July 14, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDDIE SHEPPARD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment 06-06-00718.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 22, 2011
Before Judges A.A. Rodriguez and LeWinn.
Defendant appeals from the May 8, 2009 order denying his petition for post-conviction relief (PCR) based upon claims of ineffective assistance of trial counsel. We affirm.
On or about June 13, 2006, defendant was indicted on two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The charges involved two victims, one under the age of thirteen and the other under the age of sixteen.
On December 21, 2006, defendant appeared with counsel for a status conference. His attorney advised the judge that he would request a hearing pursuant to N.J.R.E. 803(c)(2) regarding the admissibility of the young victims' statements. The prosecutor advised the judge that plea negotiations were in progress, but that defendant was insisting on a probationary sentence conditional upon his serving 364 days in the county jail, and the State could not approve that. The prosecutor agreed to recommend a plea to two counts, concurrent sentences, and, pursuant to N.J.S.A. 2C:44-1(f)(2), sentencing defendant as if he had been convicted of third-degree offenses. Such a sentence would leave defendant with a maximum exposure of five years and would eliminate any periods of parole ineligibility.
The judge advised defendant that, no matter what sentence he ultimately received, he would have to "comply with Megan's Law"*fn1 and would be subject to parole supervision for life. Defendant expressed concern about being released to go home to care for his mother who had just undergone surgery. The judge advised defendant that that was not possible, adding that he was willing to sentence him to a flat three-year term of imprisonment, but he was "not going to let [him] out." The judge further advised defendant that, if he wanted a trial, it would likely not be scheduled until September or October 2007, due to the judge's trial schedule.
Defendant accepted the negotiated plea agreement and pled guilty to the two counts of endangering the welfare of a child. Defendant stated that he was pleading guilty voluntarily and because he was guilty. He gave the following factual basis: (1) in March 2006, he placed his hand on the vagina of N.R.,*fn2 who was less than thirteen years old at that time, and that he did so for his own sexual gratification; (2) in June 2003, he "grabbed" the breast of L.G., who was less than sixteen years old at that time, for his own sexual gratification; L.G. is "part of [defendant's] extended family," and he had "some disciplinary authority over" her. Defendant acknowledged that his conduct "would tend to impair or debauch the morals" of the two girls.
The judge then reviewed the plea form with defendant and asked if he understood that "as a result [of his pleas] something called Megan's Law is going to kick in[,]" and he was "going to have to register with public agencies." Defendant stated that he understood. The judge further explained that defendant would have to "register with law enforcement and keep them apprised of where [he] live[d]" and the failure to comply was "a fourth[-]degree crime" with a maximum sentence of eighteen months. The judge also advised defendant about parole supervision for life and that, depending on what "tier level" he was classified for Megan's Law purposes, there could be "internet posting of [his] photograph" and identifying information. Again, defendant stated that he understood.
Regarding parole supervision, defendant asked if that would be for a term of fifteen years. The judge explained that it is "for life" but defendant could apply to a court to be removed from it after fifteen years. Defense counsel asked, "You and I actually discussed that at length, right?" Defendant responded, "Yeah, I want to know."
At sentencing on March 16, 2007, defendant acknowledged that he "made a stupid mistake when all of this stuff had taken place." Defense counsel noted that in his post-plea evaluation by the Adult Diagnostic and Treatment Center, defendant had stated he was innocent of the charges. Counsel stated that he discussed that with defendant who, "[d]espite his statements in that . . . report, . . . does still affirm his guilty plea."
The judge then sentenced defendant to two concurrent three-year terms of imprisonment; he also imposed the proper statutory fines and assessments. The judge advised defendant that he had forty-five days within which to appeal, that a lawyer would be appointed to represent him if necessary and that if he did not file an appeal within the allotted time, he would "lose his right to appeal."
