July 17, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RODNEY ROBERTS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 96-07-1128.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 20, 2009
Before Judges Stern and Waugh.
Defendant Rodney Roberts appeals the dismissal of his petition for post-conviction relief (PCR). We reverse and remand for an evidentiary hearing.
We discern the following facts and procedural history from the record. Roberts was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2, and second-degree kidnapping, N.J.S.A. 2C:13-1, in connection with a rape that occurred on May 8, 1996. He pled guilty to the second-degree kidnapping charge on July 16, 1996, admitting that he held a seventeen-year-old female against her will, intending to assault her. By the time of the plea, the police had a sworn statement from the victim, in which she had identified Roberts as her assailant on the basis of a photographic array.
Roberts was sentenced to incarceration for seven years, concurrent with a violation of parole sentence of three years.
The aggravated sexual assault charge was dismissed. The violation of parole resulted from Roberts' arrest for second- degree robbery, N.J.S.A. 2C:15-1, on May 25, 1996, as the result of which he pled guilty to third-degree theft, N.J.S.A. 2C:20-3, and received a concurrent sentence of three years. No appeal followed those pleas and sentences.
In May 2000, Roberts' application for parole was denied by a panel of the New Jersey State Parole Board (Board). He was given a twenty-seven month parole-eligibility date. The Board upheld the panel's decision in December 2000. No appeal followed that decision.
However, in January 2001, Roberts filed a pro se motion seeking to withdraw his guilty plea pursuant to Rule 3:9-3(e). In his certification in support of the motion, Roberts made the following factual assertions:
7. On the date of July 16, 1996, the State offered defendant a plea, recommending that it would dismiss the offense of Sexual Assault, down grade the kidnapping to second degree, and recommend that a 7 year term be imposed (with no parole ineligibility) to be served concurrent to the parole violation, and the Theft offense (the May 25, 1996, Robbery was down graded to Theft and a 3 year term imposed pursuant to a plea agreement Acc. No. A936-6-96).
8. Defendant was assured by defense counsel, the State, and the court that the offense of sexual assault would be removed from the record and dismissed "with prejudice," and could not be used to penalize defendant in any future proceedings.
9. Under this false advise the defendant entered a plea of Guilty to the offense of Kidnapping, and gave a factual basis "only" to the offense of Kidnap[ping].
10. On the date of July 26, 1996, defendant was sentenced to a term of 7 years to be served concurrent with the parole violation, and the Theft.
11. On the date of April 16, 1998, defendant appeared before New Jersey Parole Board for a parole release hearing. Parole was denied based on the fact that defendant's record indicated that the dismissed offense of sexual assault was the controlling offense in my files, and the circumstances [of] the offense indicated that "Defendant had forced a 17 year old girl into a secluded area and forced her to have sex with him, stating that [I] defendant would blow off her head if she did not comply."
12. Defendant attempted to inform the parole members that the offense in question was dismissed from the complaint and no factual basis was given to support such allegations. The only offense of guilt was a Kidnap[ping], 2nd. degree, wherein "No harm came to the alleged victim."
13. On the date of May 25, 2000, defendant was again seen by the Parole Board, and again parole was denied based on the impression that the circumstances of the dismissed offense [were] controlling the record and the sexual assault occurred. Claiming that as long as the court and the Department of Corrections included the information in the record, then the circumstances surrounding the offense could be used to deny parole.
Although the criminal records manager in Essex County sent the motion to the Public Defender for the assignment of counsel as an application for PCR, the motion was denied the following day without counsel having been assigned. In a letter dated January 18, 2001, the trial judge stated that he was denying the motion because "[t]here is absolutely no basis to support" it.
He added that Roberts should appeal the Board's denial of parole if he believed it was "improper." No appeal followed that decision.
Although Roberts subsequently maxed out on his criminal sentence, the State successfully sought to have him civilly committed as a sexually violent predator (SVP) pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -.35. As a part of that process, Roberts was assigned counsel, who obtained a signed statement from the victim on September 27, 2005. According to the statement, she had never been able to identify her attacker.
