On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-07-1420.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Espinosa.
Defendant Stephen Tome, Jr. appeals from the January 23, 2009 order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing. Defendant had argued to the PCR judge, and renews the arguments on appeal, that his trial counsel was ineffective, and an evidentiary hearing was warranted, because counsel failed to advise him of his right to testify at trial, advised him to plead guilty to a lesser count of the indictment and to proceed to trial on the other count, and failed to present a key expert witness. We affirm.
On July 1, 2004, defendant was charged in Indictment No. SGJ-494-04-5 with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(5)(a) (count one), and fourth-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(5)(b) (count two). Prior to trial, defendant moved to dismiss count one of the indictment for insufficient evidence, to suppress evidence seized from defendant's residence pursuant to a search warrant, and to suppress the inculpatory statements made by defendant, which were denied. In subsequent motions, the court denied defendant's motion to preclude the State from introducing into evidence the child pornography found in defendant's possession.*fn1
On December 21, 2005, and January 4, 2006, there were lengthy discussions on the record between counsel and the court about the defense strategy of defendant pleading guilty to the second-degree charge prior to trial, his desire the jury be informed of the guilty plea, and his request for certain charges. Defendant, who was present during the colloquy, then entered an unconditional guilty plea to the fourth-degree endangering charge, which did not require him to register as a sex offender. Defendant acknowledged he was knowingly and voluntarily entering the plea, in accordance with the plea form he executed, with a full opportunity to discuss the charges with his attorney, with whose services he was satisfied. He expressly acknowledged there was no agreement with the State; he could receive a maximum sentence of eighteen months for the charge; he had a right to proceed to trial on the charge and if he did so, he would have an absolute right to testify on his own behalf or to remain silent without recrimination, in all instances similar to what he was doing on the other count; and by pleading guilty he was waiving those and other enumerated rights.
Defendant then testified to provide a factual basis for his guilty plea that he used the computer to copy images and movies from the Internet depicting underage children engaged in prohibited sexual acts and knowingly possessed and viewed those images. He further testified that he kept some of those images in a file designated as "My Music" in his computer, which was a file connected to a WinMX program.*fn2
Trial commenced the next day. As agreed, in its preliminary instruction the court informed the jury that defendant had pled guilty to the second count, namely, that he possessed and viewed child pornography on his computer, but that such plea could not be considered in determining whether he was guilty of the first count, namely, knowingly offering through the Internet the prohibited images.*fn3 In his opening, defense counsel told the jury that defendant had admitted guilt to the judge of searching the internet to find, copy and view child pornography in the privacy of his room, for which he was ashamed and for which the judge would determine the punishment. However, he asserted there was no evidence defendant distributed or offered anything to other people or that anyone copied anything from defendant. He repeated a similar theme in his closing. After several days of trial, during which defendant did not testify or present any witnesses, he was convicted of second-degree endangering the welfare of a child. On March 24, 2006, the court merged count two into count one, decided to sentence defendant within the range permitted for third-degree offenses, and imposed a three-year term of imprisonment that also required defendant to register as a sex offender. The sentence was stayed pending appeal.
We affirmed defendant's conviction and sentence in an unpublished opinion. State v. Stephen Tome, Jr., No. A-4283-05 (App. Div. April l8, 2007). The Supreme Court denied defendant's petition for certification on June 21, 2007. State v. Stephen Tome, Jr., 192 N.J. 74 (2007).
On or about August 23, 2008, defendant filed a PCR petition, which was denied by Judge Eugene Austin on January 23, 2009, following oral argument with defendant present but without an evidentiary hearing. The judge addressed the three claims of ineffective assistance of trial counsel, which defendant reargues on appeal: (1) counsel failed to explain or advise defendant about his right to testify at trial; (2) on the eve of trial, counsel advised defendant to plead guilty to fourth-degree endangering, the lesser offense (downloading, viewing and possessing child pornography), and to proceed to trial on the more serious count of the indictment, second-degree endangering (offering child pornography through a WinMX sharing system on his computer); and (3) counsel failed to present a computer expert who had prepared a report that would have supported a defense that pornographic files were not distributed from defendant's computer.
Based on his review of the record, the judge found defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Thus, an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992). Judge Austin referenced the trial transcript and concluded that defendant was informed of his right, and chose not to testify at trial. The judge further concluded the record demonstrated that it clearly was trial strategy to plead guilty to the fourth-degree offense the day before and take it "out of the picture" and perhaps convince the jury that justice had been served because defendant had already owned up to possessing child pornography. The judge was also satisfied that all other defense decisions, such as trial experts, were a matter of trial strategy that did not require second-guessing or hindsight. This appeal ensued.
The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l04 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's right to a fair trial such that there exists a "reasonable probability ...