July 25, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL HASHER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 96-09-1161.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 7, 2011 -
Before Judges A.A. Rodriguez and LeWinn.
Defendant appeals from the April 17, 2009 order denying his petition for post-conviction relief (PCR). We affirm.
In 1996, defendant faced two indictments charging him, collectively, with ten offenses including, but not limited to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3), second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and third-degree criminal restraint, N.J.S.A. 2C:13-2; these offenses were against two victims, T.M. and A.P. On April 7, 1997, defendant pled guilty to one count of second-degree sexual assault upon A.P., N.J.S.A. 2C:14-2(c)(1), in exchange for a recommendation that all other charges be dismissed and his maximum sentence exposure would be ten years with a four-year period of parole ineligibility.
In his factual basis for the plea, defendant admitted using physical force to commit an act of sexual penetration upon A.P. At sentencing on September 22, 1997, defendant moved to withdraw his guilty plea, claiming he did not have sufficient time to consult with his attorney and that he had not committed an act of sexual penetration and, therefore, could not give an adequate factual basis to support a second-degree sexual assault conviction. The judge denied the motion, finding that "the plea was voluntarily entered into with full knowledge of its consequences, [and] with an adequate factual basis . . . ." The judge thereupon sentenced defendant pursuant to the plea agreement.
Defendant appealed, raising three issues: (1) his plea should be vacated because he did not provide an adequate factual basis; (2) the judge should have granted him an evidentiary hearing on his motion; and (3) his sentence was excessive. We affirmed on the basis of Rule 2:11-3(e)(2), finding no merit to any of his contentions. State v. Hasher, No. A-7288-97 (App. Div. March 1, 2000) (slip op. at 3). The Supreme Court denied certification, 165 N.J. 491 (2000).
Defendant filed his PCR petition on August 20, 2008; he has not included a copy of that petition in his appendix.*fn1 However, at a hearing on January 5, 2009, the PCR judge determined that defendant was entitled to an evidentiary hearing on "the issue of penetration and the allegations that [he was] not given evidence in the form of reports or documents that would support [his] position of there being no penetration." We assume, therefore, that these were the claims raised in defendant's petition.
An evidentiary hearing was held on April 17, 2009. Defendant's mother testified that she and her husband were "always present" during defendant's meetings with his trial attorney. Counsel never had a file present or showed them any discovery during those meetings. The first time she learned of any hospital records on the victim was when PCR counsel told her about them.
Defendant's father testified that counsel said the State offered a "four year minimum" sentence if defendant would "plead guilty to penetration . . . ." Defendant told his father "there was not any penetration." Defendant "constantly" said he did not "want to plead to something that involve[d] penetration[.]" PCR counsel showed defendant's father medical records of the victim, which he said he had never seen before.
Defendant testified that counsel never showed him the discovery in his case. He claimed that T.M. had been a prostitute, but counsel told him she was a school teacher; even though the charges against T.M. were dismissed pursuant to his plea agreement, those charges were later brought up in a hearing in December 2007, at which defendant was civilly committed pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA).
Defendant testified he never saw any of the discovery in the case involving A.P. After reviewing medical documents provided by PCR counsel, defendant learned "there was no finding of semen or penetration[,]" which "just confirm[ed] what [he had] been saying the whole time." Trial counsel persuaded defendant to take the plea agreement because: (1) at trial the State would prove that T.M. was a school teacher; (2) defendant would "do [forty] years"; and (3) if he pled guilty to "penetration of A.P.[,]" he would be "out in four years."
Defendant explained that at his plea hearing he gave a factual basis as to penetration because he was "told that it would drop a charge" and he was concerned that the State could prove T.M. was a school teacher not a prostitute as defendant claimed she was. He stated that, had he seen the discovery prior to his plea hearing, he would have "definitely taken it to trial."
Defendant acknowledged that at the time of his plea the judge advised him of the possibility of civil commitment. After his plea, defendant underwent an evaluation at the Adult Diagnostic and Treatment Center (ADTC) pursuant to N.J.S.A. 2C:47-1. The ADTC report concluded that defendant was not a compulsive or repetitive offender; therefore, he believed he could not be committed as a sex offender.
On cross-examination, the prosecutor asked defendant if he was saying his prior counsel had "told [him] to lie about the penetration in order to get a good deal". Defendant answered, "Correct." He asserted that he "did lie" because his "attorney was . . . dictating to [him] what to do . . . ."
Defendant's prior counsel testified that he substituted in as defendant's attorney late in the case because defendant and his parents were dissatisfied with the first attorney they had retained. At a hearing before the trial judge in April 1997, this substitution was discussed and defendant stated that he "accepted that fact that [counsel] was coming in at th[at] phase . . . ." Counsel met with defendant and his parents at least seven or eight times before the plea hearing, and he "spent a lot of time on [defendant's] file."
At counsel's meetings with defendant and his parents, he would "discuss [his] review of the file" and "go over the file" with them. He went over the police reports and medical records with all three of them.
Specifically with regard to A.P.'s medical records, counsel stated that those documents did not "support" the conclusion that "there was no penetration." Rather,
[i]t was . . . the position of . . . the hospital . . . that there was no . . . injury due to penetration, no tearing due to penetration. There was [sic] . . . statements in [t]here regarding injuries . . . caused by her being struck in the face.
Counsel discussed with defendant A.P.'s allegation that he had "placed his penis in either her rectal or genital area . . ., he penetrated her twice." The medical records contained a diagnosis of "sexual assault, facial abrasions, and contusions."
Counsel specifically recalled that A.P. was prescribed "Ovral," a "post-sex contraceptive," and her "response was that . . . she would have to decide with her priest if she would take the medication." Counsel advised defendant, and his father who was accompanying him at on that occasion, that if "these types of comments or . . . issues would come out at the time of trial . . ., they could be very devastating." Counsel emphasized that A.P.'s hospital record "was one of the more important documents . . . in [his] discussion with [defendant and his parents] with regard to taking a plea or not taking a plea."
On cross-examination, counsel acknowledged that A.P.'s hospital record included a form entitled "Victim's Medical History and Assault Information" which contained a question as to whether "there [was] penetration of the vagina, the anus, and the mouth[.]" The answer to the first two was "not sure" but there may have been ejaculation.
Counsel was concerned that defendant would be convicted of first-degree aggravated sexual assault if he went to trial, thereby facing a maximum sentence of twenty years. He denied advising defendant that "he would still get the same [sentence] if he went to trial or not."
Counsel noted that the SVPA was enacted in 1999, two years after defendant's plea hearing in 1997. He did recall conversations with defendant about possible confinement at the ADTC at the time of the plea. They discussed "at length" the fact that if defendant were found to be a compulsive and repetitive offender, he could serve a longer sentence at the ADTC.
At the conclusion of the testimony, the judge rendered a decision from the bench. At the outset, the judge found that defendant was not entitled to the benefit of State v. Bellamy, 178 N.J. 127 (2003); there the Court held that defendants pleading guilty to certain sexual offenses were entitled to be advised of the possible consequence of civil commitment under the SVPA resulting from the plea. Id. at 139-140. The Court accorded its holding "limited retroactivity," meaning it was available to defendants whose direct appeals were pending at the time of the decision. Id. at 142. Because defendant's direct appeal was decided prior to the effective date of the SVPA, he did not come within Bellamy's limited retroactivity application.
