imprisonment of up to 18 months?
[Yes] [No]
Do you understand that the requirement of registration may result in notification to law enforcement, community organizations, or the public at large, of your release from incarceration or presence in the community?
[Yes] [No]
4a. Community Supervision for Life ( only complete if the offense occurred before January 14, 2004). (If the offense occurred on or after January 14, 2004, the defendant should complete Question 4b, Parole Supervision for Life).
(1) Do you understand that if you are pleading guilty to the crime of aggravated sexual assault, sexual
assault, aggravated criminal sexual contact, kidnapping pursuant to 2C:13-1c(2), endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to 2C:24-4a, luring, or an attempt to commit any such offense, the court, in addition to any other sentence, will impose a special sentence of community supervision for life?4b. Parole Supervision for Life ( only complete if the offense occurred or or after January 14, 2004).
[Yes] [No]
(2) Do you understand that being sentenced to community supervision for life means that: you will be supervised for at least 15 years as if on parole, and subject to conditions appropriate to protect the public and foster rehabilitation, including, but not limited to counseling; Internet access or use; and other restrictions, which may include restrictions on where you can live, work or travel?
[Yes] [No]
(3) Do you understand that the restrictions on where you can live may include restrictions on residing in a home with minor children?
[Yes] [No]
(1) Do you understand that if you are pleading guilty to the crime of aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping pursuant to 2C:13-1c(2), endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of a child pursuant to 2C:24-4a, endangering the welfare of a child
pursuant to 2C:24-4b(3), luring or an attempt to commit any of these offenses and the offense occurred on or after January 14, 2004, the court, in addition to any other sentence, will impose a special sentence of parole supervision for life?(2) Do you understand that being sentenced to parole supervision for life means that upon release from incarceration or immediately upon imposition of a suspended sentence you will be supervised by the Division of Parole for at least 15 years and will be subject to provisions and conditions of parole, including conditions appropriate to protect the public and foster rehabilitation, such as, but not limited to, counseling, Internet access or use, and other restrictions which may include restrictions on where you can live, work, travel or persons you can contact?
[Yes] [No]
[Yes] [No](3) Do you understand that the restrictions on where you can live may include restrictions on residing in a home with minor children?
[Yes] [No](4) Do you understand that if you violate a condition of parole supervision for life, your parole may be revoked and you can be sent to prison for 12 to 18 months for each revocation that occurs while you are being supervised and that the prison term you receive cannot be reduced by commutation or work credits?
[Yes] [No](5) Do you understand that if you violate a condition of parole supervision for life and you are indicted and convicted for that violation, you will receive a
sentence of imprisonment of up to 18 months and that the sentence you receive could be in addition to any prison term you may receive from the Parole Board for a violation of parole supervision for life?5. Internet Posting
[Yes] [No]
Do you understand that as a result of your conviction your name, age, race, sex, date of birth, height, weight, eye color, any distinguishing scars or tattoos you have, your photograph, the make, model, color, year and license plate number of any vehicle you operate, the street address, zip code, municipality and county in which you reside and a description of the offense for which you are pleading guilty, may be publicly available on the Internet?7. Civil Commitment
[Yes] [No]
Do you understand that if you are convicted of a sexually violent offense, such as aggravated sexual assault, sexual assault, aggravated criminal sexual contact, felony murder if the underlying crime is sexual assault, an attempt to commit any of these offenses, or any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the offense should be considered a sexually violent offense, you may upon completion of your term of incarceration, be civilly committed to another facility for up to life if the court finds, after a hearing, that you are in need of involuntary civil commitment?
[Yes] [No]
As noted, the "Yes" beneath each question and each subpart of each question was circled. The form was signed by defendant, defense counsel, and the prosecutor.
The judge who accepted defendant's plea questioned him to assure that he understood the plea's consequences. The following colloquy occurred between the court and defendant, defendant answering on his oath:
THE COURT: And you can read and understand English?
THE DEFENDANT: Yes.
THE COURT: And the reason I ask you is there's a plea - a plea form in front of you. There's a four-page plea form, plus a supplemental sex offense form. Do you see those documents?
THE DEFENDANT: Yes.
THE COURT: Did you supply the information in those documents to your lawyer so that he could complete the forms?
THE DEFENDANT: Yes.
THE COURT: And after they were completed, did you review them with him?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with their content?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions about them?
THE DEFENDANT: No.
THE COURT: After they were completed, did you sign and initial each page?
THE DEFENDANT: Yes, I did.
The judge accepted defendant's plea and subsequently sentenced him to a five-year custodial term concurrent to the custodial term for his probation violation, and imposed appropriate penalties and assessments. The judge also ordered defendant to comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to 23, and imposed a special sentence of parole supervision for life, N.J.S.A. 2C:43-6.4.
Defendant did not file a direct appeal, but filed his PCR petition a year after the date he was sentenced. In his supporting affidavit, defendant asserted that he "did not want to plea[d] guilty and . . . gave [his attorney] a list of witnesses to interview but he never interviewed the witnesses[.]" Defendant averred that he told his attorney he would "take a deal for five years on both cases since I was looking at five years on the violation of probation but only if there was no community supervision for life or parole for life."
According to defendant, his attorney subsequently informed him "that the prosecutor would agree to a sentence of five years flat on the new charge and three years flat on the violation of probation concurrent but that I had to plead guilty to a second-degree sexual assault charge. I agreed to the deal and completed a large pile of paperwork with my lawyer."
Defendant also claimed in his affidavit that he wanted to serve his sentence at Avenel because he was scared of going to State prison; his lawyer told him he could only serve his sentence at Avenel if the evaluation from Avenel recommended that he needed treatment for his behavior; and that based on the information from his attorney, he "told the evaluator at Avenel several incorrect things about [his] sexual behavior" which he now regrets because he fears civil commitment.
Lastly, defendant asserted in his affidavit that his attorney never told him that he would be subject to "community supervision for life" or that he could be civilly committed. He learned about those consequences of his plea when he began serving his sentence at Avenel. He alleged his attorney was ineffective for not providing him with discovery before he entered his plea, for telling him that he was indicted when he had not been indicted, for failing to tell him he could challenge the report concerning his status as a compulsive and repetitive sex offender, and for failing to explain all consequences of his plea, including "community supervision for life" and the possibility of being committed civilly following his sentence.
The judge who heard defendant's PCR petition denied it without an evidentiary hearing. In explaining his reasons for denying the petition, the judge did "not find defendant's sworn certification attached to his supplemental PCR brief credible or trustworthy." The judge explained that when sentenced, "defendant had three prior Superior Court and Eleven Municipal Court convictions." The judge further explained that in his certifications "defendant, essentially, claims he perjured himself at his plea and sentencing hearing in order to get the punishment he felt was favorable to him at the time." The court concluded that "defendant has demonstrated a capacity to mislead and manipulate the criminal justice system for his own benefit." For those reasons, the court did not "give [defendant's] certification statement any weight." The judge also found that "defendant was made fully aware prior to entering his guilty plea of the parole supervision for life and involuntary commitment consequence of his plea . . . to sexual assault." The judge reviewed the questions on the plea forms and noted that at the plea hearing, defendant, "under oath, admitted that he supplied the information contained within those forms; that he reviewed the forms with his attorney; that he was satisfied with the content of the forms and had no further questions . . . about them; and that he signed and initialed each page of his plea agreement." The court further noted that, at sentencing, the judge who had accepted defendant's plea again advised him that he would be placed on parole supervision for life and that he must comply with the requirements of Megan's Law. Defendant appealed.
Defendant submits the following points for our consideration:
POINT I: THE PCR COURT ERRED IN DENYING AN EVIDENTIARY HEARING AND DENYING THE PETITION.
POINT II: THE DEFENDANT WAS MISINFORMED BY THE PLEA FORMS OF THE PROVISION OF SUPERVISION FOR LIFE. (RAISED IN PART BELOW).
POINT III: THE COURT FAILED TO ADVISE DEFENDANT OF THE CONSEQUENCES OF HIS PLEA.
We begin with well-settled principles concerning our review of a trial court's order denying a PCR petition.
The Sixth Amendment guarantees to persons accused of crimes the right to effective assistance of legal counsel in their defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a claim that counsel was not effective, a convicted defendant must satisfy the two-part test enunciated in Strickland: first, that counsel's performance was deficient; second, that the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). The defective performance is prejudicial if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must establish "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" Ibid. (alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).
The court hearing a PCR petition may, in its discretion, conduct an evidentiary hearing. R. 3:22-10(b); State v. Preciose, 129 N.J. 451, 462 (1992). "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective- assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Ibid. To establish a prima facie claim, however, a defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). "As in a summary judgment motion, the motion judge should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Ibid.
