On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 03-03-0144.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Parrillo and Lihotz.
Defendant Israel Arroyo appeals from a Law Division order denying his motion for post-conviction relief (PCR). We affirm.
On May 23, 2003, pursuant to a negotiated agreement, defendant pled guilty to an accusation charging him with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and to one count of a two-count indictment charging him with second-degree eluding, N.J.S.A. 2C:29-2(b). As to the former, the State agreed to recommend a ten-year prison term with an 85% parole bar pursuant to the No-Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and as to the latter, a concurrent seven-year prison term. At the time of the plea, defendant gave a proper factual basis for both offenses and represented that the plea was entered freely and knowingly. He also acknowledged the provisions of Megan's Law, N.J.S.A. 2C:7-1 to-11, applied; that he was subject to DNA testing; that he would be evaluated for commitment at Avenel; that he could be subject to involuntary civil commitment after completing his sentence pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to-27.38; and that he would lose his driver's license for one year.
Defendant was sentenced on July 25, 2003, in accordance with the plea agreement, to an aggregate ten-year term, subject to the 85% parole bar. Based upon the Avenel evaluation, the judge recommended that defendant serve his sentence at the Adult Diagnostic and Treatment Center (ADTC) after completion of the mandatory period of parole ineligibility. Appropriate fees and penalties were also imposed. Pursuant to the State's motion, the judge dismissed count two of the indictment.
Defendant did not appeal, having waived that right as part of his plea bargain, Rule 3:9-3(d). He did, however, file a PCR application, wherein he argued that counsel was ineffective for failing to explain his potential exposure under the plea agreement and failing to investigate defendant's own sexual abuse as a child as well as the truthfulness of the victim's accusation of sexual assault. The PCR judge, who was the same judge who heard defendant's plea and sentenced him, disagreed and denied the application, reasoning:
First, the defendant failed to produce any evidence in the form of any affidavit or certification from any relative witnesses, or even from himself, that trial counsel failed to explain his exposure under the plea agreement. In any case, the record contradicts his claim.
Second, even assuming trial counsel never explained to the defendant exposure under the plea agreement, the fact that the defendant acknowledged his understanding of exposure through affirmative responses to the Court's question, and through the execution of standard and supplemental plea forms, compels a finding the defendant suffered no prejudice from such a result. Therefore, the defendant is not entitled to an evidentiary hearing on that claim.
.... The defendant alleges trial counsel did not investigate the accuser or other potential witnesses. While our Courts have recognized counsel's duty to make reasonable investigations, or to make a reasonable decision that particular investigations are unnecessary[,] (See State versus Savage, 120 N.J. 594), the defendant in this matter has not submitted any affidavits or certifications from witnesses he claims trial counsel should have investigated, indicating what information they could have provided, or how that information would have changed his decision to plead guilty. Therefore, the defendant cannot make out a prima facie showing of ineffective assistance.
Likewise, the defendant does not identify what discovery documents trial counsel failed to review with him. Although, the defendant pled guilty Pre-Indictment Rule 3:13-3A, provides a mechanism for the inspection of discovery where a pre-indictment plea offer is on the table. However, without some indication from the defendant as to what specific discovery document counsel failed to review with him, or what information those documents contained would have changed his decision to plead guilty, defendant does no more than make bold assertions that he was denied effective assistance of counsel. This is not enough to make a prima facie showing.
Defendant's final two claims are equally insufficient to make out a prima facie showing of ineffective assistance, for substantially the same reasons his other claims fail. First, the defendant claims trial counsel never informed him what the victim said, or about the alleged sexual acts committed against her. While the defendant does not identify what the victim said,... even assuming his claim is true, defendant still offers no suggestion as to how the proceeding would have been different, had counsel told him what the victim said. He therefore fails to make out a prima facie showing of prejudice. In this matter the defendant admitted, not only to this Court, but to the Aven[e]l evaluation that he did, in fact, commit this crime, and was guilty of this crime.
The defendant also claim[s] trial counsel never investigated whether another person had committed the offense against the victim. Without any affidavit or certification from a witness with knowledge someone else committed the offense, the defendant's claim is utterly ...