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State v. Bermudez

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 28, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MANUEL J. BERMUDEZ, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 04-02-0252 and 04-02-0259.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 3, 2010

Before Judges Stern and Graves.

Defendant Manuel Bermudez appeals from an order entered on July 18, 2008, denying his petition for post-conviction relief (PCR). He raises the following issues for our consideration:

POINT I

DURING THE COURSE OF THE POST-CONVICTION MOTION, THE COURT BLATANTLY IGNORED THE UNCONTROVERTED EVIDENCE THAT DEFENDANT-APPELLANT SUFFERED FROM MENTAL ILLNESS, WHICH, COMPOUNDED BY HIS PHYSICAL AILMENTS, RENDERED HIM INCAPABLE OF ENTERING INTO A VOLUNTARY PLEA AGREEMENT.

POINT II

THE SENTENCING COURT WAS OBLIGATED BY LAW TO LIBERALLY CONSIDER DEFENDANT-APPELLANT'S APPLICATION TO WITHDRAW HIS GUILTY PLEA, AND ITS FAILURE TO DO SO UNDER THE CIRCUMSTANCES CONSTITUTED A MANIFEST DENIAL OF JUSTICE.

POINT III

TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBTAIN AN EXPERT PSYCHIATRIC ASSESSMENT OF DEFENDANT-APPELLANT TO CONSIDER HIS DIMINISHED MENTAL CAPACITY TO ENTER INTO THE PLEA AGREEMENT.

POINT IV

THE TRIAL COURT ERRED IN FAILING TO GRANT AN EVIDENTIARY [HEARING] DESPITE THE FACT THAT THERE WAS A PRIMA FACIE SHOWING THAT DEFENDANT'S TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO OBTAIN AN EXPERT PSYCHIATRIC ASSESSMENT OF DEFENDANT TO ADDRESS THE DIMINISHED CAPACITY ISSUE.

Based on our review of the record and applicable law, we conclude that these arguments are clearly without merit. R. 2:11-3(e)(2). Accordingly, we affirm with only the following comments.

Ocean County Indictment No. 04-02-0259 charged defendant with five counts of third-degree attempt to lure or entice a child into a motor vehicle with a purpose to commit a criminal offense in violation of N.J.S.A. 2C:13-6; three counts of third- degree endangering the welfare of a child in violation of N.J.S.A. 2C:24-4(a); and two counts of fourth-degree criminal sexual contact in violation of N.J.S.A. 2C:14-3(b). Pursuant to a negotiated plea agreement on July 27, 2004, defendant pled guilty to all five counts of attempting to lure or entice a child into a motor vehicle, and the two counts of criminal sexual contact. In exchange for defendant's guilty pleas, the State agreed to dismiss the remaining counts of the indictment and to recommend a four-year prison term. Defendant also pled guilty to the single count of Ocean County Indictment No. 04-02- 0252, which charged him with third-degree attempted bail jumping in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:29-7. With regard to the bail jumping charge, the State agreed to recommend a four-year term, with the court deciding whether the two sentences would be concurrent or consecutive.

At the plea hearing, defendant testified he could read and write and that he understood all of the questions on the plea form. He also testified he understood the charges and the plea agreement, he was entering the guilty pleas voluntarily, and he was satisfied with the advice and counsel provided by his attorney. In addition, defendant set forth an adequate factual basis for his guilty pleas and, in response to questions by the prosecutor, defendant testified as follows:

Q: Sir, drawing your attention back to the indictment with regard to the luring. You gave a statement in this matter to Detective Mitch Cowit of the Jackson Township Police Department, correct?

A: Correct.

Q: You recall giving that statement?

A: Yes, I do.

Q: When you discussed the age of each of your victims you made a representation to him that you had no doubt in your mind that these were children under the age of 18; is that correct?

A: Correct.

Q: In fact, you described in your statement that you believed these children to be anywhere between 11 and 13 years of age; is that correct, sir?

A: Yes.

Q: You have gone over the discovery with your attorney?

A: Yes.

Q: And you know that each of your victims were in fact under the age of 18?

A: Right.

....

Q: With regard to the luring counts, you indicated that it was your purpose to commit a criminal offense --

A: Yes.

Q: -- when luring them into your ice cream truck?

A: Yes.

Q: That criminal offense was in fact a sexual contact, correct?

A: Correct.

....