On February 15, 2006, Roberts filed a pro se application seeking post-conviction relief and to withdraw his guilty plea.
In a supporting certification, Roberts made the following assertions:
9. Initially, I entered a plea of "not guilty" at the Arraignment in Municipal Court. However, on July 16, 1996, the Essex County Prosecutor['s] Office made an [unorthodox] plea offer. The terms of the plea offers were: the State would down-grade the Kidnapping offense to second degree and dismiss the sexual assault offense. Moreover, a 7-year (flat) sentence would be recommended to be served concurrently with the parole violation, also concurrent with a 3-year (flat) term imposed for the arresting robbery offense, which was down-graded to theft.
10. After a length[y] debate with the court appointed attorney, Mr. Charles Martone, A.D.P.D., regarding a serious misidentification of me by the alleged victim, he informed me that according to the police reports, the victim had picked my photo out of a line-up, and that she was a female that I knew from the neighborhood named Sharonda (last name unknown) whom I had previously put out [of] my vehicle months earlier. Mr. Martone convinced me that his investigation confirmed her identity and the police reports were accurate.
11. I reluctantly accepted the plea offer and entered a plea of guilty to the second degree kidnapping offense, before the [trial judge].
12. On October 17, 1996, I was sentenced to a 7-year term by [the trial judge], wherein the sexual assault offense was dismissed, and all terms ordered to be served concurrent. Additionally [the trial judge] placed on the record that: "no harm came to the victim whom was released in a safe place prior to apprehension," as a mitigating factor.
13. While in custody of the Department of Correction[s], I made numerous attempts to withdraw the guilty [plea] on the grounds that the DOC, classification department [was] penalizing me under the inaccurate belief that the dismissed sexual assault alleged in the police reports was not dismissed, despite the factual basis given during the plea stage. All my attempts were rejected by the court.
14. After serving the full 7-years of the sentence, on June 1, 2004, I was transferred to the Special Treatment Unit, located in Kearny, N.J., and held under the New Jersey Civil Commitment statute, N.J.S.A. 30:4-27.31 (The Sexually Violent Predator Act).
15. While confined, my assigned attorney, Mr. John Douard, A.D.P.D., investigated the 1996 case, wherein he and Mr. Ronald Price, an Investigator, interviewed the alleged victim , who gave a written statement, asserting that: She never identified me as the assailant. Her statement is completely contrary to the allegation made in the police report, which claim[s] she made a positive identification of me.
16. It has now been discovered that the police reports are completely fabricated, and that counsel at the plea agreement phase misrepresented the facts to me and tricked me into entering a guilty plea, despite my doubts to the accuracy of the identification.
17. The alleged victim's statement substantially undermines the validity of the plea agreement.
[(Emphasis in original).]
An order was entered on April 3, 2006, for the assignment of counsel to represent Roberts on his PCR petition. On April 17, 2006, however, before counsel could submit any papers, the trial judge denied the PCR application, citing the denial of the earlier application, a lack of evidence to support the claim, and failure to provide a basis for "excusable neglect" to overcome the five-year bar of Rule 3:22-12(a). Roberts appealed. We reversed and remanded for the assignment of PCR counsel. State v. Roberts, A-4687-05T4 (App. Div. May 22, 2007).
