March 10, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SANFORD RYLES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 02-12-00770.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 22, 2010
Before Judges R. B. Coleman and Baxter.
Defendant Sanford Ryles appeals from a May 22, 2008 order that denied his petition for post-conviction relief (PCR). We reject defendant's argument that the PCR judge erred when he found the victim's recantation testimony unpersuasive and denied defendant's motion for a new trial. We likewise reject defendant's claim that he was entitled to withdraw his guilty plea because trial counsel misinformed him about the impact of that plea on his military career. We affirm.
In December 2002, a Gloucester County grand jury returned a ten-count indictment charging defendant with several counts of second-degree sexual assault upon his fourteen-year-old sister-in-law, C.V., by engaging in sexual intercourse with her on various occasions between March 2001 and March 2002. The indictment also charged him with related counts of endangering the welfare of a child. On February 9, 2004, defendant entered a negotiated plea of guilty to one count of third-degree endangering the welfare of a child, admitting that he had touched C.V.'s "butt" for the purpose of his own gratification when she was under the age of sixteen. In accordance with the plea agreement, defendant was sentenced on June 22, 2004 to community supervision for life in lieu of any probationary time, and was not sentenced to a term of imprisonment.
Nearly two years later, on January 23, 2006, defendant filed the PCR petition that is the subject of this appeal. He argued that trial counsel ignored his request for a jury trial, refused to investigate the allegations made by C.V. and pressured him into pleading guilty. He further maintained that he was innocent of the charge to which he pled guilty, and would never have engaged in sexual activity with his sister-in-law, who "was like a daughter to [him]." He supported his claim of innocence with an affidavit of recantation from C.V. Last, defendant asserted that trial counsel rendered ineffective assistance by wrongly advising him that his guilty plea to a sex offense would have no bearing on his military career; and if he had known the true facts about the impact of his conviction, he would never have entered a plea of guilty.
During the evidentiary hearing, defendant presented C.V. as a witness. Defendant married C.V.'s sister, Candice, in 1998, when C.V. was ten years old. Defendant, Candice, C.V., and C.V.'s brother all lived with Cindy, who was C.V.'s and Candice's mother. C.V. testified that while defendant was away from home for military training, her sister Candice told their mother "some crazy story" about defendant striking her with exercise dumbbells. Candice also told C.V. that defendant had been "raping her every night." When Candice reported to Cindy what defendant had been doing to her, Cindy insisted that C.V. falsely accuse defendant of sexually assaulting her.
According to C.V., her mother and sister "took things that they knew would be on some kind of record that they could twist." For example, Candice and defendant had gone to a motel to celebrate their anniversary and, knowing that the motel would have a record of defendant renting a room at the motel, Candice instructed C.V. to tell police that defendant had taken C.V. to the motel for purposes of sex. C.V. also testified that she lied when she told police that defendant had given her a ring as a sign of his affection.
When C.V. was asked whether she and defendant had ever exchanged intimate e-mail correspondence while he was away, C.V. testified that they had not. She explained that her sister asked her for her e-mail address and must have used it to make it appear that C.V. and defendant had been exchanging e-mail.
According to C.V., when Cindy learned that Candice had lied, and that defendant had never assaulted Candice, Cindy kicked Candice out of the house; however, according to C.V., Cindy was afraid to tell police that the accusations made against defendant were fabricated and untrue. C.V. was asked why it had taken her nearly four years, or until November 2005, to come forward and clear defendant's name. She responded that she had been living with Candice, who did not want her to recant, and after Candice "threw [her] out," she had been living with her brother "on the streets." She also explained that her mother had died in March 2003, and once her mother died, she felt more comfortable coming forward to clear defendant's name. C.V. did not explain why she waited nearly three years after her mother's death to do so.
Defendant also testified at the PCR hearing. He explained that he separated from Candice in March 2005. He insisted that he had never engaged in sexual relations with C.V. and pled guilty to inappropriately touching her only because his attorney told him he would "probably lose" at trial and would face a considerable prison sentence. According to defendant, his attorney assured him that because he would be placed on probation, his conviction would have no impact on his Army career or his plans to become a Judge Advocate at the Army's Judge Advocate General corps.
