April 5, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MIGUEL ROMAN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-05-0736.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 18, 2012
Before Judges Carchman, Baxter and Nugent.
Defendant Miguel Roman appeals from the August 23, 2010 order that denied his petition for post-conviction relief (PCR) without an evidentiary hearing. Defendant alleges that trial counsel provided ineffective representation by advising defendant to plead guilty even though defendant denied having the mens rea required to commit fourth-degree lewdness, and despite the absence of an adequate factual basis to support the plea; and by failing to correct and clarify the trial court's misstatement that defendant was subject to an extended term sentence, a misstatement that defendant claims caused him to plead guilty to the charge. We agree with the trial court's*fn1 determination that defendant knowingly and voluntarily pled guilty to the fourth-degree lewdness charge, and that there was an adequate factual basis to support his plea. Accordingly, we affirm.
The facts are not complicated. On December 13, 2003, defendant was recorded on a surveillance videotape standing behind two clothing racks in a Kohl's department store, rubbing his exposed penis. A child of unknown age had been in the vicinity but had left by the time defendant began masturbating.
A Hudson County grand jury charged defendant with second-degree sexual assault, N.J.S.A. 2C:14-2(b) (first count); fourth-degree lewdness, N.J.S.A. 2C:14-4(b) (second count); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (third count). Thereafter, on defendant's motion, the trial court dismissed the first and third counts, but refused to dismiss the second count, basing its denial on the content of the videotape and a security officer's grand jury testimony that defendant's offense took place in the children's department of the store.
Defendant pled guilty to the second count in exchange for the State recommending that he serve twelve months in New Jersey State Prison concurrent with any sentence imposed for a third-degree offense that was pending against defendant in Monmouth County. The trial court subsequently sentenced defendant to a twelve-month prison term concurrent to the four-year prison term imposed for defendant's intervening conviction on the Monmouth County offense.
Defendant timely appealed his lewdness conviction, but subsequently withdrew the appeal. On December 1, 2009, defendant filed his PCR petition, which the trial court later denied in a written opinion. The court issued a confirming order on August 23, 2010.
Defendant raises the following points in this appeal:
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
A. THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE TRIAL COUNSEL WAS
INEFFECTIVE IN ADVISING PETITIONER-APPELLANT TO PLEAD GUILTY TO LEWDNESS WHERE PETITIONER-APPELLANT DENIED THE MENS REA REQUIRED TO PROVE THE CRIME OF FOURTH DEGREE LEWDNESS PURSUANT TO N.J.S.A. 2C:14-4B(1).
B. THE POST-CONVICTION COURT ERRED IN DENYING RELIEF WHERE THE FACTUAL BASIS ELICITED BEFORE THE TRIAL [COURT] BY COUNSEL INEFFECTIVELY ELICITED AN INADEQUATE FACTUAL BASIS IN SUPPORT OF THE PLEA.
C. PETITIONER-APPELLANT'S PLEA MUST BE VACATED SINCE HE DID NOT KNOWINGLY AND VOLUNTARILY ENTER INTO THE PLEA AGREEMENT BECAUSE HE WAS INCORRECTLY ADVISED AS TO HIS PRISON EXPOSURE IF HE WENT TO TRIAL.
THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED TO THE LAW DIVISION SINCE THE POST-CONVICTION COURT ERRED IN DENYING DEFENDANT-APPELLANT A MEANINGFUL HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF ALLEGING INEFFECTIVE-ASSISTANCE-OF-COUNSEL.
The Sixth Amendment to the United States Constitution guarantees to a person accused of crimes the right to effective assistance of legal counsel in his or her defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the defense. Ibid. See also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the two-part Strickland test in New Jersey). The defective performance is prejudicial if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must establish "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" DiFrisco, supra, 137 N.J. at 457 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).
Defendant first contends that trial counsel was ineffective for advising him to plead guilty to fourth-degree lewdness, the elements of which he maintains were not supported by either his state of mind or his conduct. A person commits the crime of fourth-degree lewdness if:
He exposes his intimate parts for the purpose of arousing or gratifying the sexual desire of the actor or of any other person under circumstances where the actor knows or reasonably expects he is likely to be observed by a child who is less than 13 years of age where the actor is at least four years older than the child. [N.J.S.A. 2C:14-4(b)(1).]
As explained by the Supreme Court,
Although the exposure required for lewdness . . . must be intentional and for the purpose of arousal or gratification, . . .