On remand, Roberts was assigned counsel, who made further submissions to the trial court, including the victim's June 22, 2007, certification to the truth of her prior, unsworn statement from September 2005 and an earlier, inconclusive DNA report from the State Police. Oral argument was held on July 26, 2007, but Roberts' request for an evidentiary hearing was denied. The trial judge denied the PCR application in a written opinion, dated July 30, 2007. After finding that Roberts had not overcome the five-year procedural bar, he nevertheless addressed the merits of the application, as follows:
An investigator from the Office of the Public Advocate took a written statement from the victim  on 9/27/05, and a certification on 6/22/07. No contact information for [the victim] such as an address or a telephone number is reflected in either document. No attempt was made by the investigator who took the statement to determine if [the victim] could or could not identify Mr. Roberts as the perpetrator of this offense. This alleged "recantation statement must be compared to the sworn statement provided by [the victim] to Detective Eutsey at the time of the incident where she positively identifies the defendant as her assailant, and signs her name and dates the back of Mr. Roberts['] police photo. [The victim] additionally claims that no one contacted her after she was allegedly unable to identify her assailant in her hospital room. This is, likewise, clearly false as two (2) weeks prior to the 9/27/05 "recantation" statement [the victim] was in the Essex County Prosecutor's Office providing a biological sample in this matter. At no time during the taking of this sample did [the victim] indicate to any representative of the Essex County Prosecutor's Office that her identification of Mr. Roberts, or any police report was false in regards to this matter. The statement given by the victim almost ten (10) years after the date of the incident is riddled with inconsistencies, and is inherently suspect and untrustworthy. The New Jersey State Police Office of Forensic Sciences DNA Laboratory Report determined that no conclusion could be reached concerning [the victim] as a possible contributor to the DNA profile obtained from the specimens examined regarding this case.
The alleged recantation, and the DNA results are, thus, not legitimate grounds for granting the defendant the relief that he seeks.
Petitioner has not shown how counsel's conduct prejudiced him within the meaning of the effective assistance of counsel standard. The claimed errors do not overcome the presumption that counsel's conduct was within the wide range of acceptable, reasonable professional assistance, nor do they demonstrate prejudice to defendant sufficient to undermine confidence in the outcome of the proceeding. Moreover, and of equal importance, thorough study of the record shows that defendant was provided a rigorous, viable defense, and that his counsel's performance was not unreasonable or inadequate. Defense counsel was conscientious and zealous in the representation of the petitioner. The record does not support or even give rise to a fair inference that counsel's performance was in any way inadequate or below a level of reasonable competence.
Finally, even assuming that counsel's performance could in some way be characterized as deficient, which I do not find, his conduct was not so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction. State v. Fritz, 105 N.J. 42 (1987); see also Strickland v. Washington, 466 U.S. 668 [, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984)].
The defendant accepted a very favorable plea bargain on A96-07-1128 that was worked out by his attorney. This represented his fourth indictable conviction. The sentence on A96-07-1128 was to run concurrent to the sentence on A96-06-936 Third Degree Theft and a violation of parole. A review of the 7/16/96 plea transcript clearly reflects that Mr. Roberts admitted that he held the victim against his will, and prevented her from leaving with the intent to assault her. He has never repudiated or retracted this factual basis to the Second Degree Kidnapping in any of his previous correspondence with the court, prior to the filing of this petition. His plea was entered truthfully, voluntarily and understandingly, and there is no "manifest injustice" to correct, pursuant to R. 3:21-1.
In short, petitioner has failed to meet the heavy burden of proof that, but for his counsel's performance, the result would have been any different. The defendant has failed to set forth a prima facie case, and is not entitled to a full evidentiary hearing. The record is entirely barren of any proof of petitioner's allegations.
This appeal followed.
On appeal, Roberts raises the following arguments:
ROBERTS' PETITION WAS NOT TIME BARRED UNDER R. 3:22-12(a).
ROBERTS' PETITION FOR POST-CONVICTION RELIEF WAS NOT TIME BARRED BECAUSE NEW EVIDENCE BEYOND ROBERTS' CONTROL WAS NOT DISCOVERED UNTIL AFTER THE FIVE YEAR LIMITATION.
THE TRIAL COURT ERRED IN DENYING ROBERTS AN EVIDENTIARY HEARING.
In a supplemental brief filed by Roberts pro se, he raised the following:
DEFENDANT SUBMITS THAT THE FIVE YEAR BAR SET FORTH IN R. 3:22-12 SHOULD BE RELAXED DUE TO EXCUSABLE NEGLECT AND IN THE INTEREST OF JUSTICE.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST CONVICTION RELIEF OR, AT MINIMUM, HOLDING A[N] EVIDENTIARY HEARING [CONCERNING] DEFENDANT'S PLEA ATTORNEY'S FAILURE TO INVESTIGATE OBVIOUS SIGNIFICANT AVENUES OF DEFENSE, INCLUDING THE INTERVIEWING OF THE COMPLAINTANT WHO WOULD HAVE DIRECTLY EXCULPATED DEFENDANT, WHICH UTTERLY DEPRIVED [DEFENDANT] OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS.
