December 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES WATSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-01-0180.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Fisher and Baxter.
Defendant James Watson appeals from a July 27, 2007 order that denied his first petition for post-conviction relief (PCR). We affirm.
On May 24, 2005, defendant entered a negotiated plea of guilty to two counts of third-degree endangering the welfare of a child, as amended from the original second-degree charges. During the plea proceedings, the prosecutor explained that in return for defendant's plea of guilty, the State would recommend a sentence of non-custodial probation with a requirement of both Megan's Law registration and community supervision for life (CSL).
Under oath, defendant supplied a factual basis for his pleas of guilty to the two counts. The judge questioned defendant concerning his understanding of Megan's Law as follows:
Q: You understand that this plea, despite the fact that you will not be sent to jail, . . . has serious ramifications in terms of Megan's Law?
A: I do.
Q: The next form is entitled Additional Questions For Certain Sexual Offenses. Do you understand that because of the nature of this offense, you have to register with the chief law enforcement officer in the municipality wherein you live? Do you understand that?
A: Yes, I do, Your Honor.
Q: Alright. And if you switch your address, you have to . . . let them know you are moving from one town to another. Do you understand that?
A: Yes, Your Honor.
Next, the judge questioned defendant concerning CSL:
Q: And going back to paragraph four, that's the community supervision for life. And what that means is basically you'll come back before me and I'll put you on probation . . . for a period of time. Once that probation expires, then you will not get off probation. You will be basically what they call parole. [Y]ou will be on parole for life. [T]hat means you will be on parole for at least the next 15 years after you get off probation. And the only way you can be excused from that probation is if this special community parole board finds that you no longer represent a danger to the community and there has been no additional offenses. Do you understand that?
A: I do, Your Honor.
Q: Do you also understand that while you are on community supervision for life, if there are additional offenses such as this type of offense, you could face increased penalties. Do you understand that?
A: I do. I understand that.
Q: And if you violate the community supervision for life when you are on community supervision for life, it's simply like probation or parole. They can control your life. They can set a curfew. They can order certain treatment. They can say that you can't live at a particular place; you can't have contact with a particular person; all kinds of conditions that are reasonable can be placed upon you. Do you understand that?
A: I understand that, Your Honor.
Q: Alright. And so really the [impact] of this particular plea is that you're not free to do what you want to do. Do you understand that?
A: I understand that.
A question on one of the plea forms asked defendant whether he was "satisfied with the advice [he] . . . received from [his] lawyer." Defendant circled "yes." Defendant did not file a motion to withdraw his guilty plea nor did he appeal the guilty plea or sentence. On November 4, 2005, he filed the PCR petition that is the subject of this appeal.
Defendant supported that petition with a May 23, 2007 certification in which he asserted that he received ineffective assistance of trial counsel because counsel: 1) failed to seek an expert opinion demonstrating that one of the victims' accusations "had been tainted by suggestibility effects," and had defendant known of the possibility of such expert opinion, he would not have entered a plea of guilty; 2) failed to review the Division of Youth and Family Services (DYFS) case file to search for exculpatory information; and 3) waited until the day of the plea proceeding to advise him that Megan's Law and CSL would be applicable, and such "unfair . . . last minute" information "result[ed] in [his] wrongful plea of guilty."
At the July 27, 2007 PCR hearing, Judge Chaiet, who also presided over the plea colloquy and sentencing, observed that defendant's PCR claims were procedurally barred by Rules 3:22-3 and -4 because defendant failed to pursue these claims on direct appeal. Nonetheless, Judge Chaiet proceeded to evaluate each claim on the merits, and after a thorough analysis, rejected all three.
The judge first analyzed defendant's claim that his trial counsel should have retained an expert to address the impermissibly suggestive techniques used by the investigator who interviewed the child victims. In support of his PCR petition, defendant presented an expert report that he had recently obtained to demonstrate that such opinion would have been available to trial counsel.
The judge observed that the expert report was essentially a net opinion because the expert did not analyze the actual interview techniques that were used. Instead, the expert merely offered explanations of the victims' statements and provided statistics about the frequency of false reporting, without ever explaining why the particular techniques used were improper. The judge also observed that the expert's report addressed the accusations of only one of the two victims and the expert failed to even review the videotape of that child's interview.
Ultimately, Judge Chaiet concluded there was no reason for trial counsel to have sought an expert report or move for an order compelling the turnover of the DYFS records. The judge reasoned, "this defendant said, look, I'm guilty. . . . Had he chosen to go to trial rather than plead guilty, counsel may well have obtained an expert to question the reliability of the victims' statements." The judge observed that "by pleading guilty, the petitioner gave up his right to trial and gave up his right to have the State prove its case beyond a reasonable doubt."
