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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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