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State of New Jersey In the Interest of B.C.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 19, 2012

STATE OF NEW JERSEY IN THE INTEREST OF B.C., A JUVENILE.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FJ-13-1374-96.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 30, 2011

Before Judges Graves and Koblitz.

On September 7, 1995, when B.C. was eleven years old, he was charged with juvenile delinquency for acts which, if committed by an adult, would constitute aggravated sexual assault, N.J.S.A. 2C:14-2(1) (count one); two counts of simple assault, N.J.S.A. 2C:12-1(a)(1) (counts two and three); and harassment, N.J.S.A. 2C:33-4(c) (count four). B.C. pled guilty to counts one and two on January 29, 1996. On March 15, 1996, B.C. was adjudicated delinquent and sentenced to a three-year term of probation with conditions. B.C. was also required to register as a sex offender under Megan's Law. N.J.S.A. 2C:7-1 to -19.

On September 11, 2008, B.C. filed a motion to vacate his guilty pleas and for the assignment of counsel. After an attorney was assigned to represent him, B.C. filed an amended petition for post-disposition relief under Rule 5:24-6 on August 31, 2009. B.C. appeals from an order entered on December 11, 2009, denying his petition to have his adjudication of delinquency set aside. B.C. presents the following arguments:

POINT I

THE COURT ERRED IN DENYING APPELLANT'S APPLICATION FOR POST DISPOSITION RELIEF BECAUSE IT FAILED TO RECOGNIZE THE DELAY IN FILING THE APPLICATION WAS CAUSED BY EXCUSABLE NEGLECT.

POINT II

APPELLANT'S ADJUDICATION MUST BE REVERSED BECAUSE HIS TRIAL COUNSEL'S PERFORMANCE WAS SO INEFFECTIVE IT UNDERMINED THE ADVERSARIAL PROCESS AND RESULTED IN AN UNJUST RESULT. POINT III

THE COURT ERRED IN DENYING APPELLANT'S REQUEST TO WITHDRAW HIS PLEA BECAUSE THERE IS NO EVIDENCE IN THE RECORD TO DEMONSTRATE HIS PLEA WAS KNOWINGLY AND VOLUNTARILY MADE.

POINT IV

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO APPOINT A GUARDIAN TO PROTECT APPELLANT'S INTEREST IN THIS MATTER. (NOT RAISED BELOW)

Based on our review of the record and the applicable legal principles, we conclude that these arguments are clearly without merit. R. 2:11-3(e)(2). We add only the following comments.

In his initial certification, B.C. claimed he "never saw an attorney," he "didn't understand any of the proceedings," and, if there had been a trial, he would have been able to prove "that [he] wasn't in the area of the crime charged." In his amended petition, however, B.C. conceded that he was "represented at the time of the plea and disposition by Ms. Wanda W. Finnie, Esq., a staff attorney with the Office of the Public Defender." Nevertheless, B.C. alleged his attorney was ineffective because:

[C]counsel did not advise [him] of the consequences and effects of Megan's Law, failed to investigate the allegations, never interviewed any witnesses, never hired any expert witnesses, failed to file a suppression motion of the signed confession and allowed the entrance of the alleged plea and adjudication for Aggravated Sexual Assault.

Following oral argument on December 4, 2009, the court ruled that B.C.'s post-disposition claims were time-barred because the delay in filing the petition was not attributable to either excusable neglect or exceptional circumstances. State v. Goodwin, 173 N.J. 583, 595 (2002). Nonetheless, the court considered the matter on its merits and determined there was no evidence to support B.C.'s claim that his confession was coerced, and there were no facts to substantiate his other ineffective-assistance-of-counsel claims. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (stating that "bald assertions" are insufficient "to demonstrate counsel's alleged substandard performance"), certif. denied, 162 N.J. 199 (1992).

The court also analyzed the factors enumerated in State v. Slater, 198 N.J. 145 (2009), and determined that B.C. failed to assert a colorable claim of innocence or other compelling reasons for the withdrawal of his pleas. In addition, the court concluded that B.C. would receive an unfair advantage from the withdrawal of his pleas because the State's file and the court reporter's records had been destroyed, and two of the State's witnesses had died.

These findings are fully supported by the record, and the court correctly applied the legal principles governing claims of ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); and State v. Fritz, 105 N.J. 42 (1987). Accordingly, the order denying B.C.'s application to vacate the adjudication of delinquency is affirmed substantially for the reasons stated by Judge James McGann on December 4, 2009.

Affirmed.

20120119

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