July 19, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
OMAR VILLANUEVA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-1307-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 16, 2011
Before Judges Ashrafi, Nugent and Newman.
Defendant Omar Villanueva appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel and other grounds for relief. We reverse and remand for an evidentiary hearing.
Between 1996 and 2000, defendant was a basketball coach at a parochial middle school. He supervised a conditioning program for students on the basketball team between twelve and fourteen years old. As part of the program, defendant weighed the boys in the school nurse's office in the nude. When school administrators learned about this practice, they contacted the county prosecutor's office, and an investigation was conducted of defendant's activities with the basketball team. Detectives obtained statements from some members of the team alleging sexual and other inappropriate conduct by defendant, in particular, on out-of-state trips. Other members of the team denied any misconduct had occurred. The prosecutor's office also searched defendant's home computer and allegedly found evidence of child pornography.
In May 2001, defendant was indicted on six counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; two counts of second-degree causing or permitting a child to engage in a prohibited sexual act, N.J.S.A. 2C:24-4b(3) and N.J.S.A. 2C:24-4b(4); and one count of fourth-degree possession of child pornography, N.J.S.A. 2C:24-4b(5)(b).
Defendant moved to dismiss the counts charging endangering the welfare of a child on the ground that the evidence presented to the grand jury was not sufficient to prove that crime. The court heard argument and denied the motion.
Defendant and his attorney then negotiated a plea agreement with the prosecutor's office for a non-custodial sentence. On April 29, 2002, defendant entered a plea of guilty to one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, by weighing the boys in the nude. In exchange for his guilty plea, the State agreed to dismiss the other charges and to recommend a sentence of five years' probation with sex offender counseling.
At the plea hearing, the court stated among other things that defendant's sentence would subject him to the sex offender registration and notification requirements of Megan's Law, N.J.S.A. 2C:7-2 to -11, and to community supervision for life, N.J.S.A. 2C:43-6.4. To establish a factual basis for entry of the guilty plea in accordance with Rule 3:9-2, defense counsel elicited the following testimony from defendant:
Q: Mr. Villanueva, during the period culminating in August of the year 2000, did you run a conditioning program for basketball students at [a parochial middle school]?
Q: How old were the children participating in the program?
A: Between the ages of twelve and fourteen Q: As part of the program were the children weighed?
Q: And they were weighed in the nurse's office?
Q: During the course of that weighing were the children in fact weighed in the nude?
Q: Was there any reason why the children needed to be weighed in the nude?
Q: And you understand that the issue of whether that constituted sexual conduct was a subject of a hearing that took place before the Honorable Joseph Conte*fn1 ?
Q: At that time Judge Conte found that the allegations were sufficient to sustain the charges. You recall that hearing?
Q: At this time you understand by pleading guilty to this offense we're stipulating the conduct that took place constituted sexual conduct?
Assistant Prosecutor: The State is satisfied.
The court accepted the guilty plea and ordered that defendant be evaluated in accordance with N.J.S.A. 2C:47-1 at the Adult Diagnostic and Treatment Center for sex offenders at Avenel. The psychological evaluation concluded that defendant was not eligible for sentencing in accordance with the Sex Offender Act, N.J.S.A. 2C:47-1 to -10.
The sentencing hearing occurred on December 13, 2002. Defense counsel argued that a probationary sentence was appropriate because defendant had no prior criminal convictions or arrests, he had been devoted to helping children in his teaching and coaching career, and this one "lapse of judgment" would prevent him from pursuing that career. In response, the judge remarked that defense counsel had "denuetered" the sexual crime to which defendant had pleaded guilty. The judge questioned whether defendant was declaring innocence of the charge or still admitted his guilt.
Defense counsel referred again to the pretrial ruling of the court that the conduct alleged was sufficient to support the charge, and he stated: "we're in a position where we have to accept the proposition that nudity itself constitutes sexual conduct." The court immediately added: "If depicted for the purpose of your client's sexual stimulation or gratification, that's right in the statute."