Defendant acknowledged that when he entered his guilty plea under oath in 2004 and told the judge that he had inappropriately touched C.V., he had told the judge a lie. When asked whether he had ever given C.V. a ring, he contradicted C.V.'s testimony and explained that he had "handed" C.V. a ring so that C.V. could give it back to Candice. He also explained that he had never taken C.V. to a motel, and contended that Candice was able to obtain the motel receipt from the occasion when he and Candice had gone to the motel together.
As to the e-mail, defendant denied ever sending any such messages to C.V. He insisted that his estranged wife knew his e-mail address and simply went online and used his e-mail address to fabricate racy e-mails to C.V. On cross-examination, defendant conceded that there would be considerable "financial benefits" to him if he were able to "get [his] military pension back" by succeeding in vacating his conviction.
At the conclusion of the testimony, the parties stipulated that defendant's prior attorney had asked an investigator to contact Yahoo!*fn1 to learn if the e-mail purportedly sent to C.V. by defendant had originated from New Jersey, which would corroborate defendant's assertion that Candice had fabricated the e-mails, or if instead, the e-mails to C.V. had originated from Virginia where defendant was stationed. The parties also stipulated that after defendant's case was transferred to a second attorney, who was the same attorney representing defendant at the time he entered his guilty plea, counsel had instructed the investigator not to pursue the investigation with Yahoo!.
In a comprehensive oral opinion covering thirty-four transcript pages, Judge Becker rejected defendant's claim of innocence and C.V.'s recantation. In particular, the judge provided detailed reasons for concluding that neither was credible. As to C.V., whose testimony the judge had earlier described as "very vague on the dates and times these things happened" and "glossing over things," the judge found that her testimony was riddled with inconsistencies and therefore not worthy of belief. As to defendant, the judge observed that when "answering straightforward questions [such as his] name, address, [and] where you're from" defendant "had a very different demeanor" than "when he was being questioned on . . . the incident." The judge was also unwilling to "believe that a man [of defendant's] military rank, education and experience with the law would have been so easily swayed by his attorney to plead guilty to a crime he truly did not commit."
Relying on State v. Carter, 69 N.J. 420, 427 (1976), the judge recognized that recantation testimony is generally viewed as "suspect and untrustworthy." Finding C.V.'s testimony contradictory, vague and lacking in credibility, and applying the skepticism of recantation testimony that Carter requires, Judge Becker rejected defendant's claim of newly-discovered evidence and denied defendant's motion for a new trial.
Next, the judge evaluated defendant's claim that his attorney rendered ineffective assistance by failing to conduct an adequate pretrial investigation and by failing to share the pretrial discovery with defendant. The judge concluded that in light of the incriminating e-mails, it was unlikely that further pretrial investigation would have caused defendant to insist on a trial, especially in light of the favorable plea agreement he was offered.
Last, the judge rejected defendant's claim that counsel rendered ineffective assistance when he gave defendant erroneous legal advice on the effect a criminal conviction would have on defendant's military career. Relying on State v. Heitzman, 107 N.J. 603, 604 (1987), the judge held that erroneous information provided by trial counsel on "collateral consequences" of a guilty plea does not warrant post-conviction relief.
On appeal, defendant raises the following claims:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL AND PETITION FOR POST-CONVICTION RELIEF.
1. The certifications and testimony introduced by defendant in the court below warranted vacating his guilty plea and ordering a trial on the charges against defendant.
2. Defendant established at least a prima facie case of ineffective assistance of counsel that warranted an evidentiary hearing below.
A. Counsel failed to sufficiently investigate the State's witnesses and obtain evidence and testimony that would have refuted the State's charges.
B. Counsel "pressured" defendant into the plea.
C. Defendant's plea was also invalid, and post-conviction relief also warranted, because counsel misinformed defendant about the effect of the plea on his military status and benefits.
D. At the very least, the trial court erred in rejecting defendant's ineffective assistance claim without conducting an evidentiary hearing.
In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was indeed deficient. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The precepts of Strickland have been adopted by New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987).
Prejudice is not presumed. Fritz, supra, 105 N.J. at 61. Defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984).
