Opinion
DOCKET NO. A-5394-07T4
08-09-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LAWRENCE v. WILDER, SR., Defendant-Appellant.
Law Offices of Baumann & Viscomi, attorneys for appellant (Raymond Kramkowski, on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez and LeWinn.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FO-20-163-08E.
Law Offices of Baumann & Viscomi, attorneys for appellant (Raymond Kramkowski, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Sara B. Liebman, Assistant Prosecutor, on the brief). PER CURIAM
Defendant appeals from the May 8, 2008 judgment finding him guilty of contempt of a domestic violence final restraining order (FRO), N.J.S.A. 2C:29-9(b), and sentencing him to pay fines totaling $125. We affirm.
On August 19, 1998, M.T. obtained an FRO against defendant. Among its prohibitions was that defendant was to have no form of contact or communication with M.T.
On September 25, 2007, based upon a complaint by M.T., the Roselle Park Police Department issued a warrant charging defendant with going to M.T.'s residence on the previous day, "yelling 'hello' th[e]n 'what you don't want to talk to me.'" He was charged with harassment, N.J.S.A. 2C:33-4(c), and fourth-degree violation of a court order, N.J.S.A. 2C:29-9(b). Defendant was a resident of Maryland at that time. A bench warrant issued; defendant was in custody at the time of trial on May 8, 2008.
On that date defendant appeared with counsel and stated his decision to plead guilty to contempt of an FRO; the State agreed to dismiss the harassment charge and recommend a sentence of $125 in mandatory penalties. The judge questioned defendant as to the knowing and voluntary nature of his plea, and his understanding of the rights he waived by deciding to plead guilty.
The prosecutor then questioned defendant as to the factual basis for his plea and the following colloquy ensued:
Q. [I]sn't it true that on September 24[] of 2007, you knew that there was a . . . restraining order saying that you areThe judge thereupon called a recess to permit defendant and his attorney to confer and "clear up any ambiguities . . . ."
not to have any contact whatsoever with . . . [M.T.]?
A. I knew there was an order. I didn't know it was still in effect.
Q. Are you saying . . .
A. What I'm saying is that my contempt was unintentional.
Following the recess, defendant acknowledged that he had been served with the FRO on August 19, 1998, and at that time he had been advised the FRO remained in full force and effect "until further order of the Superior Court[,]" and that it could not be "changed by either party without obtaining a written court order." He further acknowledged that he never received any court order dismissing or amending the FRO in any manner. The questioning continued:
Q. So on September 24[] of 2007, you still knew that this final restraining order was in effect, correct?The judge concluded that "a factual basis exists to find defendant violated the terms of the [FRO], specifically the offense of contempt." He imposed sentence and recalled the bench warrant.
A. Yes, I did.
Q And you knew that you were not to have any contact with [M.T.]. Isn't that correct?
A. Yes, I did.
Q. And, yet, on [that date] you did in fact have contact with [M.T.]. Isn't that correct?
A. That is correct.
Q. By saying hello to her. Isn't that correct?
A. Yes. And also wishing her a Happy Birthday.
Q. But you . . . knew that you weren't supposed to do that.
A. Yeah.
Q. Isn't that correct?
A. Yeah.
On appeal, defendant raises the following contentions for our consideration:
POINT IHaving reviewed these contentions in light of the record and the controlling legal principles, we discern no basis to warrant the withdrawal of defendant's guilty plea to contempt of an FRO.
THE DEFENDANT IS ENTITLED TO A WITHDRAWAL OF THE GUILTY PLEA BASED UPON THE FACTORS STATED IN [STATE V. SLATER, 198 N.J. 145 (2009)]
POINT II
THE DEFENDANT IS ALSO ENTITLED TO A WITHDRAWAL OF THE GUILTY PLEA BASED UPON INEFFECTIVE COUNSEL AND OTHER REASONS
In the statement of facts in his brief, defendant contends that it is clear he entered his guilty plea "under duress, . . . [and] was not fully advised of the charges and what was required to prove the charges beyond a reasonable doubt." Such contentions are not supported by the record and, therefore, are clearly inappropriate in the "statement of facts material to the issues on appeal." R. 2:6-2(a)(4). Defendant further asserts in this section that he "filed a number of documents and motions" supporting these contentions. He refers to his Civil Case Information Statement filed with his Notice of Appeal to this court, in which he asserted that: (1) he was told he would not be given bail unless he pled guilty; and (2) M.T. "knowingly traveled to Maryland and violated the [FRO] multiple times . . . ."
Defendant also refers to a letter he sent to the court in November 2007, "stating that his violation of [the FRO] was unintentional" and that M.T. had violated the FRO many times. He includes a copy of this letter in his appendix, which is clearly improper as it was not part of the record below. R. 2:6-1(a)(2). In fact, defendant includes voluminous documents in his appendix which were not part of the record below. We do not consider any of them in connection with his contentions.
In his legal argument, defendant discusses the factors governing the withdrawal of guilty pleas set forth in Slater, supra, 198 N.J. at 157-58, and supports that discussion with reference to matters and documents that are outside the record. We are bound by the record before us in assessing the merits of his claims. We note that defendant did not move to withdraw his plea before the trial court. Rather, he asserts for the first time on appeal that a basis exists to support that request. We discern no such basis in the record before us.
With respect to a "colorable claim of innocence," id. at 157, defendant asserts his contempt was unintentional "and that because of the actions of [M.T.]," he thought the FRO was no longer in effect. At his plea, however, defendant acknowledged that he never received a court order dismissing or modifying the 1998 FRO. He never asserted at trial any of the other allegations he now attempts to raise on appeal. Based on the record, we find no merit to this claim
The "nature and strength of [his] reasons for withdrawal[,]" id. at 157-58, likewise are unsupported by the record. The plea was entered pursuant to a plea agreement. Id. at 158. Whether the State would be prejudiced by a withdrawal, ibid., is immaterial as defendant failed to meet the first three criteria. Id. at 162.
Defendant's claim of ineffective assistance of trial counsel is raised in one paragraph, in which his only assertion is "that there was not sufficient time for the attorney to consult with . . . [him] and adequately explain . . . the nature of the proceedings and also the effects of the guilty plea." We note that all of the colloquy with defendant at the time of the plea was with the judge and the prosecutor. However, defendant acknowledged on the record that he was satisfied with the services of his attorney, and, furthermore, had an opportunity to consult with his attorney before resuming the factual basis for his plea.
A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.
The Strickland test applies to challenges to guilty pleas based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). To meet the second prong of the test, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.
We discern no basis to conclude either that counsel's performance was deficient or that, even if it was, defendant was in any way prejudiced by that performance. Defendant clearly admitted that he communicated with M.T. in September 2007, and that he never saw a court order dismissing the FRO. He was, therefore, charged with the knowledge that it remained in full force and effect until and unless dismissed by a subsequent court order.
Defendant's allegation that he had a "psychiatric disability" at the time of the plea is similarly based on documents that were not part of the trial record. Defendant never raised this claim as a defense at trial. We will, therefore, not consider it. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION