On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-03-0647.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Fuentes and Gilroy.
Defendant Kevin L. Wiggins appeals from the November 16, 2007 order that denied his petition for post-conviction relief (PCR). We affirm.
On a date between September 17, 2002, and October 3, 2002, defendant, then a forty-two-year-old security guard employed at an assisted-living facility in Bergen County, unlawfully entered the room of an eighty-four-year-old female resident and sexually assaulted the resident. On March 20, 2003, a Bergen County Grand Jury charged defendant with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3) (Count One); second-degree burglary, N.J.S.A. 2C:18-2 (Count Two); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(7) (Count Three); second- degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count Four); and fourth-degree neglect of the elderly, N.J.S.A. 2C:24-8 (Count Five).
On November 3, 2003, defendant pled guilty to Count One in exchange for the State recommending a fourteen-year term of imprisonment, subject to an 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA);*fn1 a five-year period of supervision upon parole; and community supervision for life pursuant to Megan's Law.*fn2 On February 27, 2004, the trial court, finding aggravating sentencing factors N.J.S.A. 2C:44-1a(2), (3), (6), (9) and (12), and no mitigating sentencing factors, sentenced defendant in accordance with the terms of the plea agreement.
Defendant appealed his sentence. On June 1, 2005, we entered an order under the Excessive Sentence Oral Argument Calendar, R. 2:9-11, affirming the sentence. On February 16, 2006, the Supreme Court denied defendant's petition for certification. State v. Wiggins, 186 N.J. 256 (2006). On May 31, 2006, defendant filed a pro se petition for PCR. On July 27, 2007, assigned counsel filed a supplemental memorandum of law in support of the petition, raising the following arguments:
DEFENDANT MUST BE ALLOWED TO RETRACT HIS PLEA OF GUILTY BECAUSE HE WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL.
A. DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS ATTORNEY'S FAILURE TO EXPLAIN THE PROCEDURES AVAILABLE TO COUNTERACT POTENTIAL JUROR PREJUDICES AGAINST DEFENDANTS ACCUSED OF SEXUAL CRIMES.
B. DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO PROPERLY ASCERTAIN A FACTUAL BASIS, THEREBY ALLOWING HIM TO ENTER A PLEA OF GUILTY TO A CRIME HE DID NOT COMMIT.
C. DEFENDANT CAN SHOW THAT THERE IS A REASONABLE PROBABILITY THAT, BUT FOR HIS COUNSEL'S ERRORS, HE WOULD NOT HAVE PLEADED GUILTY AND ...