The court and counsel discussed whether defendant wanted to proceed with sentencing or was now professing innocence. See State v. Reali, 26 N.J. 222, 224 (1958) (court must not accept a guilty plea where the defendant claims innocence). The court stated that defendant was facing "tremendous consequences" as a result of his guilty plea, including community supervision for life. The prosecutor then spoke, repeating the court's statement that defendant would "be supervised for life." The prosecutor described some restrictions that might affect defendant in the future:
[C]ommunity supervision for life . . . is, it's really quite restrictive. If the parole officer that will be supervising Mr. Villanueva feels that in addition to the counseling that he may be attending . . . through probation . . . is not enough. For example, if he needs to go to other individual or group therapy, they will enforce that therapy, they will make sure he goes. If he feels that he should stay out of events that involve teens, basketball games, football games at schools, they will make sure that he's not present. They can, unlike Megan's Law . . . request the defendant himself notify his employer. They can request . . . a curfew and that he be home at 10 o'clock and he call in to make sure he's home.
The court asked defense counsel what defendant's intention was as to proceeding. Counsel answered: "Judge, we are prepared to proceed with the sentence today."
In accordance with the plea agreement, the court sentenced defendant to five years' probation with a special condition that he attend counseling. The court also imposed money penalties and specifically stated that the sentence would include community supervision for life. The judgment of conviction also checked off that defendant was sentenced to community supervision for life.
Defendant did not appeal from his conviction and sentence. He states he served the five-year term of probation without incident and was discharged from probation in 2007. After his term of community supervision began, he consulted with his current attorney and filed the PCR petition that is now before us. He claimed he did not file an earlier challenge to his conviction because he only learned at the end of his probationary term that the conditions of community supervision for life were significantly more restrictive than his probationary restrictions.
From a list of restrictions given to him in early 2008, defendant learned that he would permanently*fn2 have to see his parole officer every month; he would be subject to unannounced home visits; he would be restricted as to where he could live and what jobs he could take; he would have to provide regular urine screens for drug testing; and he would be barred from outof-state travel without permission. To emphasize the effect of community supervision on his life and future, defendant provided a detailed account of how his parole officer belatedly denied him permission to attend an out-of-state conference that was necessary for advancement in his employment.
Defendant's new attorney conducted an investigation and gathered statements from potential student witnesses who denied defendant had engaged in misconduct on out-of-state trips. Defendant learned the witnesses had been questioned by detectives at the time of the prosecutor's investigation, but their exculpatory statements had not been provided to his prior defense attorney in discovery before he entered his guilty plea.
Defendant filed his verified PCR petition on November 14, 2008, almost six years after the date of conviction and sentencing. He professed innocence, stating he had not weighed students nude for purposes of his sexual gratification but only because he believed the conduct was acceptable in an athletic, "locker room" setting. Defendant also submitted a certification from his prior attorney stating he had not informed defendant of the consequences of community supervision for life, and that "[a]t the time of the entry of his plea, I did inform Defendant that the mere weighing of children in the nude was considered a crime."
The court did not hold an evidentiary hearing. It issued a written opinion denying relief. Although the opinion made reference to the late filing of the petition beyond the five-year limitation period of Rule 3:22-12, it did not include an express ruling under that rule. The court considered the PCR petition on its merits and concluded that defendant had not presented a prima facie case of ineffective assistance of counsel or other grounds for relief. It found that defendant had been adequately informed about the consequences of community supervision for life and that a factual basis for the guilty plea was established through the combination of the plea and sentencing hearings.
On appeal, defendant makes the following arguments:
THERE IS A REASONABLE PROBABILITY THAT IF DEFENDANT'S FACTUAL ASSERTIONS WERE FOUND TO BE TRUE, ENFORCEMENT OF THE TIME BAR WOULD RESULT IN A FUNDAMENTAL INJUSTICE BECAUSE THE INEFFECTIVE ASSISTANCE OF COUNSEL WENT TO THE HEART OF HIS PLEA BECAUSE THE MISINFORMATION AND WRONG ADVICE AS TO WHAT WAS A CRIME CAUSED AN INNOCENT MAN TO PLEAD GUILTY.
DEFENDANT'S PLEA WAS NOT ENTERED INTO KNOWINGLY OR VOLUNTARILY BECAUSE DEFENDANT WAS IGNORANT OF THE PENAL CONSEQUENCES[;]
THUS HIS CONVICTION AND SENTENCE VIOLATE DUE PROCESS UNDER THE UNITED STATES CONSTITUTION AND THE CONSTITUTION OF NEW JERSEY.
DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL WARRANTING A FULL EVIDENTIARY HEARING AND REVIEW ON THE MERITS.
THE COURT SHOULD HAVE GRANTED PETITIONER OMAR VILLANUEVA'S MOTION FOR DISCOVERY.
Our standard of review from the decision of the PCR court is plenary on questions of law. See State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). We defer to the factual findings of that court, however, if they are supported by adequate, substantial, and credible evidence. Ibid.
As a preliminary matter, we will not address the late filing of defendant's PCR petition because the State has not argued that point on appeal. Although defendant's petition was not filed within five years of the date of the judgment of conviction, as required by Rule 3:22-12(a)(1), the rule permits limited expansion of the time period. For purposes of the appeal, the State has waived a contention that defendant's PCR petition should be dismissed as untimely filed.*fn3
In considering the merits of the PCR petition, we begin with a presumption that defendant received the assistance of counsel that is mandated by the Sixth Amendment of the United States Constitution and article I, paragraph 10, of the New Jersey Constitution. See Strickland v. Washington, 466 U.S. 668, 689, 694, 104 S. Ct. 2052, 2065, 2068, 80 L. Ed. 2d 674, 694, 698 (1984); State v. Loftin, 191 N.J. 172, 198 (2007). Defendant bears the burden of proving that his attorney's performance was ineffective under constitutional standards. Loftin, supra, 191 N.J. at 198.
In Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, the United States Supreme Court established a two-part test for evaluating claims of ineffective assistance of counsel.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.
To satisfy the second part of this test, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The Strickland standard was adopted by the New Jersey Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).
Where ineffective assistance is alleged following a guilty plea, the defendant satisfies the second part of the Strickland test by showing "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." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985).
The primary issue before us is whether the PCR court erred in deciding defendant's petition without an evidentiary hearing. We conclude it did. In State v. Preciose, 129 N.J. 451, 462-63 (1992), the Court stated:
[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief. As in a summary judgment motion, courts should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim.
"To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of succeeding under the test set forth in Strickland v. Washington[.]" State v. Goodwin, 173 N.J. 583, 596 (2002). However, where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
Here, defendant made specific allegations of ineffective assistance of counsel and supported those allegations with his own verification of the PCR petition, with the transcripts of the proceedings at the time of his plea and sentencing, and with a certification from his defense attorney confirming defendant's claims of incorrect or inadequate legal advice. The attorney acknowledged that he had advised defendant he could be convicted of endangering the welfare of a child simply for weighing boys in the nude. He gave that advice because the trial court had denied defendant's pretrial motion to dismiss the indictment. The attorney also certified that he had not advised defendant about the consequences of community supervision for life. As we will further explain, these allegations were sufficient to establish a prima facie claim of ineffective assistance of counsel.
Defendant relies upon State ex rel. T.M., 166 N.J. 319 (2001), to argue that "[a] factual basis for a plea 'must obviously include defendant's admission of guilt of the crime or the acknowledgment of facts constituting the essential elements of the crime.'" Id. at 333 (quoting State v. Sainz, 107 N.J. 283, 293 (1987)). He contends his agreement to a stipulation at the time of the plea hearing was not an admission that he weighed the boys nude for sexual stimulation or gratification.
As a general matter, a court may accept a stipulation in lieu of a personal admission by a defendant to establish an element of a crime to which a plea of guilty is offered. See id. at 335. Although admission of guilt must come from "the lips of the defendant," State v. Smullen, 118 N.J. 408, 415 (1990) (quoting State v. Barboza, 115 N.J. 415, 422 (1989)), the Supreme Court has not required that a defendant admit every specific fact necessary for conviction. In Sainz, supra, 107 N.J. at 293, the Court stated: "The factual basis for a guilty plea must obviously include defendant's admission of guilt of the crime or the acknowledgement of facts constituting the essential elements of the crime. However, the defendant's admission or acknowledgment may be understood in light of all surrounding circumstances." See also State v. Mitchell, 126 N.J. 565, 581 (1992) ("In determining whether an adequate factual basis exists, the court may consider the defendant's statements as well as information gleaned from the surrounding circumstances.").
Neither Rule 3:9-2 nor constitutional rights require that a defendant personally provide all the facts that establish a basis for accepting a guilty plea. A defendant may honestly not recall certain pertinent facts, and others may never have been within his knowledge. But a defendant may have no dispute that facts necessary for conviction are true and can be proven at trial. A stipulation is simply a statement of that concession. It may support a factual basis for a guilty plea as long as the stipulation is entered into knowingly and voluntarily.
In T.M., supra, 166 N.J. at 335-37, the Court reversed a guilty plea entered on stipulated facts because the juvenile, mentally-limited defendant did not have the capacity to agree knowingly and voluntarily to a stipulation of the relevant facts. Furthermore, the stipulation was not sufficient to establish the mental state necessary for a finding of guilt.
Id. at 335. Here, we must address whether the stipulation that defendant accepted at the time of his guilty plea was sufficient to establish a necessary element of the offense.
Subsection a of the endangering statute to which defendant pleaded guilty prohibits "sexual conduct which would impair or debauch the morals of a child." N.J.S.A. 2C:24-4a (emphasis added). It does not expressly define "sexual conduct." See State v. Hackett, 323 N.J. Super. 460, 471 (App. Div. 1999), aff'd as modified, 166 N.J. 66 (2001). Subsection b(1)(i) of the statute defines "prohibited sexual act" as including "[n]udity, if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction." By the terms of the statute, the quoted reference to "nudity" is applicable to subsection b of the statute, which prohibits depiction of sexual acts by children in photographs, films, the internet, and similar reproduction, in other words, child pornography. See State v. Hackett, 166 N.J. 66, 84 (2001). In this case, defendant's weighing of the boys did not involve any photographing or other similar depiction of nudity. Thus the reference to nudity in the portion of the statute prohibiting child pornography is not expressly applicable to subsection a of the statute and hence to defendant's guilty plea.
If nudity is the "sexual conduct" charged under subsection a, it must be of such nature that it would impair or debauch the morals of a child. Id. at 76. Subsection a focuses on the effect of defendant's conduct on children and not only on the defendant's specific purpose in engaging in that conduct. Id. at 77. In Hackett, which was a prosecution based on defendant's own nudity rather than the children's, the Supreme Court stated: "mere nudity repeatedly presented . . . can constitute endangering the welfare of children if the other elements of the endangering crime are met." Id. at 80. The Court also referenced State v. White, 105 N.J. Super. 234 (App. Div.), certif. denied, 54 N.J. 242 (1969), in which a defendant's showing pictures of nude men and women to children was the basis for sustaining his conviction for endangering the welfare of children.
In State v. Bryant, 419 N.J. Super. 15, 24, 28 (App. Div. 2011), we held that conviction for endangering the welfare of a child under subsection a of the statute requires proof that defendant knowingly engaged in sexual conduct, but not that he knew his conduct would impair or debauch the morals of a child. We recognized that some conduct is obviously sexual in nature but other conduct may be ambiguous as to its sexual purpose.
Id. at 24. The weighing of the boys in the nude in this case is such ambiguous conduct. Therefore, proof was required that defendant knew his conduct was sexual in nature when he engaged in it.
In advising defendant of the nature of the offense to which he was pleading guilty, prior defense counsel relied on the trial court's denial of his motion to dismiss the endangering counts of the indictment. Because a transcript of the pretrial motion hearing has not been produced on this record and an evidentiary hearing was not conducted on the PCR petition, we cannot evaluate the basis for counsel's advice that the judge had already determined defendant's actions were sexual conduct.
It seems unlikely that the judge in a pretrial motion made a factual finding that the State's evidence proved defendant had violated the criminal endangering statute by knowingly engaging in sexual conduct. More predictably, the judge denied defendant's motion to dismiss the indictment because of the restrictive standard of review applicable to the motion. See State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984). In all likelihood, the court appropriately left the issue of defendant's knowledge and intent, or whether nude weighing would impair or debauch the morals of the children, for a trial jury to decide. See Hackett, supra, 166 N.J. at 81-84.
It may be that counsel gave proper legal advice to defendant, in accordance with the holding of Hackett, that the jury would be given the opportunity to and might find defendant's conduct of weighing the boys in the nude was knowing sexual conduct that impaired or debauched the morals of children. But the stipulation as stated, that "the conduct that took place constituted sexual conduct," did not include an explicit admission by defendant that he knew he was engaging in sexual conduct at the time of its occurrence.
The sentencing judge attempted to fill the gap in defendant's factual allocution. He stated the sexual conduct charged required that defendant engaged in the nude weighing of the boys for his own sexual gratification. The parties have not disputed that construction of the statute. We do not decide for purposes of this appeal whether sexual stimulation or gratification of defendant was a necessary element of the third-degree charge to which he pleaded guilty. We leave for another day determination of whether nude weighing of children could have been viewed as sexual conduct in some other manner than personal stimulation or gratification of defendant.
We note, however, that the sentencing judge discussed in detail an admission from defendant that was necessary for acceptance of his guilty plea, and defendant chose to maintain his plea rather than pursuing the issue at that time when the court invited him to do so. Rule 3:22-4 might otherwise bar a challenge to a factual basis for a guilty plea that was or could have been raised in a prior proceeding. However, defendant's claim on PCR was that he acted upon incorrect or inadequate legal advice from his attorney.
Defendant's submissions showed that his attorney advised him nudity alone could constitute a violation of the statute. Without a more precise explanation of the necessary elements under the statute, that advice would be legally inaccurate. Defendant also adequately asserted that the allegedly faulty advice directly affected his acceptance of the stipulation admitting an element of the offense and his decision to plead guilty. Defendant's PCR petition and supporting evidence made a prima facie showing of deficient performance by counsel and prejudice to defendant in agreeing to plead guilty. The prima facie showing entitled defendant to an evidentiary hearing to prove his claims.
Also, the absence of advice from defense counsel on the meaning and effect of community supervision for life could satisfy the Strickland standard. Defendant contends he would have elected to stand trial if he had been advised more specifically about the highly-restrictive consequences of community supervision for life.
In State v. Jamgochian, 363 N.J. Super. 220, 222-24 (App. Div. 2003), we held a defendant had shown a prima facie case of ineffective assistance of counsel because his attorney had failed to advise him that community supervision for life would include travel restrictions. In other contexts, too, courts have held a defendant must be advised of important consequences of his guilty plea that would affect a knowing and voluntary decision to plead guilty. See Padilla v. Kentucky, ___ U.S. ___, ___, 130 S. Ct. 1473, 1482-83, 176 L. Ed. 2d 284, 294-95 (2010) (risk of deportation); State v. Bellamy, 178 N.J. 127, 138 (2003) (statutory provisions for civil commitment as a violent sexual predator); State v. Howard, 110 N.J. 113, 124-25 (1988) (parole restrictions applicable to sentence to sex offenders prison).
At the plea and sentencing hearings, the court told defendant community supervision for life would be included in his sentence, and the prosecutor recited some of the specific consequences. But, according to defendant's PCR petition, the restrictions actually imposed by the parole officer were significantly more burdensome than anything that defendant was previously told.
Defendant attached to his PCR petition a written list of twenty-two restrictions placed upon him. The list was given to him by his current attorney and his parole officer when his community supervision began five years after he was sentenced. Our record does not indicate whether such a list was available for prior defense counsel's use at the time of the guilty plea. If it was, counsel's performance may have been deficient in failing to inform himself and defendant of the nature of restrictions imposed during community supervision.
We make no finding on this record that counsel's representation was in fact deficient, or that defendant was prejudiced by the absence of more detailed advice. We hold only that defendant presented a prima facie case of ineffective assistance with respect to community supervision for life, and he was entitled to an evidentiary hearing and an opportunity to prove his claims.
Finally, defendant also appeals from the trial court's denial of his motion for discovery. He sought to prove his due process rights were violated by the prosecution's alleged failure to disclose exculpatory evidence in accordance with Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). He seeks additional information from the investigations conducted by the prosecutor's office and the Division of Youth and Family Services (DYFS) to find witnesses and evidence supporting his factual defenses.
The Brady and discovery issues are not a separate claim entitling defendant to PCR review. They are part of his overall claim grounded upon ineffective assistance of counsel and his assertion of innocence. On remand, defendant may make further application to the trial court for discovery as relevant to his claim of innocence of the crimes charged in the indictment. The trial court shall have discretion to determine the scope of appropriate discovery consistent with the issues on remand.
Because we lack a full record of the nature of defense counsel's advice to defendant before he pleaded guilty, our decision does not determine whether defense counsel's performance was in fact deficient, or whether defendant would nevertheless have accepted the non-custodial plea agreement and pleaded guilty under the circumstances presented to him. We only hold that he is entitled to an evidentiary hearing to present proofs relevant to his claims. The trial court must evaluate those claims and the evidence developed in light of the legal framework we have discussed pertaining to the endangering charge to which he pleaded guilty.
Reversed and remanded for an evidentiary hearing. We do not retain jurisdiction.