Next, the judge rejected defendant's claim that he was misinformed by his attorney about CSL until the morning of the plea when counsel finally advised him that both would apply. The judge observed that during the extensive discussion of Megan's Law and CSL throughout the plea colloquy, defendant had sufficient opportunity to have mentioned his attorney's "alleged misinformation," but "[h]e never brought it up." The judge also observed that his own discussion with defendant during the plea colloquy had been lengthy and that he had "painstakingly" reviewed with defendant all of the implications and consequences of his guilty plea. For those reasons, the judge rejected defendant's contention that trial counsel's alleged late advice about CSL and Megan's Law had resulted in defendant entering a plea of guilty that he would otherwise not have entered.
On appeal, defendant maintains:
I. DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE PROCEDURALLY BARRED FROM CONSIDERATION ON THE MERITS.
II. TRIAL COUNSEL WAS INEFFECTIVE FOR AFFIRMATIVELY MISADVISING THE DEFENDANT THAT MEGAN'S LAW WAS NOT APPLICABLE TO HIS PLEA AND SENTENCE.
III. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO CONDUCT A MINIMAL INVESTIGATION OF THE FACTS WHICH WOULD HAVE BROUGHT THE VERACITY OF THE PRIMARY VICTIM'S STATEMENTS INTO CONSIDERABLE QUESTION THEREBY AFFECTING THE OUTCOME OF THE PROCEEDING REGARDING DEFENDANT'S DECISION TO ACCEPT A PLEA.
IV. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST AND REVIEW DISCOVERY DOCUMENTS THAT WERE READILY AVAILABLE AND WHICH WERE USED AS A FOUNDATION FOR THE PROSECUTOR'S CASE AGAINST THE DEFENDANT.
IV. DEFENDANT HAS PRESENTED PRIMA FACIE EVIDENCE ENTITLING HIM TO AN EVIDENTIARY HEARING.
To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient, and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d. 674, 693 (1984). Performance is deficient "when counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To show prejudice, the defendant must demonstrate that there is 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Ibid. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42 (1987).
Although this court must defer to the trial court's factual findings that underpin its determination, this court owes no deference to the determination itself. State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Whether the trial court's fact-finding satisfies the applicable legal standard is a question of law subject to plenary review on appeal. Ibid.
We turn first to Point I, in which defendant maintains that his petition "should not be procedurally barred from consideration on the merits." We decline to address this contention because, as the record clearly demonstrates, Judge Chaiet considered all of defendant's claims on the merits.
Point II is likewise meritless. Even if, as defendant claims, he did not learn until the morning of the plea colloquy that he was subject to Megan's Law and CSL, his contentions before Judge Chaiet and before us fall woefully short of establishing that such delayed information caused him to enter a plea of guilty that he would otherwise not have entered. In the absence of such showing, a claim of ineffective assistance of counsel must fail. Fritz, supra, 105 N.J. at 60-61. As we have observed, defendant stated on his plea form that he was fully satisfied with the advice he received from his attorney, which negates the very claim he raises in his PCR petition. Moreover, during the lengthy and painstaking plea colloquy that Judge Chaiet conducted, defendant had ample opportunity to assert, had it been the case, that he needed more time to consider the guilty plea because he had only learned that morning of the Megan's Law and CSL consequences of his guilty plea. Defendant said no such thing.
Moreover, defendant does not claim, even now, that he misunderstood the provisions of CSL. In fact, such a claim would be virtually impossible to mount in light of the careful and thorough plea colloquy the judge conducted. "Among the requirements for the validity of a guilty plea is that the plea is given with sufficient understanding of the nature of the charge and the consequences flowing from it." State v. Williams, 342 N.J. Super. 83, 89 (App. Div.), certif. denied, 170 N.J. 207 (2001). Here, as in Williams, "the combination of the colloquy about the supplemental plea form and the clear language of the form constituted an adequate inquiry by the court to satisfy the requirements of Rule 3:9-2." Ibid.
We are satisfied, as was Judge Chaiet, that even if counsel provided last-minute advice about the applicability of Megan's Law and CSL, defendant has failed to demonstrate that he would have taken the case to trial had counsel's advice been provided earlier. Again, unless the claimed deficiency prejudiced a defendant, a claim of ineffective assistance fails. Fritz, supra, 105 N.J. at 61-62. Consequently, we reject the claim defendant advances in Point II.
The claims defendant raises in Points III and IV lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Like Judge Chaiet, we are satisfied that the highly favorable terms negotiated by trial counsel spared defendant the risk of a twenty-year prison sentence. Under those circumstances, counsel had no need to request an expert report or seek access to DYFS records. In light of our conclusion that each of defendant's claims lacked merit, we also conclude that defendant failed to establish any entitlement to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992).
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