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State v. D.H.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 7, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
D.H., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 97-11-4645.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 28, 2008

Before Judges Graves and Yannotti.

Defendant D.H. appeals from an order entered by Judge Donald S. Goldman on March 23, 2007, which denied his petition for post-conviction relief (PCR). We affirm.

Defendant was charged under Essex County Indictment No. 97-11-4645 with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (counts one through four); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count five). On September 21, 1999, defendant appeared before Judge Goldman and pled guilty to counts four and five. Defendant admitted that he digitally penetrated the vagina of his five-year-old-daughter. Defendant also admitted that, at the time, he was responsible for the child's care.

The State agreed to recommend that defendant be sentenced to a term of twelve years of imprisonment, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge did not expressly mention "Megan's Law," N.J.S.A. 2C:7-1 to 7-21. However, the judge explained that defendant would be subject to registration and community notification under the law. The judge additionally stated that defendant would be subject to community supervision for life. The judge also explained that defendant could be subject to involuntary commitment following the expiration of his sentence.

Defense counsel conceded that NERA would apply to defendant's conviction for aggravated sexual assault. The judge explained that NERA requires that defendant serve eighty-five percent of his sentence. The judge further explained that defendant would be subject to an additional period of parole supervision that would begin after he completed his term of incarceration, and he could be required to serve any or all of that period of parole supervision if he violated the terms and conditions of parole.

The judge expressed some uncertainty as to whether NERA applied to the aggravated sexual assault conviction. The judge stated that, if he concluded that NERA did not apply, the plea would be vacated and the State could make a new plea offer. On March 27, 2000, the judge entered an order finding that NERA was inapplicable and vacated the guilty plea. The State filed a motion for leave to appeal from that order. The State's motion was denied on May 15, 2000.

Thereafter, defendant and the State negotiated a new plea agreement, which was placed on the record before Judge Goldman on July 20, 2000. Defendant agreed to supply additional facts that would support the application of NERA to the sentence, and the State agreed to recommend a ten-year sentence. Defendant provided the court with additional facts and defense counsel conceded that, based on those facts, NERA applied. The judge stated that gap time credits would not apply to the parole ineligibility period.

On count four, the judge sentenced defendant to ten years of imprisonment, with a period of parole ineligibility as prescribed by NERA, with an additional five-year period of parole supervision. The judge imposed a concurrent ten-year sentence on count five. The judge dismissed counts one, two and three, sentenced defendant to community supervision for life, ordered defendant to submit samples for DNA testing, and imposed certain fees and assessments. The judge ordered that the sentences be served concurrently with a sentence imposed on Union County Indictment No. 96-10-1304. The judge also granted defendant 327 days of jail time credits and 467 days of gap time credits.

Defendant filed an appeal challenging his sentence. The appeal was heard on our excess sentence calendar. Defendant argued that the trial judge should have sentenced him as a second-degree offender and imposed a seven-year sentence. We entered an order on March 31, 2004, affirming the sentence. Defendant filed a petition for certification, which was denied by the Supreme Court on October 21, 2004. State v. Harrison, 182 N.J. 142 (2004).

On May 24, 2006, defendant filed a petition for PCR. Defendant argued that he had been denied the effective assistance of counsel. Defendant asserted that his attorney placed him "under the false assumption" that his gap time credits would reduce the actual amount of time he would serve in custody. Defendant also asserted that he did not have "a clear understanding" of the consequences of his plea because counsel failed to correctly advise him as to the applicability of NERA, the five-year period of parole supervision, the applicability of Megan's Law, and community supervision for life.

Judge Goldman considered the PCR petition on March 22, 2007. In his argument, PCR counsel conceded that when defendant entered his initial plea, the judge had advised defendant that NERA applied to his sentence. PCR counsel also conceded that the judge had explained to defendant that the gap time credits would not apply to the parole ineligibility period. PCR counsel additionally conceded that the judge had informed defendant that he was subject to registration and community notification, as well as community supervision for life. PCR counsel nevertheless argued that trial counsel was deficient in his advising defendant on those issues and, as a consequence, defendant's plea was not knowing or voluntary.

