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State ex rel J.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 21, 2009

STATE OF NEW JERSEY IN THE INTEREST OF J.W., A MINOR.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, No. FJ-15-211-03.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 18, 2008

Before Judges Wefing and Parker.

J.W. appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we affirm.

In March 2003, J.W. was charged with nine counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), and three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b). Although J.W. was thirty-one years of age, the charges were filed in Chancery Division, Family Part, because they related to conduct by J.W. with his cousin, E.W., commencing when he was eleven years old and she was eight years old. She did not report the abuse at the time, resulting in the delay in prosecution.

After the charges were filed, the State filed a motion to waive jurisdiction pursuant to Rule 5:22-2. Before this motion was acted upon, J.W. entered a negotiated plea of guilty to one count of first-degree aggravated sexual assault, and the State agreed to drop the remainder of the charges and to recommend a sentence of four years, the maximum term that could be imposed upon a juvenile. The trial court accepted J.W.'s plea, and in June 2004 the trial court sentenced J.W. to a four-year term of incarceration and imposed the appropriate fines and penalties. J.W. was also made subject to the requirements of Megan's Law. N.J.S.A. 2C:7-1 to -21.

Defendant appealed his sentence as excessive. It was affirmed. State in the Interest of J.W., No. A-2606-04 (App. Div. June 29, 2005).

Shortly after that affirmance, J.W. filed a petition for post-conviction relief. The trial court denied his petition after hearing argument from the attorneys. The trial court did not conduct a plenary hearing. He now appeals from the trial court order denying his petition. On appeal, he raises the following arguments:

POINT I

BECAUSE TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL (U.S. CONST. AMEND. VI, XIV; N.J. CONST. (1947), ART I, ¶ 10) AND BECAUSE PETITIONER WAS PREJUDICED THEREBY, THE COURT SHOULD GRANT HIS PETITION FOR POST-CONVICTION RELIEF. IN THE ALTERNATIVE, BECAUSE THE PETITIONER HAS PRESENTED AT LEAST PRIMA FACIE PROOF THAT HE HAD BEEN DEPRIVED OF EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, THE COURT SHOULD GRANT PETITIONER AN EVIDENTIARY HEARING ON THIS ISSUE.

A. COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO CHALLENGE THE PHYSICAL EXAM OF ALLEGED VICTIM AND WHEN HE FAILED TO APPLY TO HAVE THE ALLEGED VICTIM INTERVIEWED.

B. COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO FILE A MOTION TO SUPPRESS THE DEFENDANT'S STATEMENT TO THE POLICE.

C. COUNSEL WAS INEFFECTIVE WHEN HE OVERSTATED THE DEFENDANT'S SENTENCING EXPOSURE AND ALLOWED THE DEFENDANT TO BELIEVE HE WOULD RECEIVE PROBATION FOR PLEADING GUILTY TO THE SOLE CHARGE.

D. CUMULATIVE ERRORS BY COUNSEL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL AND THE DENIAL OF THE DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT II

BECAUSE PETITIONER'S STATEMENTS TO THE POLICE WERE MADE AFTER HE REQUESTED A LAWYER AND UNDER DURESS, THE STATEMENTS SHOULD HAVE BEEN EXCLUDED (U.S. CONST. AMEND. V AND XIV).

A. PETITIONER ASKED TO SPEAK TO A LAWYER DURING QUESTIONING.

B. IN SPITE OF THE FACT THAT THE PETITIONER'S CHILD WAS RECOVERING FROM HER INJURIES RESULTING FROM A MOTOR VEHICLE ACCIDENT DOWN THE HALL FROM THE SITE OF THE INTERVIEW, INVESTIGATORS CONTINUED TO PRESS FOR INFORMATION WHEN PETITIONER INDICATED THAT HE WAS CONCERNED FOR HIS DAUGHTER AND WANTED TO SEE HER.

POINT III

THE PETITIONER'S MOTION FOR POST-CONVICTION RELIEF SHOULD NOT BE BARRED BY PROCEDURAL CONSIDERATIONS

A. INEFFECTIVE ASSISTANCE OF COUNSEL SATISFIES TWO EXCEPTIONS TO THE PROCEDURAL BARS.

B. THE DENIAL OF A CONSTITUTIONAL RIGHT.

We do not deem it necessary to set forth at length the principles governing petitions for post-conviction relief in which there is a claim of ineffective assistance of counsel. We refer merely to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984); United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed. 2d 657 (1984); and State v. Fritz, 105 N.J. 42 (1987), in which those principles are set forth.

J.W. claims that his attorney was ineffective in several regards. We reject his claim. He first asserts his attorney was ineffective for not challenging the examination of E.W. that was conducted after she came forth and for not arranging an examination by a defense expert. J.W. fails to explain either how the examination of E.W. was subject to challenge or how an examination by a defense expert would have assisted him.

Defendant's claim that his attorney was ineffective for overstating defendant's sentencing exposure and leading defendant to believe he would receive a probationary sentence is belied by the record. The plea form defendant executed clearly states that the prosecution would be seeking a four-year sentence. When defendant entered his guilty plea, the trial court carefully questioned him about his understanding of the penal consequences of his plea. Defendant unequivocally told the trial court that he understood that he could be sentenced to a four-year term of incarceration.

Defendant's remaining arguments revolve around the statement he provided to the police after E.W. complained of the abuse she had received many years earlier. The police approached J.W. while he was at the hospital in which his young daughter was being treated following a serious automobile accident. He agreed to speak with the police and after initially denying any involvement with E.W., later said that he had touched her when they were playing "doctor." As the interview continued, he admitted to engaging in sexual intercourse with her on a number of occasions. He refused to provide a formal statement and the interview ended.

J.W. contends that he was tricked into speaking to the officers because of the stress he was experiencing as a result of his daughter's serious injuries. He asserts that the officers continued to question him even after he said that he wished to speak to a lawyer. He presents no real support for his claims. Nor does he set out what evidence would have been developed if a suppression motion hearing had been held. He has thus not come close to establishing either of the two prongs of the Strickland-Cronic test for ineffective assistance of counsel claims.

Finally, because we find no error, we find no merit to his claim of cumulative error.

Affirmed.

20090121

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