When a trial judge has heard the testimony of witnesses, had the opportunity to observe their demeanor and has rendered detailed findings of fact, our review of those findings is extremely narrow. State v. Locurto, 157 N.J. 463, 470-71 (1999). An appellate court does not "engage in an independent assessment of the evidence as if it were the court of first instance." Id. at 471. Instead, we must "'give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). So long as the judge's findings of fact "'could reasonably have been reached on sufficient credible evidence present in the record . . . [considering] the proofs as a whole'" they are binding upon us. Ibid. (quoting Johnson, supra, 42 N.J. at 162).
After our careful review of the record, we are satisfied that Judge Becker's meticulous findings of fact are entitled to our deference. Although defendant points to portions of the record in an effort to persuade us that the judge should not have rejected C.V.'s recantation, we will not sift through the record in search of an isolated remark that might conceivably support defendant's contentions. Ibid. As we have noted, Judge Becker provided detailed and persuasive reasons for finding the testimony of both C.V. and defendant unworthy of belief. We will not second-guess those reasons or substitute our judgment for his. Ibid.
Moreover, as the judge correctly noted, recantation testimony, such as that provided by C.V., must be looked at "with a certain degree of circumspection to ensure that it is not the product of fabrication . . . ." State v. Ways, 180 N.J. 171, 188 (2004). Where recantation testimony is the asserted newly discovered evidence, as it was here, such evidence is generally regarded as "suspect and untrustworthy." State v. Carter, 69 N.J. 420, 427 (1976).
This inhospitable view of recantation makes sense, because in the absence of a mistake or a new recollection, a recanting witness must either have lied under oath when she filed the complaint or lied in her recantation. Therefore, the burden is always on defendant to show that the recantation testimony is "probably true and the trial testimony probably false." Ibid. That being so, we have been presented with no meritorious basis upon which to reject Judge Becker's comprehensive and well-reasoned oral opinion refusing to accept C.V.'s recantation and refusing to grant defendant a new trial. We thus reject the claim defendant advances in point 1.
We turn to point 2, in which defendant argues that trial counsel rendered ineffective assistance by failing to conduct an adequate pretrial investigation and by rendering erroneous legal advice on whether defendant's guilty plea would require him to forfeit his military career and pension. As to defendant's claim of inadequate pretrial investigation, a defendant must do more than make general assertions that his attorney did not properly investigate the case. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999) (observing that a PCR petitioner must "allege facts sufficient to demonstrate counsel's alleged substandard performance" and that more than "bald assertions" are necessary to establish a prima facie claim). In the absence of the specific allegations that Cummings demands, defendant's assertion that trial counsel "did not investigate the alleged victim or her statement" are the sort of "bald assertions" that Cummings requires us to reject.
We also reject defendant's claim that trial counsel rendered ineffective assistance when he provided inaccurate legal advice about defendant's military career. As Judge Becker correctly reasoned, unless the incorrect advice concerns a direct penal consequence of a defendant's guilty plea, it will not entitle a defendant to relief. State v. Heitzman, 107 N.J. 603, 604 (1987).
Although in recent years, our Supreme Court has departed from the penal-collateral consequences dichotomy, it has done so only where the potential collateral consequences are extreme, thus warranting invocation of the fundamental fairness doctrine. See State v. Nuñez-Valdez, 200 N.J. 129, 137-38 (2009) (addressing immigration consequences); State v. Bellamy, 178 N.J. 127, 138 (2003) (holding that a defendant must be provided with accurate information about his eligibility for potential civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to 27-38). In both Nuñez-Valdez and Bellamy, the defendants were faced with the prospect of deportation or indefinite civil commitment after completion of the criminal sentence, which could well last longer than the criminal sentence itself.
No such drastic consequences are implicated here. As the loss of a military career is not a direct penal consequence and has none of the drastic consequences of deportation or involuntary commitment as a sexually violent predator, we conclude that the erroneous legal advice provided by trial counsel is not sufficient to require an evidentiary hearing on that subject or to require the vacating of defendant's conviction. See State v. Slater, 198 N.J. 145, 158-62 (2009). Applying the Slater criteria, it is evident that defendant's claim of innocence was rejected by the judge after a hearing; defendant's reasons for withdrawal of the plea are based only on a collateral consequence of that plea; the plea was entered as part of a plea bargain; and withdrawal of the plea would result in unfair prejudice to the State. See ibid. We thus reject the claims defendant advances in point 2.