The judge then addressed credibility issues. He found the testimony of defendant's parents "not credible" because "it [did not make common sense." He found the parents' demeanor to be "negative[,]" particularly "the aggressive way in which [defendant's mother] responded to the prosecutor's questions . . . ." By contrast, the judge found prior counsel "very credible and believable . . . based upon his appearance and demeanor." Based upon counsel's "credibility alone," the judge "disbelieve[d]" defendant's parents. The judge was satisfied that [prior counsel] went over every piece of discovery, that he had all of the discovery, and that he reviewed it all with [defendant,] . . . [T]here was a knowing and voluntary plea. . . . [Counsel] had no obligation to foretell the future that the [SVPA] would be in existence.
. . . Even if [defendant] . . . pled guilty to the sexual assault against A.P. and he went to trial and . . . litigated the T.M. case and was . . . acquitted, there's no evidence here that the acquittal would have served in any way to [a]ffect what his consequences are, which is what he's complaining about here. He's not complaining about his ten years. He said, I'm ready to take responsibility for that.
I take the responsibility. His claim is that he is being committed under the [SVPA]. So that the consequences to which he pleads guilty, he could never meet under the [Fritz-Strickland*fn2 ] . . . standard because he accepts the responsibility for the action . . . to which he pled guilty . . . .
On appeal, defendant raises the following contentions for our consideration:
THE TRIAL JUDGE MISAPPLIED THE STANDARD FOR THE EVALUATION OF INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS IN DENYING DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF.
FUNDAMENTAL FAIRNESS DICTATES THAT DEFENDANT SHOULD BE ABLE TO RETRACT HIS GUILTY PLEA.
In a supplemental pro se brief, defendant raises the following additional points:
THE PROSECUTION'S CONSTITUTIONAL DUTIES TO DISCLOSE EXCULPATORY EVIDENCE FOR THE INDICTMENT OF THE ACCUSED WAS [SIC] NOT HELD TRUTHFUL OR ACCOUNTABLE.
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS PRIOR ATTORNEY . . . DID NOT ADEQUATELY INVESTIGATE THE EVIDENCE USED BY THE PROSECUTION, IN VIOLATION OF THE SIX[TH] AND FOURTEENTH AMENDMENT[S].
Having considered these contentions in light of the record and the controlling legal principles, we are satisfied they "are without sufficient merit to warrant discussion in a written opinion[,]" R. 2:11-3(e)(2), beyond 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.
We are satisfied that the PCR judge did not "misapply" these standards, as defendant asserts. Rather, the judge's denial of relief was based upon his credibility assessments; he found defendant's allegations of lack of consultation and review of discovery to be incredible, and prior counsel's testimony on those points to be very credible. We defer to those credibility determinations where, as here, we are satisfied they are based upon substantial evidence of record. State v. Locurto, 157 N.J. 463, 470-71 (1999). Here, defendant has not been barred from asserting his claims. To the contrary, he was afforded the benefit of a full evidentiary hearing, at which he was represented by PCR counsel who presented testimony on his behalf and vigorously cross-examined prior counsel. Defendant did not present sufficient evidence to raise a prima facie case of ineffective assistance of counsel.
We note that at defendant's plea hearing, the judge questioned him about possible consequences of civil commitment. As the SVPA was not in effect at that time, it is clear from the record that the judge was addressing consequences emanating from ADTC evaluation which defendant was required to undergo as a result of his plea. The fact that that evaluation concluded he was not a compulsive and repetitive offender precluded defendant's confinement at the ADTC. It did not, and could not, however, anticipate possible future consequences under the SVPA.
In his second point, defendant concedes that "[t]he Bellamy rule did not apply to [his] case for two reasons: his direct appeal was decided in 2000; and, of course, the [SVPA] did not become effective until after the plea." The fact that defendant may be "no less aggrieved[,]" however, is not a basis for relief, in the absence of any showing of ineffective assistance of counsel.
We consider the remainder of defendant's arguments, including those in
his supplemental brief, of insufficient merit to warrant discussion.
R. 2:11-3(e)(2). We affirm substantially for the
reasons stated in Judge Joseph P. Donohue's decision rendered from the
bench on April 17, 2009.