Q: In fact, in the course of your statement you indicated that you touched one of your victims on her breast; is that correct?

A: Correct.

Q: Was that A.B.?

A: Yes.

....

Q: Okay. Now, with regard to Count Five, sexual contact involving the victim A.L., again you admitted that you committed an act of sexual contact; is that correct?

A: Yes.

Q: You touched the intimate parts of A.L.?

A: Right.

Q: Specifically what parts, sir?

A: The vagina.

Q: You touched her on her vagina?

A: Yes.

Q: Over her clothing?

A: Right.

Q: And you did this for your own sexual gratification on both of these occasions with regard to A.B. and A.L.?

A: Yes.

Nevertheless, when interviewed in connection with the preparation of a presentence report, defendant claimed he was innocent:

[DEFENDANT] STATED HE NEVER TOUCHED THE VICTIMS. HE FURTHER ADVISED THE VICTIMS, 12 YEAR OLD FEMALES, CONTINUALLY ATTEMPTED TO ROB HIS ICE CREAM TRUCK. HE STATED HE CREATED AN ICE CREAM CLUB SO HE COULD GIVE THEM ICE CREAM FOR FREE BECAUSE HE "FELT BAD THEY WERE TRYING TO ROB HIM" AND DIDN'T WANT THEM TO GET IN TROUBLE. [DEFENDANT] ADVISED THE GIRLS BROKE INTO HIS TRUCK AND TRIED TO TOUCH HIM. WHEN CONFRONTED WITH QUOTES FROM A TRANSCRIPT OF A TAPED STATEMENT HE GAVE JACKSON POLICE [DEPARTMENT], HE INSISTED IT WAS A "MISCOMMUNICATION" AND HE DID NOT DO ANYTHING.

Prior to sentencing, defendant filed a motion to withdraw his guilty pleas but the trial court denied the motion, concluding that the pleas were entered "truthfully, voluntarily, and understandingly," and defendant failed to demonstrate "a plausible basis" for withdrawing the pleas. Defendant was then sentenced in accordance with the plea agreement to concurrent four-year prison terms on each of the attempt to lure charges. Defendant received concurrent nine-month terms for the two sexual contact charges, and he was sentenced to a concurrent four-year term for attempted bail jumping.

Defendant did not file a direct appeal. However, in a certification in support of an amended PCR petition, defendant claimed he did not understand the plea agreement, his attorney forced him into taking the plea, and he was innocent.

Paragraphs two through six of defendant's certification reads as follows:

2. I did not have my hearing aids at the time of the plea entry. I suffered substantial hearing loss as a result of my service in the military during the Persian Gulf War.

3. I was also diagnosed by physicians at the VA clinic in Bricktown, NJ as suffering from schizophrenia and depression.

4. As such, I was unable to understand the plea that I was entering.

5. Moreover, my attorney was well aware that my only wish throughout these proceedings was to proceed to trial. I continue to maintain my innocence with respect to this matter despite completing my 4 year NJSP sentence. My attorney forced me into taking the plea.

6. At the time of the plea, I was worried that, in light of my attorney's unwillingness to proceed pursuant to my direction, I was at an extreme disadvantage at trial. I feared that I would not receive the representation necessary to represent my best interests.

Following oral argument on July 18, 2008, the PCR court denied defendant's petition. In a comprehensive oral decision, the court noted defendant never indicated "in any way, shape or form that he had difficulty hearing" when he entered his plea and, as demonstrated by the transcript of the plea hearing on May 27, 2004, "all of the defendant's answers to all of the judge's questions were responsive." In addition, the court found there was no support in the record for defendant's other PCR claims.

Based on our independent review of the entire record, we find no abuse of discretion or reversible error by the trial court. As the trial court found, there is no basis to vacate defendant's guilty pleas. See State v. Slater, 198 N.J. 145, 157 (2009) (noting that a "whimsical change of mind" by a defendant is not an adequate basis to set aside a plea) (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div. 1974)).

Moreover, there is no factual support in the record for defendant's claims that he was forced to accept the plea agreement and that his trial attorney was ineffective. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 687 (1984) (requiring a defendant to show that "counsel's performance was deficient" and that "the deficient performance prejudiced the defense"); see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two- part test in New Jersey). Consequently, we affirm the denial of defendant's petition substantially for the reasons stated by Judge Den Uyl in his comprehensive oral decision on July 18, 2008.

Affirmed.

20100628

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