RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0273-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
P.M.B.,
Defendant-Appellant. ______________________________
Submitted August 15, 2017 – Decided September 27, 2017
Before Judges Messano and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 10- 04-0183.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).
John T. Lenahan, Salem County Prosecutor, attorney for respondent (Derrick Diaz, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant P.M.B. pled guilty to first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a), admitting to anally penetrating his stepson who was under the age of thirteen at the
time. The judge sentenced defendant to a seven-year term of
imprisonment, subject to an 85% period of parole ineligibility
under the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant
filed a pro se petition for post-conviction relief (PCR), alleging
numerous trial errors and the ineffective assistance of counsel
(IAC). The judge, who was the same judge that accepted defendant's
guilty plea and imposed sentence, appointed PCR counsel.1
During oral argument on the petition, defendant contended
that trial counsel failed to adequately review discovery with him
and "pushed him" into pleading guilty. Defendant also argued that
the plea form contained trial counsel's representation that he
would ask the judge to impose a lesser period of incarceration.
However, at sentencing, counsel withdrew any request for a lesser
sentence, explaining defendant was found to have compulsive sexual
behaviors, the Adult Diagnostic and Testing Center at Avenel
(Avenel) recommended he receive treatment, and defendant
affirmatively stated that he wished to avail himself to the
treatment. Lastly, defendant argued that trial counsel failed to
1 Defendant's direct appeal was limited to his sentence, and we affirmed but vacated the restitution award. The PCR judge's written opinion indicates the restitution award was vacated on remand.
2 A-0273-15T2 provide adequate advice regarding defendant's ability to have
parenting time with his biological daughter after completing his
sentence. PCR counsel referenced a letter to defendant, written
by trial counsel approximately five months after sentencing.2
The judge ordered a plenary hearing on the PCR petition.
Trial counsel and defendant both testified. In his written opinion
following the evidentiary hearing, the judge concluded defense
counsel was more credible than defendant was. Based upon counsel's
testimony, the plea forms and the colloquy at the time of
defendant's guilty plea, the judge found defendant was fully aware
of the consequences of his guilty plea, including limits on
defendant's "contact with children." The judge also found that
trial counsel adequately met with defendant and reviewed the
discovery in the case and provided correct information regarding
defendant's sentence exposure. Furthermore, the judge rejected
defendant's assertion that his wife had a vendetta against him and
2 The letter is in the State's confidential appendix. Addressed to defendant, it provides in full:
All the information you're looking for should be in the Pre-Sentence Report I previously forwarded to you. Obviously there is no contact with your victim. There was no prohibition on future visits with your other children.
3 A-0273-15T2 coerced the victim to "fabricate the allegations" against
defendant. The judge accepted counsel's determination that the
State had an "extremely strong case."
Lastly, the judge concluded that even if trial counsel should
have advocated for a lesser period of incarceration, defendant
suffered no prejudice. The judge noted that defendant was
sentenced as a second-degree offender at the "midpoint of the
second degree range." Implicitly, the judge concluded he would
have imposed the same sentence even if counsel had asked for a
lesser period of incarceration.
The judge entered an order denying the petition, and this
appeal followed.
Defendant argues the judge erred in dismissing the petition
because he established trial counsel provided ineffective
assistance in that counsel failed to properly investigate the
case, gave him incorrect advice regarding the consequences of his
guilty plea and failed to argue for a lesser sentence. As a
result, defendant did not knowingly and voluntarily enter his
guilty plea.
The standards that guide our review are well-known. To
establish an IAC claim, a defendant 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
4 A-0273-15T2 by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
First, he must demonstrate "counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed . . . by
the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466
U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
To satisfy prong one, [a defendant] ha[s] to "overcome a 'strong presumption' that counsel exercised 'reasonable professional judgment' and 'sound trial strategy' in fulfilling his responsibilities." "[I]f counsel makes a thorough investigation of the law and facts and considers all likely options, counsel's trial strategy is 'virtually unchallengeable.'" Mere dissatisfaction with a "'counsel's exercise of judgment'" is insufficient to warrant overturning a conviction.
[State v. Nash, 212 N.J. 518, 542 (2013) (third alteration in original) (citations omitted).]
Second, a defendant must prove that he suffered prejudice due
to counsel's deficient performance. Strickland, supra, 466 U.S.
at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must
show by a "reasonable probability" that the deficient performance
affected the outcome. Fritz, supra, 105 N.J. at 58. "'A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.'" State v. Pierre, 223 N.J. 560, 583
(2015) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at
2068, 80 L. Ed. 2d at 698). "If [a] defendant establishes one
5 A-0273-15T2 prong of the Strickland-Fritz standard, but not the other, his
claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280
(2012).