On October 11, 2007, defendant filed his PCR petition, raising numerous claims of ineffective assistance of counsel, including (1) failing to "conduct any pre-trial investigation" and to "file any pre-trial [m]otions"; (2) misleading him by advising him that the judge "would not entertain hearing any [d]efense [m]otions"; (3) failing to investigate the claim that Y.F. had been "intimidated/threatened by the State not to testify on [his] behalf"; (4) failing to "explain fully the consequences of any guilty plea with respect to Megan's Law and its application to [him]"; (5) and giving him "'misadvice' which prevented [him] from making an informed decision with respect to acceptance of the . . . [p]lea [o]ffer, rather than proceed with a trial." In a supporting certification, defendant added claims that he gave his attorney the names of two witnesses on his behalf and neither was interviewed; he was "not advised that there were travel and living restrictions for out of the [s]tate" under Megan's Law; and that he did not appeal his conviction because his attorney did not advise him "as to what an appeal was and of how to go about it." Counsel was assigned and filed a supplemental brief.
On August 1, 2008, the same judge who presided over defendant's trial and sentencing heard argument on his PCR petition. The judge concluded that an evidentiary hearing was necessary, which took place over two days between October 2008 and March 2009.
Defendant testified that he asked his attorney to watch a DVD of one of the victim's statements because he believed it would show she had been coerced. Defendant saw "in the discovery" reports by the Division of Youth and Family Services (DYFS), "which cast doubt on the veracity of the victims' allegations"; however, his attorney "didn't do anything about them." Defendant insisted that he wanted to go to trial because he was "confident that the evidence wouldn't have supported [a] guilty verdict." Counsel also failed to obtain statements from certain State witnesses who, defendant claimed, "[w]ould . . . have been useful in [his] defense."
Defendant stated that he pled guilty because of his attorney's lack of preparation and because counsel "kept saying" that he did not want to be standing next to defendant when he received a seventeen-and-a-half-year sentence, adding, "So, I knew he wasn't going to represent me to the fullest so I had to take the plea." Counsel's failure to pursue pre-trial motions was another factor contributing to his decision to plead guilty. He also asserted that counsel failed to explain the restrictions imposed by Megan's Law "on [his] life after [he was] out of jail . . . ."
Defendant further testified that Y.F. told him that DYFS had "intimidated" her. Y.F. allegedly told DYFS staff that she did not believe defendant committed the acts charged and DYFS "said they would take her kids and make her lose her job if she didn't cooperate with them." His attorney never discussed this with Y.F. Defendant added that he asked Y.F. to testify at the hearing but she was "still . . . afraid that [DYFS] is going to take her kids[,]" so she refused to come to court.
On cross-examination, defendant acknowledged that when he was interviewed by members of the Prosecutor's Office, he gave a videotaped confession, admitting to one of the charges. He further acknowledged that on December 21, 2006, his attorney had filed motions challenging the admissibility of defendant's statement and those of the victims and was prepared to proceed on those motions. He agreed that he "changed his mind" about pleading guilty after the judge questioned him. He recalled the judge going through the plea form and discussing Megan's Law consequences with him.
Defendant's trial attorney testified that he was assigned to defendant's case in September 2006 and met with him nine times before the hearing on December 21, 2006. He discussed the discovery with defendant and had his investigator interview witnesses defendant identified. They were "hostile witnesses, not exculpatory . . . . [T]here were no witnesses" to one of the charges and "no exculpatory witnesses [to the other incident] that [defendant] asked [him] to speak to." He did not recall defendant telling him that Y.F. was being intimidated by DYFS.
Counsel acknowledged that he told defendant "it was in his best interest to plead guilty, because [he] believed [defendant] would lose at a trial . . . ." Counsel explained his reason for taking this position:
I thought there were some problems with his statement. There were two girls that were allegedly involved here and I thought it was a very big problem that when he was talking to the police he . . . brought up on his own the second girl, not knowing that the police had already talked to that girl and gotten a statement from her alleging that he had pulled down her pants and pulled down her shirt on a different occasion. So I thought . . . the only way to win the case would have been to argue that the statement was not true, that the police pressured him and I thought there was a huge problem with trying to convince a jury that the police pressured him when he's the one that brought up for the first time the other girl that [the] police had already talked to. I thought it was a problem what either . . . child's motivation was to lie and make up the charges . . . . So those are the reasons that I thought he would . . . not win.