We agree with defendant that the trial judge should not have considered defendant's criminal record as undermining his credibility. That runs counter to the requirement that the judge hearing a PCR petition "should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Cummings, supra, 321 N.J. Super. at 170. Nevertheless, a judge is not required to ignore testimony that a defendant has given under oath. As the Supreme Court has noted, representations made by a defendant at plea hearings concerning the voluntariness of the decision to plead, as well as any findings made by the trial court when accepting the plea, constitute a "formidable barrier" which defendant must overcome before he will be allowed to withdraw his plea. Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct. 1621, 1629, 52 L. Ed. 2d 136, 147 (1977). That is so because "[s]olemn declarations in open court carry a strong presumption of verity." Id. at 74, 97 S. Ct. at 1629, 52 L. Ed. 2d at 147; DiFrisco, supra, 137 N.J. at 452; State v. Simon, 161 N.J. 416, 444 (1999).
In any event, we owe no deference to the judge's application of law to the facts presented by defendant in his PCR petition. We conclude from our review of those facts that defendant did not establish a prima facie case that his trial counsel was ineffective.
In the affidavit he filed in support of his PCR petition, defendant alleged that he told his attorney he "would be willing to take a deal for five years on both cases since I was looking at five years on the violation of probation but only if there was no community supervision for life or parole for life." Thus, by defendant's own admission, he was aware of the concepts of community supervision for life and parole supervision for life before he entered his plea. Defendant also stated in his affidavit that he was never told by his lawyer "prior to completing the plea paperwork" that he was subject to community supervision for life as part of the sentence or that he could be civilly committed. Conspicuously absent from defendant's affidavit is any discussion about what occurred when he signed the plea forms, or why he told the court at his plea hearing, after taking an oath to tell the truth, that he supplied the information in the plea forms to his lawyer, reviewed the forms with counsel after completing them, was satisfied with their content, signed the forms after completing them, and had no questions of the court about the forms.
Defendant argues in Point II of his brief that he was misinformed by the plea forms, and by his counsel, because counsel circled both the questions concerning community supervision for life and the questions concerning parole supervision for life. Defendant points out that two sections in the plea form concerning parole supervision for life "set forth additional penal consequences for any violation of parole supervision for life," and the consequence was "instead of being informed by the plea forms, defendant was inevitably confused by them. He was told that he would be placed both on and Community Supervision for Life and Parole Supervision for Life."
Defendant never addressed this issue in his affidavit, which is evident from the use of the conditional "if" in his brief: "If defendant assumed that the two provisions were basically the same, he would fail to realize that the program which actually applied to him, Parole Supervision for Life, contained additional serious mandatory penal consequences for any violations." However, we cannot speculate about what defendant could have, but failed to say in his affidavit. And if in fact defendant reviewed and understood the content of his plea form, as he so swore at his plea hearing, then his argument fails, because his own testimony was that he understood the provisions of both community supervision for life and parole supervision for life. Defendant has not explained why, if he pled guilty believing both applied, he would not have pled guilty if he had known that only parole supervision for life applied. Stated differently, defendant has not satisfied the second Strickland prong and therefore has failed to establish a prima facie claim.
Defendant also argues that he was not informed of the consequences of violating the terms of parole supervision for life, or that he could be civilly committed as a sexually violent predator following the completion of his custodial term. However, the plea forms inform him of those consequences. Once again, defendant has failed to address his testimony, under oath, that he reviewed the forms, signed them, and understood them. His failure to address his own sworn testimony that now is contradicted by nothing more than unsworn statements in his brief is fatal to his ineffective assistance claim.
Defendant also alludes to other arguments he made in his PCR petition. Those include his counsel's failure to timely provide him with discovery; misadvising him that he had been indicted for sexual assault; failing to request a hearing challenging the Department of Correction's evaluator's recommendation that he serve his sentence at the Adult Diagnostic Treatment Center at Avenel; failing to investigate and take statements from defendant's proposed defense witnesses; and failing to present evidence that the alleged victim refused to have a rape kit examination performed. He makes those arguments in the context of his assertion that he should have been entitled to an evidentiary hearing. Based on our review of the record, we find those claims to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
Most of defendant's allegations are refuted by the plea forms and plea colloquy. For example, defendant and defense counsel signed a form waiving indictment, and at defendant's plea hearing the judge told him explicitly that he had the right to have the matter presented to a grand jury and to have an indictment before he entered a plea. As to defense counsel's failure to interview witnesses, defendant has not presented the statements of any witnesses that would have testified on his behalf. Unsupported assertions and unsworn conclusory statements that contradict the defendant's sworn testimony are inadequate to establish a prima facie case of ineffective assistance of counsel. Cummings, supra, 321 N.J. Super. at 170. Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION