Opinion
DOCKET NO. A-3436-09T2
02-03-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. R.E., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief). Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes and Graves.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Accusation No. 06-01-0109.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).
Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant R.E. appeals from an order dated January 29, 2010, denying his petition for post-conviction relief (PCR). We affirm.
On January 11, 2006, defendant waived indictment and pled guilty to a one-count accusation charging fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). In exchange for defendant's guilty plea, the State agreed to recommend a five-year term of non-custodial probation with credit for time served. The plea agreement also specified that defendant would be released on his own recognizance pending sentence.
On February 17, 2006, the court sentenced defendant in accordance with the plea agreement, and defendant received thirty-nine days of jail credit. During his sentencing hearing, defendant advised the court that he was not employed because he was "disabled" and "ill." In addition, defendant stated: "I'm terminal. I got approximately two years left."
According to the adult presentence report, defendant indicated "he was diagnosed with a brain tumor, stomach cancer, heart murmur, and high blood pressure." The presentence report also noted that defendant had served a state prison sentence for kidnapping and that he was "a registered sex offender."
Defendant filed a notice of appeal that was argued on January 10, 2007, pursuant to Rule 2:9-11. We affirmed defendant's sentence and the Supreme Court denied defendant's petition for certification on May 29, 2007.
Defendant then filed a PCR petition dated July 20, 2007.
In paragraph eight of the petition, defendant stated: "[The] plea agreement did not include [an agreement] to raise tier status from 2 to 3 tier, [and] cause me to wear [a] bracel[e]t around [my] leg and carr[y a] 30lb box for the rest of my life. This was done 1 year after [the] plea agreement." Additionally, when the matter was heard on February 22, 2008, defendant testified: (1) he would not have accepted the plea if he had known his tier classification would change from tier two to tier three; (2) his attorney told him that the plea would not affect his status under Megan's Law; and (3) he was not guilty of the offense.
In an oral decision on February 22, 2008, the PCR court found that defendant had "minimal credibility" because his testimony at the PCR hearing was contradicted by his testimony when he entered his plea. The court also found that defendant "did not want to go to trial," and he knew the entry of the plea would "have an impact" on his Megan's Law status. Therefore, the court denied defendant's application for relief.
On appeal to this court, defendant raised the following arguments:
State v. R.E., No. A-4655-07 (App. Div. Dec. 4, 2009).
POINT I
THE PCR COURT SHOULD HAVE GRANTED THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF ON THE BASIS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
POINT I(A) DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO THE FAILURE OF ALL PRIOR COUNSEL TO RECOGNIZE THAT THE ACCUSATION FILED AGAINST THE DEFENDANT WAS DEFECTIVE IN THAT IT DID NOT CHARGE THE DEFENDANT WITH A CRIME. (NOT RAISED BELOW).
POINT II
DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED, THE JUDGMENT SHOULD HAVE BEEN VACATED, AND THE NOT GUILTY PLEA SHOULD HAVE BEEN REINSTATED.
In our prior opinion, we noted that the PCR court "failed to fully import the detailed analysis of State v. Slater, 198 N.J. 145 (2009) into the ineffective assistance of counsel calculus" because the PCR hearing was conducted before Slater was decided. Id. at 2-3. Thus, we reversed and remanded to allow the PCR court to apply the four-factor Slater test and "to explore whether, in light of Slater and what we have determined regarding the performance of defendant's former counsel, defendant should be entitled to withdraw his guilty plea." Id. at 16.
Defendant's counsel at the plea hearing and sentencing was the only witness to testify at the remand hearing conducted on January 29, 2010. He testified he was aware at the time of the plea that defendant was subject to Megan's Law. However, counsel did not recall whether he discussed with defendant the impact of his plea on his tier classification. Nonetheless, counsel testified that defendant's status under Megan's Law was not "a deciding factor in the acceptance of the plea." Counsel also discussed the State's proofs with defendant and the fact that he would be "facing far more serious charges" if the State located the victim:
I make sure the client understands . . . here's the deal that's being offered to you and here are the reasons, at least if I have the reasons that I can articulate for the deal, especially in a case like this, because the charges as they were initially presented were far more serious, it looks like at the very least a second-degree charge.