Judge Goldman placed his decision on the record. The judge concluded that there was no merit in defendant's contention that his attorney failed to correctly advise him regarding his plea. The judge stated:

If there ever was a case . . . in which a claim by a defendant that he [did not] understand the 85 percent issue [was] not worthy of any further consideration, this would be it. Here's a case in which [defendant's] attorney concedes the . . . application of [NERA] originally, where the court finds that it [does not] apply, where the matter is up on appeal on that issue, where [defendant] obtains new counsel, where [defendant] explicitly is put under oath for the specific purpose of justifying the application of [NERA], where it's explained to the defendant at the time of the plea in excruciating detail -- both at the time of the plea in 1999, again at the time of the sentence in 2000 -- there is absolutely no basis for the claim.

There's no basis for suggesting the claim could not have been made earlier. Certainly, if the issue about the 85 percent was known . . . from the beginning, [there is] no reason in the world why it could not have been and should not have been [raised in] an appeal if there were any issue involving it. It was not.

The judge additionally found that defendant had been fully informed regarding the application of the gap time credits. The judge entered an order dated March 23, 2007, denying the petition. This appeal followed.*fn1

Defendant raises the following arguments for our consideration:

POINT I

THE TRIAL JUDGE ERRED BY DENYING DEFENDANT'S CLAIMS AT THE POST CONVICTION RELIEF HEARING THAT HE WAS DEPRIVED OF [THE] EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE BARRED.

Having thoroughly reviewed the record, we are convinced that defendant's arguments are entirely without merit. We therefore affirm substantially for the reasons stated by Judge Goldman in his decision on the record on March 22, 2007. R. 2:11-3(e)(2). We add the following brief comments.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting a defendant's right to counsel under our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain a new trial based on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient, and that counsel's deficient performance prejudiced his defense. Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693).

The Strickland test has been applied to challenges to guilty pleas. State v. DiFrisco, 137 N.J. 434, 456 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996). To have a guilty plea set aside on the basis of the ineffective assistance of counsel, a defendant must show that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" Id. at 457 (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 1608, 36 L.Ed. 2d 235, 243 (1973)). The defendant also 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. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 210 (1985)).

Here, the record establishes that before defendant entered his initial plea on September 21, 1999, the court fully explained to defendant that he would be subject to registration and community notification. The judge further explained that defendant would be subject to community supervision for life. In addition, the judge explained that if NERA applied to his sentence, he would be required to serve eighty-five percent of the sentence. Defendant stated on the record that he understood these consequences of the plea.

On July 20, 2000, after the initial plea was set aside and the plea renegotiated, defendant placed additional facts on the record to remove any doubt as to the applicability of NERA to the sentence for aggravated sexual assault. The judge summarized the terms of the re-negotiated agreement, noting that the new offer was "ten years subject to 85%." The judge also noted that, since defendant was then serving another sentence in Union County, and his sentencing in this matter had been delayed, he had been earning additional gap time credits. The judge stated, however, that "the gap time does not apply to the period of parole ineligibility."

Thus, the record supports the judge's findings that defendant had been fully informed of the penal consequences of his plea. Therefore, we are satisfied that the judge correctly found that trial counsel's representation of defendant was not deficient and defendant's claim of ineffective assistance of counsel was without merit.

We are also satisfied that the judge correctly determined that there was no need for an evidentiary hearing in this matter. A trial court "ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie case in support of post-conviction relief and the facts supporting the claim are outside the trial record." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (citing State v. Preciose, 129 N.J. 451, 462 (1992)), certif. denied, 162 N.J. 199 (1999). However, defendant did not present a prima facie case in support of his claim. Moreover, the record of the plea hearings provided the judge with a sufficient factual record to resolve defendant's claim.

Affirmed.


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