The Strickland/Fritz standard applies to IAC claims regarding
the plea bargaining process. State v. Gaitan, 209 N.J. 339, 350-
51 (2012). "In the specific context of showing prejudice after
having entered a guilty plea, a defendant must prove 'that there
is a reasonable probability that, but for counsel's errors, [he
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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0273-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
P.M.B.,
Defendant-Appellant. ______________________________
Submitted August 15, 2017 – Decided September 27, 2017
Before Judges Messano and Sumners.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 10- 04-0183.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).
John T. Lenahan, Salem County Prosecutor, attorney for respondent (Derrick Diaz, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant P.M.B. pled guilty to first-degree aggravated
sexual assault, N.J.S.A. 2C:14-2(a), admitting to anally penetrating his stepson who was under the age of thirteen at the
time. The judge sentenced defendant to a seven-year term of
imprisonment, subject to an 85% period of parole ineligibility
under the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant
filed a pro se petition for post-conviction relief (PCR), alleging
numerous trial errors and the ineffective assistance of counsel
(IAC). The judge, who was the same judge that accepted defendant's
guilty plea and imposed sentence, appointed PCR counsel.1
During oral argument on the petition, defendant contended
that trial counsel failed to adequately review discovery with him
and "pushed him" into pleading guilty. Defendant also argued that
the plea form contained trial counsel's representation that he
would ask the judge to impose a lesser period of incarceration.
However, at sentencing, counsel withdrew any request for a lesser
sentence, explaining defendant was found to have compulsive sexual
behaviors, the Adult Diagnostic and Testing Center at Avenel
(Avenel) recommended he receive treatment, and defendant
affirmatively stated that he wished to avail himself to the
treatment. Lastly, defendant argued that trial counsel failed to
1 Defendant's direct appeal was limited to his sentence, and we affirmed but vacated the restitution award. The PCR judge's written opinion indicates the restitution award was vacated on remand.
2 A-0273-15T2 provide adequate advice regarding defendant's ability to have
parenting time with his biological daughter after completing his
sentence. PCR counsel referenced a letter to defendant, written
by trial counsel approximately five months after sentencing.2
The judge ordered a plenary hearing on the PCR petition.
Trial counsel and defendant both testified. In his written opinion
following the evidentiary hearing, the judge concluded defense
counsel was more credible than defendant was. Based upon counsel's
testimony, the plea forms and the colloquy at the time of
defendant's guilty plea, the judge found defendant was fully aware
of the consequences of his guilty plea, including limits on
defendant's "contact with children." The judge also found that
trial counsel adequately met with defendant and reviewed the
discovery in the case and provided correct information regarding
defendant's sentence exposure. Furthermore, the judge rejected
defendant's assertion that his wife had a vendetta against him and
2 The letter is in the State's confidential appendix. Addressed to defendant, it provides in full:
All the information you're looking for should be in the Pre-Sentence Report I previously forwarded to you. Obviously there is no contact with your victim. There was no prohibition on future visits with your other children.
3 A-0273-15T2 coerced the victim to "fabricate the allegations" against
defendant. The judge accepted counsel's determination that the
State had an "extremely strong case."
Lastly, the judge concluded that even if trial counsel should
have advocated for a lesser period of incarceration, defendant
suffered no prejudice. The judge noted that defendant was
sentenced as a second-degree offender at the "midpoint of the
second degree range." Implicitly, the judge concluded he would
have imposed the same sentence even if counsel had asked for a
lesser period of incarceration.
The judge entered an order denying the petition, and this
appeal followed.
Defendant argues the judge erred in dismissing the petition
because he established trial counsel provided ineffective
assistance in that counsel failed to properly investigate the
case, gave him incorrect advice regarding the consequences of his
guilty plea and failed to argue for a lesser sentence. As a
result, defendant did not knowingly and voluntarily enter his
guilty plea.
The standards that guide our review are well-known. To
establish an IAC claim, a defendant 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
4 A-0273-15T2 by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
First, he must demonstrate "counsel made errors so serious that
counsel was not functioning as the 'counsel' guaranteed . . . by
the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466
U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).
To satisfy prong one, [a defendant] ha[s] to "overcome a 'strong presumption' that counsel exercised 'reasonable professional judgment' and 'sound trial strategy' in fulfilling his responsibilities." "[I]f counsel makes a thorough investigation of the law and facts and considers all likely options, counsel's trial strategy is 'virtually unchallengeable.'" Mere dissatisfaction with a "'counsel's exercise of judgment'" is insufficient to warrant overturning a conviction.
[State v. Nash, 212 N.J. 518, 542 (2013) (third alteration in original) (citations omitted).]
Second, a defendant must prove that he suffered prejudice due
to counsel's deficient performance. Strickland, supra, 466 U.S.
at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must
show by a "reasonable probability" that the deficient performance
affected the outcome. Fritz, supra, 105 N.J. at 58. "'A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.'" State v. Pierre, 223 N.J. 560, 583
(2015) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at
2068, 80 L. Ed. 2d at 698). "If [a] defendant establishes one
5 A-0273-15T2 prong of the Strickland-Fritz standard, but not the other, his
claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280
(2012).
