On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-03-0569.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: August 3, 2010
Before Judges Axelrad and Espinosa.
Defendant P.T. appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) and request for an evidentiary hearing in which he asserted ineffective assistance of trial counsel. We affirm.
Defendant was charged in Ocean County Indictment No. 04-03-0569 with three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:l4-2a(2)(a) (counts one, four and nine); three counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts two, five and ten); three counts of third-degree aggravated sexual contact, N.J.S.A. 2C:l4-3a (counts three, six and eleven); two counts of second-degree sexual assault, N.J.S.A. 2C:l4-2c(3)(a) (counts seven and twelve); and two counts of fourth-degree sexual contact, N.J.S.A. 2C:l4-3b (counts eight and thirteen).
On June 21, 2004, defendant pled guilty to two counts of first-degree aggravated sexual assault (counts one and nine) and two counts of second-degree endangering the welfare of a child (counts two and ten), in connection with sexual assaults upon his teenage daughters at various times while they were between the ages of thirteen and sixteen years old. During the plea colloquy, defendant provided an extensive and detailed factual basis, including adopting the twenty-page statement he gave to the police in October 2003. He testified that on various occasions between l997 and l999 he exposed his genitals to his older daughter, made her touch his penis and masturbated and ejaculated in her presence, and on various occasions between l999 and 200l he engaged in similar sexual activities with his younger daughter, digitally penetrating her vagina, engaging in oral sex and masturbating in her presence.
Prior to sentencing, defendant, through counsel, filed a motion to withdraw the plea, which was denied by Judge Citta following oral argument by order of October l8, 2004. The court found there was "no justification whatsoever for the application to retract the guilty plea," noting that "[n]owhere in [defendant's] certification does it indicate anything other than he wishes to retract his plea because he's decided that the sentence is too long and nowhere does he set forth that there is any type of viable or plausible defense." The judge then sentenced defendant in accordance with the plea agreement to fifteen years in custody subject to an eighty-five percent period of parole ineligibility on count one (first-degree aggravated sexual assault), a consecutive term of fifteen years flat on count nine (first-degree aggravated sexual assault), and seven years flat each on counts two and ten (second-degree endangering) concurrent to one another and to count one.
Defendant appealed his sentence, which was heard on an Excessive Sentence Oral Argument calendar. We affirmed the judgment of the trial court in February 2006. In June 2006, the Supreme Court, on petition for certification, summarily remanded the matter to the Appellate Division to supplement our order and address defendant's argument that the trial court should have granted his motion to withdraw the plea. By supplementary order of August 10, 2006, we affirmed the denial of the motion to withdraw the plea "for the reasons set forth in [Judge Citta's] extensive oral opinion." We expressly noted this was a "negotiated plea to a specific term of years substantially less than defendant was exposed to under the statute," the plea was entered into "knowingly and voluntarily" and "defendant presented 'no plausible defense' and 'no justification whatsoever for the application to retract the guilty plea.'" By an order in November 2006, the Supreme Court addressed our supplemental order and denied defendant's petition for certification.
In April 2008, defendant filed a pro se PCR petition in which he maintained he had been denied adequate legal representation by trial counsel who did not return phone calls from his family, did not honor his request to make a motion for the judge to recuse himself, and coerced him into accepting the plea agreement; his medication was not stable enough when he accepted the plea agreement; his constitutional rights were violated when his motion to retract the plea was denied; he had a potential defense of diminished capacity, which was never explored by trial counsel; and he questioned the applicability of the No Early Release Act to his crimes. PCR defense counsel supplemented these contentions and emphasized that defendant had not been mentally competent at the time of the plea hearing. He relied, in part, on the discharge summaries from Kimball Medical Center (October 2, 2003) and from Ancora Psychiatric Hospital (October 9, 2003), and urged that defendant was entitled to an evidentiary hearing.
At oral argument on February 4, 2009, PCR counsel referenced defendant's history of mental illness, the various medications defendant had been taking at the time of the plea, the failure of trial counsel to conduct any pretrial investigation, and trial counsel's failure to explore a potential diminished capacity defense or to request a competency hearing. Judge Den Uyl addressed and rejected each of these contentions in an oral ruling, finding defendant failed to make a prima facie showing of ineffectiveness of counsel warranting an evidentiary hearing, and denied defendant's PCR application, memorialized in an order of the same date. In particular, the judge noted defendant's assertion that he did not understand the nature of the plea because he was suffering from Bipolar Disorder and depression and was taking ten prescription medications. The judge found, however, that the plea hearing demonstrated otherwise. Referencing the record, the judge noted that defendant stated he fully understood all aspects of the plea agreement, acknowledged his knowing and voluntary acceptance of the plea agreement and answered specific questions about his waiver of rights, his possible exposure, and all aspects of the negotiated plea. As further evidence that defendant was aware of his actions during the plea, the judge noted that defendant "relayed a detailed factual basis and showed no signs of memory loss." The PCR judge also emphasized that Judge Citta was fully aware of and discussed with defendant the specific medications he was taking at the time, expressly asking whether any of them affected his ability to understand the proceedings. Judge Den Uyl quoted the following colloquy from the record of the plea proceedings:
[Judge Citta] then stated that, "All I want to do is make sure that any medicines that you're taking have not impaired your ability to listen to your lawyer's advice, review your discovery, understand these forms, and understand what you are doing here today," to which ...