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State v. Wargacki

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 16, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL J. WARGACKI, JR., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Accusation No. 03-01-6-A.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 22, 2009

Before Judges Payne and Waugh.

Defendant, Michael J. Wargacki, Jr., pled guilty to charges of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b, and third-degree endangering the welfare of a child, N.J.S.A. 2C:24- 4a, and was sentenced to two years of probation conditioned upon service of 180 days in the county jail.

After unsuccessfully seeking a waiver of the Megan's Law prohibition against living with the minor child of his fiancée, defendant sought post-conviction relief (PCR), which was denied by Judge Peter Conforti without an evidentiary hearing. At oral argument on defendant's petition and on appeal, defendant asserts that he was not informed of the specific requirements of community supervision for life. Defendant's position before the Judge Conforti and on appeal is countered by evidence, proffered by the State, demonstrating that, prior to pleading guilty, defendant signed a two-page document setting forth the general conditions of community supervision for life in twenty-one numbered paragraphs. Among those conditions was the following:

21B. I understand that if the victim(s) of an offense committed by me is a minor, I shall, in addition to the conditions specified in A above, be subject to the following conditions:

1. I am to refrain from initiating, establishing or maintaining contact with any minor.

2. I am to refrain from attempting to initiate, establish or maintain contact with any minor.

3. I am to refrain from residing with any minor without the prior approval of the assigned parole officer.

Further, the record discloses that, at the plea hearing, defendant confirmed to Judge Conforti that he had gone over the conditions of community supervision for life with his attorney and, when asked, defendant confirmed that he was satisfied that he understood those conditions and that he had voluntarily signed the portion of the plea form setting them forth.

Additionally, defendant affirmed that his attorney had explained the charges against him, along with defendant's rights and responsibilities; that his attorney had answered any questions that defendant may have had to defendant's satisfaction; and that defendant was satisfied with the legal services that had been provided to him.

Despite the foregoing, defendant continues to claim ineffectiveness on the part of his trial counsel. In this regard, defendant claims that he was not provided with discovery (a claim that the State has refuted), that he was rushed into pleading guilty, the attorney representing him at the plea hearing was not the person that he retained, and that the attorney merely directed him to circle answers and sign the plea forms without adequate explanation of the forms' contents.

Following our careful review of the record, we are satisfied, as was Judge Conforti, that defendant has failed to set forth a prima facie claim of entitlement to relief under standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984) and adopted in New Jersey in State v. Fritz, 105 N.J. 42, 58 (1987):

namely, that counsel made "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment" and that "the deficient performance prejudiced the defense." In this regard, Judge Conforti stated:

As the State notes in its brief, this defendant was facing a sworn taped statement of the juvenile victim, also his own sworn taped statement in which he acknowledged his actions in touching that victim's breast and vaginal area. And counsel's recommendation to plead guilty under the circumstances, as the State notes, was certainly a reasonable strategic choice in this matter. If anything, he was avoiding [a] potential State Prison sentence. As the transcript will indicate, it wasn't just that this defendant was asked about [the] special sentence of community supervision for life, he was asked if he went over the conditions of the community supervision for life with his lawyer.

It is the burden of the defendant to demonstrate a prima facie case, as I've indicated. The court can understand the assertions that are being made. However, there are no facts to support those assertions that rise to the level of a prima facie case.

Finding no error in the judge's conclusions, we affirm substantially on the basis of Judge Conforti's ruling.

Affirmed.

20090716

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