But, again, knowing the players involved and the nature of this supposed victim and the fact that the victim was supposedly a male prostitute from Philadelphia[, i]t was highly unlikely they were going to find this person. And, again, figuring the State recognized this and obviously they did recognize it because they . . . agreed almost immediately to the terms that ended up on paper in the plea agreement.
So . . . I made it clear to him what the consequences would be if the case went to indictment and ultimately to trial and I remember being fairly blunt about it. In a nutshell, I advised [R.E.], you can wait this out, you can't make bail on this given
the nature of your background and the nature of these offenses and [you can either] stay in jail until the case gets to trial, because it's not likely you're going to make bail or until they decide they can't find a victim or it was that we can get him into court and he made the choice to resolve the case.
When asked if defendant took the plea "because he was in fact guilty" or because he "wanted to get out of jail," counsel replied: "I know he wanted to get out of jail. I know he came into the courtroom after having signed the plea papers and put his hand on the Bible and said, 'I'm guilty and this is what I did.'"
The PCR court found counsel's testimony credible. In a comprehensive nineteen-page written decision, the PCR court analyzed each of the four Slater factors to assess whether defendant was entitled to withdraw his guilty plea. The court determined that defendant failed to assert a colorable claim of innocence because he failed "to articulate specific facts, or any facts at all, to support his claim of innocence." The court also rejected defendant's claim that his conviction should be reversed because of the ineffective assistance of counsel:
The defendant entered into the plea agreement knowingly and voluntarily, providing a sufficient factual basis for establishing his guilt. This Court finds no indication that defendant ever considered the indirect consequences of his plea on his then Megan's Law status, prior to pleading
guilty, though having knowledge of the factors involved in classification by virtue of his prior Megan's Law proceedings. Although counsel was deficient for failing to inform defendant of indirect consequences of the plea, this was a non-factor in defendant's decision to accept the plea agreement and therefore did not materially prejudice defendant in his decision to plead guilty. The Court finds the defendant's argument for ineffective assistance of counsel meritless, under the analysis of the materiality prong of Slater. Furthermore, the defendant does not satisfy his burden of demonstrating a manifest injustice to withdraw his guilty plea.
On appeal from the denial of his PCR petition, defendant presents the following argument:
POINT I
THE PCR COURT'S FINDING THAT THE ISSUE OF MATERIALITY WAS MOOT WAS IN ERROR WHERE DEFENDANT DID NOT HAVE ANY DISCOVERY PRIOR TO ENTERING HIS GUILTY PLEA, HE PLEADED GUILTY TO GET OUT OF JAIL IMMEDIATELY, HE NEVER ADVISED HIS ATTORNEY THAT HE WAS GUILTY PRIOR TO ENTERING HIS PLEA, AND [HE KNEW] THAT IF PCR WERE GRANTED HE FACES THE POSSIBILITY OF A SECOND-DEGREE INDICTMENT AND CONVICTION VERSUS A FOURTH-DEGREE.
We have concluded from our examination of the record and the applicable legal principles that this argument is without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated by Judge Irvin Snyder in his written decision dated January 29, 2010, with the following comments.
"A reviewing court is required to affirm the findings of the trial court if they could reasonably have been reached on sufficient credible evidence in the record." State v. Nunez-Valdez, 200 N.J. 129, 141 (2009). Furthermore, we are mindful that we must defer to findings by a trial judge that are substantially influenced by the judge's "'opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We will not disturb a trial judge's findings and conclusions unless they are so clearly mistaken and so plainly unwarranted "that the interests of justice demand intervention and correction." Johnson, supra, 42 N.J. at 162.
In the present matter, the PCR court found that defendant was not a credible witness. In addition, the court found that any failure by counsel to inform defendant of the impact of his plea on his Megan's Law status was not a material factor in defendant's decision to plead guilty. These findings are fully supported by the record, and we agree defendant failed to satisfy the prejudice prong of the Strickland/Fritz test. See State v. Howard, 110 N.J. 113, 123 (1988) (stating that a guilty plea will not be vacated "if knowledge of the consequences would not have made any difference in the defendant's decision to plead").
The two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
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Affirmed.