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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...