Counsel told defendant that if "he tr[ied] the case, [he was] going to try the case to win . . . ." That is why counsel intended to file certain motions.
Counsel stated that he went over the plea form with defendant, asking him each question and circling his answers on the form. Counsel specifically explained the consequences of the Megan's Law registration requirements, and completed the required supplemental form entitled "Additional Questions For Certain Sexual Offenses," which set forth those requirements and consequences in detail, including the notice that defendant could be subject to conditions limiting "where [he] can live, work, travel or persons [he] can contact[.]"
The judge issued a written decision on May 8, 2009. The judge concluded, "having considered the testimony presented [at the evidentiary hearing] and [the] arguments of counsel," that defendant had failed to "make out a prima facie case for ineffective assistance of counsel." The judge added that even if he "were persuaded" to find such a prima facie case, defendant "had failed to show that he has been prejudiced by the alleged ineffective assistance."
The judge opined that the vast majority of defendant's claims are unfounded and without support. . . . The evidentiary hearing revealed that plea counsel met with . . . defendant on nine separate occasions to discuss this case. Plea counsel also testified that he met and spoke with numerous potential witnesses, and reported that most of them were hostile to . . . defendant and would have contradicted his position. None of the witness interviews revealed any exculpatory information. Furthermore, pre-trial motions were filed by plea counsel on . . . defendant's behalf, but were subsequently withdrawn when . . . defendant elected to accept the State's plea offer. All of plea counsel's actions must also be viewed against the backdrop that the State had [a] very strong case against . . . defendant, which included a confession. Under these circumstances it cannot be said that plea counsel was deficient, let alone so deficient as to overcome the strong presumption that counsel's behavior fell within the wide range of reasonable professional assistance.
The judge concluded that "defendant here entered into a favorable plea agreement, his understanding of which was thoroughly confirmed on the record. He was informed of all penal consequences and his right to appeal on the record, which he indicated that he understood."
On appeal, defendant raises the following contentions for our consideration:
THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Counsel failed to investigate essential witnesses.
B. Counsel failed to provide effective assistance during plea negotiations.
C. Counsel failed to file pre-trial motions.
D. Counsel failed to consult with defendant in a meaningful manner.
E. Counsel's strategy was deficient and amounted to ineffective assistance of counsel.
THE LOWER COURT ORDER MUST BE REVERSED SINCE THE PLEA WAS NOT MADE VOLUNTARILY AND KNOWINGLY.
Defendant's appellate brief simply repeats the arguments presented in his PCR petition. Nowhere does defendant address the judge's decision denying relief, or point out where the judge erred either in his findings of fact or legal conclusions.
Moreover, having reviewed defendant's contentions in light of the record and the controlling legal principles, we are satisfied that the judge properly denied his petition following the plenary hearing. We, therefore, consider his claims to be "without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(2). We affirm substantially for the reasons stated in Judge Ernest M. Caposela's written decision. We add only the following comments.
A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.
The Strickland test applies to challenges to guilty pleas based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985). To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). To meet the second prong of the test, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210. See State v. DiFrisco, 137 N.J. 434, 456-57 (1994) (adopting the test in Hill v. Lockhart with respect to "challenges of guilty pleas based on ineffective assistance of counsel").
Here, the judge found that none of defendant's claims was supported by the evidence adduced at the plenary hearing. We are satisfied those findings are supported by the record. Therefore, we defer to them. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). To a large extent, the judge's findings were based upon credibility determinations, as defendant and plea counsel presented divergent views of the pertinent events. We defer to such determinations where, as here, they are adequately supported by the evidence. State v. Locurto, 157 N.J. 463, 471 (1999).