On appeal from the Superior Court of New Jersey, Law Division, Camden County, Accusation No. 04-01-0299.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Alvarez.
Defendant pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). In exchange for the plea, the State recommended a fifteen-year term of incarceration with an eighty-five percent "period of parole ineligibility and five years post-release parole" pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(c), community supervision for life (CSL) pursuant to N.J.S.A. 2C:7-1, and possible commitment pursuant to the Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The defendant agreed to waive any right to appeal. See R. 3:9-3(d). The court sentenced defendant in accordance with the terms of the plea agreement.
Defendant did not file a direct appeal. Instead, on December 30, 2004, defendant filed a certification in support of a petition for post-conviction relief (PCR) claiming ineffective assistance of counsel. Defendant claimed his trial counsel misled him by providing him with false assurances that he could be sentenced one degree lower to a seven-year custodial term. Additionally, defendant claimed his trial counsel: (1) failed to properly investigate the sexual abuse to which he had been subjected as a child, (2) strong armed him into accepting the plea agreement, and (3) sent an associate with no apparent knowledge of the case to appear at sentencing.
The trial court rejected all of these contentions, noting that in light of defendant's prior conviction for sexual assault, his exposure, if convicted, was substantial. He reasoned that under these circumstances, the plea negotiated by his attorney was generous.
In denying relief, the trial court first found that any claim that the sentence imposed was excessive should have been the subject of a direct appeal. Because defendant failed to exhaust all avenues of direct appeal, the court concluded that the petition was procedurally barred. Nonetheless, the court considered the merits of defendant's petition.
First, citing State v. Pierce, 115 N.J. Super. 346, 347 (App. Div.), certif. denied, 59 N.J. 362 (1971), the court reasoned that even if defendant's petition was not procedurally barred, "an allegation of [an] excessive sentence is not a ground for post-conviction relief . . . ." Next, referencing State v. Flores, 228 N.J. Super. 586, 595 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989), the court determined that defendant's challenge to how the trial court weighed the aggravating and mitigating factors "should [have been] addressed only by way of direct appeal . . . ."
Addressing the ineffective assistance of counsel claims under the two-prong Strickland/Fritz*fn1 test, the court found that there was nothing in the record demonstrating that trial counsel's "performance was so deficient that he was not functioning as counsel . . . ." The court noted that at sentencing, the prosecutor represented to the court that the initial discussions contemplated a twenty-year sentence, which defense counsel, through negotiations, was able to persuade the State to reduce to a fifteen-year custodial term recommendation. As to the second prong, the court did not agree that the psychological evaluation prepared on defendant's behalf by Dr. Philip H. Witt, Ph.D., would have resulted in a further reduction of defendant's sentence:
Defendant argues that armed with this additional information and presented with a heartfelt appeal by trial counsel, the [j]udge would have been persuaded that mitigating factors existed which would have tipped the balance of aggravating and mitigating factors so drastically in his favor that the [j]udge would have, within a reasonable probability, departed from the negotiated plea agreement.
Defendant suggests that the [j]udge would have found Mitigating Factor 2, that the defendant never contemplated his conduct would cause or threaten serious harm, and Mitigating [Factor] 4, that there were grounds tending to justify the defendant's conduct, though failing to establish a defense.
It would appear that a defendant who commits a second sexual assault after receiving treatment for his illness would be well aware that his conduct would cause serious harm. Just as clearly, prior abuse is not a justification for abusing others, and so, under the two prongs of Strickland, trial counsel's decision not to argue for a downward departure from the plea agreement was not deficient at all, but a realistic assessment of the circumstances and two, having argued these matters ...