The Strickland/Fritz standard applies to IAC claims regarding
the plea bargaining process. State v. Gaitan, 209 N.J. 339, 350-
51 (2012). "In the specific context of showing prejudice after
having entered a guilty plea, a defendant must prove 'that there
is a reasonable probability that, but for counsel's errors, [he
or she] would not have pled guilty and would have insisted on
going to trial.'" Id. at 351 (alteration in original) (emphasis
added) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009).
Regarding inadequate investigation, trial counsel admitted
at the PCR hearing that he did not interview the victim or his
mother. However, he reviewed the evidence with defendant,
including discussing apparent "tapes" of their statements to law
enforcement. Counsel also testified that defendant provided him
with no names of potential witnesses. Based on the testimony at
the PCR hearing and the entire record, the judge concluded trial
counsel's performance in this regard was not deficient.
"In reviewing a PCR court's factual findings based on live
testimony, an appellate court applies a deferential standard; it
'will uphold the PCR court's findings that are supported by
sufficient credible evidence in the record.'" Pierre, supra, 223
6 A-0273-15T2 N.J. at 576 (quoting Nash, supra, 212 N.J. at 540). We find no
reason to disturb the judge's findings and conclusions in this
regard.
At sentencing, trial counsel told the judge he was withdrawing
any application for a lesser sentence because defendant was not
opposed to the maximum amount of treatment and he would not be
admitted to Avenel unless the custodial portion of the sentence
was at least seven years. Counsel was not questioned about this
during the evidentiary hearing.
As defendant correctly points out, that interpretation of
N.J.S.A. 2C:47-3(h) is incorrect, and the State concedes this
point. Only sentences of seven years or less permit a defendant
to serve the term of incarceration at Avenel. N.J.S.A. 2C:47-
3(h)(1).
However, the judge explained that the sentence actually
imposed reflected a careful weighing of the aggravating and
mitigating sentencing factors. He noted that defendant was being
sentenced for a crime one degree lower than the crime to which he
pled guilty. As a result, the judge implicitly found defendant
suffered no prejudice by counsel's lapse in this regard. Based
on the judge's credibility determinations, there is no credible
evidence in the record supporting a conclusion that defendant
would not have pled guilty but for counsel's erroneous statement
7 A-0273-15T2 regarding an Avenel sentence. As a result, we reject this as a
basis to reverse.
At the PCR hearing, trial counsel explained that defendant's
conviction would not necessarily foreclose parenting time with his
daughter. Counsel displayed familiarity with N.J.S.A. 9:2-4.1(a)
("[A] person convicted of sexual assault . . . shall not be
awarded the custody of or visitation rights to any minor
child . . . except upon a showing by clear and convincing evidence
that it is in the best interest of the child for custody or
visitation rights to be awarded."). The post-sentencing letter
to defendant does not state anything that is contrary to the
statute.
Moreover, at sentencing, defendant was served with a "Sex
Offense Restraining Order," pursuant to N.J.S.A. 2C:14-12. It
clearly advised defendant that he was restrained from contacting
the victim and barred from the residence of the victim. The
victim's mother is also the mother of defendant's biological
daughter, who shares the same home with the victim. Defendant
cannot claim he was ignorant of the consequences of his guilty
plea in this regard.
In a pro se supplemental brief, defendant argues that PCR
counsel failed to raise, and the judge failed to address, a number
of issues asserted in defendant's pro se brief in support of the
8 A-0273-15T2 petition. Most of these claims involve alleged inadequacies in
the investigation, the indictment and grand jury process, and a
search warrant. Defendant also alleges a lack of corroborative
forensic evidence and allegedly contradictory statements made by
the victim.
The PCR judge did not specifically address these claims,
except to reject defendant's allegation that his wife had a
"vendetta" against him and coerced the victim into fabricating the
story of sexual abuse. We might otherwise remand the matter for
the PCR court to specifically address the issues raised in the pro
se submission. See State v. Webster, 187 N.J. 254, 258 (2006)
(reversing and remanding because PCR counsel did not reference the
arguments raised in defendant's pro se petition and the judge did
not comment on them in any way).
However, it is quite clear that defendant could have asserted
these claims on direct appeal, but did not, and therefore they are
procedurally barred on PCR review. R. 3:22-4. More importantly,
having found no reason to set aside defendant's guilty plea based
upon the ineffective assistance of counsel, and having rejected
any other reason to conclude the guilty plea was not voluntarily
and knowingly entered, these arguments about alleged infirmities
and the adequacy of the evidence are deemed waived. See State v.
Davila, 443 N.J. Super. 577, 585 (App. Div. 2016) (quoting State
9 A-0273-15T2 v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988) ("Generally,
a guilty plea constitutes a waiver of all issues which were or
could have been addressed by the trial judge before the guilty
plea.").
Affirmed.
10 A-0273-15T2