On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-06-2405.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Messano.
On June 23, 1992, the Essex County grand jury returned a twelve-count indictment against defendant Wayne Cole charging him with first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1); three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a) and 2C:14-2(a)(4); first-degree robbery, N.J.S.A. 2C:15-1; two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3; two counts of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree attempted kidnapping, N.J.S.A. 2C:13-1(b)(1) and N.J.S.A. 2C:5-1; and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4). The charges involved two separate assaults against two women on different dates. The State's proofs were substantial and included a statement from defendant admitting some involvement with both assaults, as well as outof-court identifications of defendant made by the two victims.
On September 21, 1992, pursuant to a plea bargain reached with the State, defendant pled guilty to six counts of the indictment, specifically, kidnapping, aggravated sexual assault, robbery, aggravated assault, and two counts of possession of a handgun for an unlawful purpose. The State recommended an aggregate sentence not to exceed forty years, with a twenty-year parole disqualifier. On March 29, 1993, the judge sentenced defendant to an aggregate term of thirty years with fifteen years of parole ineligibility. Defendant did not appeal his sentence.
Four years later, on June 12, 1997, defendant filed a motion pursuant to Rule 3:21-10 to reduce or change his sentence but withdrew the motion as reflected in the court's July 17, 1998 order. On February 22, 1999, defendant filed another motion seeking probation and a suspended sentence pursuant to Rule 3:21-7, which was also withdrawn. On September 28, 1999, defendant filed another motion for a reduction or change in sentence pursuant to Rule 3:21-10 which was denied on October 13, 1999.
On November 30, 2000, more than seven years after his conviction, defendant filed a pro se PCR petition. He alleged that his trial counsel provided ineffective assistance during the plea negotiation phase, contending that the State exacted a more punitive plea agreement because his attorney advised him not to take an AIDS test at the State's request; and that counsel was generally inattentive to his case. Defendant also filed a brief in which he argued that trial counsel was ineffective "at the plea bargaining stage because she failed to pursue a pre-trial motion to suppress" statements defendant made to the police at the time of his arrest; and that the procedural bar of Rule 3:22-12 should be relaxed in the interest of justice. Defendant explained the reason for his delay in filing his PCR petition as follows:
In September of 2000 I began to think about the fact that I have not seen or heard from my daughter in a year. I also began to analyze my whole situation. Only then did I realize the depth of Lisa Morgan's hatred for me. I began to realize the treatment that I received from Lisa Morgan [and defense counsel] may be connected in some way. Thus[,] this petition.
Morgan was defendant's girlfriend at the time of the crimes and defendant believes, the mother of his child. Defendant claimed that Morgan was instrumental in retaining trial counsel to represent him, and implied that Morgan and trial counsel may have been romantically involved.
Appointed PCR counsel filed a brief in which he claimed that trial counsel was ineffective for failing to engage in any "pretrial investigation or pretrial motions"; and was ineffective at sentencing because no "expert testimony" was provided regarding defendant's "mental condition at the time of these incidents and the effect that the devastating los[s] of his father had on his life [which] would have . . . mitigate[d] the circumstances of the crime and provide[d] [defendant] with the opportunity to receive a lower sentence." PCR counsel also alleged that Megan's Law, N.J.S.A. 2C:7-1 to -23, applicable to defendant as part of his sentence, was unconstitutional.
On August 25, 2006, Judge Thomas R. Vena heard oral argument on defendant's petition, entered an order denying relief, and appended a comprehensive, written letter opinion setting forth his reasons. After reviewing the procedural history and the evidence available to the State at the time of the plea, Judge Vena concluded that certain of defendant's claims, specifically that his sentence was excessive and that Megan's Law was unconstitutional, were procedurally barred by Rule 3:22-4, having never been raised on direct appeal. He found no compelling reasons to "lift the procedural bar," defendant having failed to demonstrate "a showing of fundamental injustice," R. 3:22-4(b), or "an infringement of [his] constitutional right[s]," R. 3:22-4(c).*fn1
Judge Vena then considered whether defendant's petition was time-barred under Rule 3:22-12, an "independent procedural bar . . . ." He noted that defendant "merely allege[d] that there would be an injustice if his [p]etition was time-barred but d[id] not provide sufficient facts or evidence to support his claim." Judge Vena concluded, defendant "ha[d] not provided any factual evidence of an injustice in this case, nor d[id] [p]petitioner deny his guilt of the crimes alleged." He found defendant's claims to be time-barred.
Judge Vena nevertheless considered the merits of defendant's petition. Regarding the claim that trial counsel was ineffective during plea negotiations, the judge concluded that defendant never contended that "but for counsel's errors, he would not have pled guilty and would have insisted on going to trial," quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 210 (1985). Judge Vena also determined that defendant failed to demonstrate that his attorney performed in a deficient manner, noting that trial counsel "obtained discovery, reviewed it and made supplemental discovery requests, and actively engaged in plea negotiations." Regarding the claim that counsel provided ...