September 11, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN G. DENOIA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-02-0145-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 5, 2007
Before Judges Cuff and Lintner.
Following his plea of guilty to second degree aggravated assault, defendant John G. DeNoia was sentenced to a five-year term of imprisonment subject to the No Early Release Act (NERA).*fn1
He appeals the denial of his petition for post-conviction relief, which was founded on a claim of ineffective assistance of trial counsel. Defendant has been released from custody.
On appeal, defendant raises the following arguments:
POINT I: THE COURT ERRED IN DENYING DEFENDANT-APPELLANT'S APPLICATION FOR POST-CONVICTION RELIEF; DEFENSE COUNSEL WAS INEFFECTIVE AND DEFENDANT-APPELLANT WAS PREJUDICED THEREBY. IN THE ALTERNATIVE, THE COURT SHOULD HAVE GRANTED DEFENDANT-APPELLANT AN EVIDENTIARY HEARING ON THIS ISSUE.
POINT II: THE DEFENDANT-APPELLANT'S PLEA WAS NOT ENTERED KNOWINGLY; THEREFORE THE COURT ERRED IN DENYING DEFENDANT-APPELLANT'S APPLICATION TO WITHDRAW HIS PLEA OF GUILTY.
Defendant's petition for post-conviction relief is based on an alleged misrepresentation by his attorney that induced defendant to plead guilty. Defendant contends that counsel informed defendant that the victim would not seek damages in a civil action if defendant plead guilty to a NERA offense. Second, defendant asserts that counsel was ineffective because this agreement was not memorialized on the record at the time of the plea. Defendant further claims that counsel's omission caused prejudice because he was precluded from advancing his contention that he acted in self-defense at the time of the assault.
The judge denied the petition for post-conviction relief. In his oral opinion, the judge noted that he would have rejected any plea agreement that contained a waiver of civil remedies by the victim. Furthermore, defendant did not reveal this aspect of the plea agreement when he had an opportunity to do so at the time he entered his guilty plea. Due to this omission, the judge held that defendant failed to establish a prima facie case of ineffective assistance of counsel. He also held that potential civil liability is a collateral consequence of a guilty plea that need not be disclosed for a guilty plea to be considered knowing and voluntary. Finally, the judge held that there was no showing that defendant suffered any prejudice by counsel's failure to disclose the victim's agreement not to pursue a civil remedy.
"Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for post-conviction relief:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law;
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
When petitioning for such relief, the defendant must establish, by a preponderance of the credible evidence, that he is entitled to the requested relief. Preciose, supra, 129 N.J. at 459. To sustain that burden, the defendant must allege and articulate specific facts, which "provide the court with an adequate basis on which to rest its decision." State v. Mitchell, 126 N.J. 565, 579 (1992). In other words, the mere assertion of a claim of ineffective assistance of counsel, however, does not entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, defendant must demonstrate "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. The State adopted the Strickland precepts and its tests in State v. Fritz, 105 N.J. 42, 58 (1987).
We concur that a defendant's exposure to damages in a civil action for his assaultive behavior is a collateral consequence to a criminal act and need not be disclosed at the time of a guilty plea. State v. Heitzman, 209 N.J. Super. 617, 622-23 (App. Div. 1986), aff'd o.b., 107 N.J. 603 (1987). We also agree that the waiver by a victim of a civil remedy against a defendant in exchange for a guilty plea, as opposed to an order that a plea not be evidential in any civil proceeding as permitted by Rule 3:9-2, may be against public policy. See State v. Marsh, 290 N.J. Super. 663, 667 (App. Div. 1996) (a prosecutor cannot offer a plea bargain that cannot be legally implemented). Neither issue, however, is squarely presented by defendant in his petition. Rather, he asserts that his belief, conveyed to him by his attorney, that the victim would not file a civil action to recover damages for the injuries inflicted by defendant motivated his decision to plead guilty.
If his plea was premised on misinformation, the plea may not be knowing or voluntary. See State v. Kiett, 121 N.J. 483, 489 (1990) (guilty plea based on misinformation of eligibility for death penalty not knowing and voluntary if death penalty eligibility is material to the plea); State v. Jamgochian, 363 N.J. Super. 220, 226 (App. Div. 2003) (failure to properly advise defendant as to restrictions attendant to community supervision for life may vitiate a plea); State v. Garcia, 320 N.J. Super. 332, 339 (App. Div. 1999) (misinformation regarding deportation consequences forms the basis to vacate a guilty plea).
Here, there is a factual dispute whether the victim agreed to waive a civil action in exchange for a guilty plea and if defendant's attorney informed defendant of this agreement. In the face of this factual dispute, an evidentiary hearing should have been conducted. If the judge finds that defendant was informed of such an agreement, then the judge must assess whether the agreement was material to defendant's decision to plead guilty to second degree aggravated assault. Jamgochian, supra, 363 N.J. Super. 226-27.
We, therefore, reverse the March 30, 2006 order denying defendant's petition for post-conviction relief and remand for an evidentiary hearing.
Reversed and remanded for further proceedings consistent with this opinion.