We disagree with the trial judge's conclusion that Roberts' PCR petition is time barred by the five-year-limitation provision of Rule 3:22-12(a). The basic premise of Roberts' case is that he pled guilty to a crime he did not commit because he was informed by the State and his defense attorney that he had been positively identified by the victim when, in fact, the victim subsequently claimed that she had been unable to identify her assailant. Roberts did not learn of the victim's claim that she had never been able to identify her assailant until sometime in 2004, when his court-appointed counsel in the SVP matter sent investigators to speak with the victim. She did not give her first written statement to that effect until September 2005.
While this apparent "recantation" might have been discovered had counsel actually been appointed in connection with Roberts' motion in January 2001, counsel was never appointed because the application was denied prior to processing of the appointment.
Under those circumstances, the "excusable neglect" standard of Rule 3:22-12(a) has been satisfied.
Roberts argues that the trial judge should have held an evidentiary hearing with respect to his allegations of ineffective assistance of counsel, relying on State v. Preciose, 129 N.J. 451, 462 (1992) ("Thus, trial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of- counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief.").
Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient; and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). In State v. Johnson, 365 N.J. Super. 27, 34 (App. Div. 2003), certif. denied, 179 N.J. 372 (2004), we noted that "[i]t is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial."
In reviewing such claims, courts apply a strong presumption that defense counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. "[C]complaints 'merely of matters of trial strategy' will not serve to ground a constitutional claim of inadequacy . . . ." Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. den., 374 U.S. 855, 83 S.Ct. 1924, 10 L.Ed. 2d 1075 (1963), overruled in part on other grounds by State v. Czachor, 82 N.J. 392 (1980)); see also State v. Perry, 124 N.J. 128, 153 (1991).
The question becomes whether Roberts has articulated a prima facie case of ineffective assistance of counsel that would warrant a hearing. Roberts' argument is premised on the assertion that his defense attorney told him that the victim had identified him and that he, defense counsel, had verified that assertion, when, in fact, the victim had not made such a positive identification. If true, that would, in our view, constitute deficient representation. Indeed, if there was actually no positive identification by the victim, there might be additional grounds for relief.
Roberts relies on the victim's statement, signed in September 2005 and certified as true in June 2007, that she was never able to identify her assailant, even after viewing a photographic array. In response, the State asserts that there was, in fact, a positive identification of Roberts as the assailant by the victim shortly after the assault, which identification was made in writing and under oath. Thus, there are conflicting statements under oath from the victim as to whether she made a positive identification of the victim. In addition, the current record contains only Roberts' version of the statements made to him by defense counsel at the time of the plea.
While we recognize that "[c]courts generally regard recantation testimony as suspect and untrustworthy," State v. Carter, 69 N.J. 420, 427 (1976), we have concluded that a plenary hearing is necessary to resolve the conflict. The trial judge's opinion sets forth factors that he viewed as undercutting the credibility of the victim's "recantation," including the failure of her statement to contain her address and to aver that Roberts in particular was not the assailant.*fn1
However, the Supreme Court held in Preciose, supra, that, "[a]s in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." 129 N.J. at 462-63. The trial judge failed to do so, and instead made a credibility finding based solely on a review of the papers. As the Supreme Court observed in Carter, supra, 69 N.J. at 427-28:
The determination of the credibility or lack thereof of recantation testimony is peculiarly the function of the trial judge who sees the witnesses, hears their testimony and has the feel of the case. Manner of expression, sincerity, candor and straightforwardness are just some of the intangibles available to the trial judge in evaluating the credibility of recantation testimony.
We do not believe that such evaluations of credibility can be made on the basis of competing certifications. An evidentiary hearing is necessary for that purpose.
Consequently, we reverse the denial of Roberts' application for PCR and remand to the trial court for a plenary hearing in accordance with our opinion.