[t]he non-contact lewdness offense requires the actor to expose or display himself or herself "know[ing] or reasonably expect[ing]" that an underage child will observe the conduct. Under the Code [of Criminal Justice], this mens rea equates with the actor knowing or intending that a child view him or her. See N.J.S.A. 2C:2-2b(1) (stating person acts purposely if he is aware of the existence of the attendant circumstance or he "believes or hopes" that it exists); N.J.S.A. 2C:2-2b(2) (stating person acts knowingly if he is aware of the existence of an attendant circumstance or is aware of the existence of a high probability of its existence). [State v. Zeidell, 154 N.J. 417, 431 (1998).]
"In order to constitute fourth-degree lewdness then, the nudity of the actor must be occasioned by the sexual desire of the actor to be observed by a minor who is less than thirteen." State v. Hackett, 166 N.J. 66, 76 (2001). The mens rea element of fourth-degree lewdness is satisfied if a defendant knows or reasonably expects he is likely to be observed by a child victim; the victim's actual observation is not required. See State v. Breitweiser, 373 N.J. Super. 271, 286 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005).
Defendant provided the following factual basis for his plea:
Q. [By Defense Counsel] Mr. Roman, were you in the Town of Secaucus on December 13[,] 2003?
A. Yes, I was.
Q. And . . . on that date, did you expose your intimate parts for the purpose of arousing or gratifying your sexual desire?
Q. Okay. And prior to doing that, did you notice that there was a child in the vicinity of where you were?
Q. And following that, some time after that, . . . were you then masturbating?
A. Yes, I was.
Q. And there was a likelihood that a person under the age of 13 could observe you, right?
[Defense Counsel]: Sufficient? THE COURT: Okay. [By the Prosecutor]: State's satisfied.
THE COURT: Okay. And for the record, as I said earlier, I did see the videotape in this matter that while [sic] my recollection was it was just Mr. Roman while he was masturbating on the tape and there was no child on the tape at that time, it was in a store, a large department store that frankly, almost anybody could have seen, including a child would have -- could have or would have likely observed this. Okay.
All right. We've gone over this, Mr. Roman, and no one has promised you anything different other than what we've gone over. Is that correct, Mr. Roman?
THE DEFENDANT: Yes, Your Honor.
In defendant's PCR certification, he averred that he was with his girlfriend in the store, became sexually aroused by her, and "look[ed] around in order to make sure that only my girlfriend was around before I attempted self-gratification." Although defendant's certification states that his girlfriend witnessed his act, and that he and his girlfriend took precautions to assure no one was in the vicinity, defendant has not submitted a certification from his girlfriend. Notably, with the exception of defendant's statement in his PCR certification, there is no evidence that his girlfriend was present when he started to masturbate.
In contrast, during his guilty plea, defendant admitted that he intentionally engaged in a lewd act, acknowledged that he had earlier seen a child in the vicinity, and admitted that there was the likelihood that a person under the age of thirteen could observe him. These admissions, considered along with the location of defendant's act, satisfied the mens rea element of fourth-degree lewdness, namely, that the exposure occur "under circumstances where the actor knows or reasonably expects he is likely to be observed by a child who is less than 13 years of age." N.J.S.A. 2C:14-4(b)(1). See also Breitweiser, supra, 373 N.J. Super. at 286. Defendant's attempt to nullify his sworn plea hearing testimony by submitting a self-serving PCR certification is inadequate to establish that his counsel gave him ineffective advice. See State v. Cummings, 321 N.J. Super. 154, 170-71 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Defendant's next argument -- that the factual basis for his plea did not establish the elements of the offense -- is virtually indistinguishable from his first argument. Defendant asserts that the "factual basis is insufficient since it contains no information regarding the mens rea of [defendant]." We have addressed that issue.
Although defendant has not raised this issue in a separate point heading as required by Rule 2:6-2(a)(1), he argues that the attorney who represented him on direct appeal was ineffective for not raising the issue of his trial counsel's ineffective assistance. In light of our conclusion that defendant did not establish that his trial counsel was ineffective, the argument concerning appellate counsel is moot.
Defendant also argues that his plea was involuntary because he was mistakenly informed by the trial court that his plea would subject him to an extended term sentence. On the day the court partially denied defendant's motion to dismiss the indictment, during a discussion about the plea cut-off date, the court incorrectly informed defendant that because of his prior convictions in New York the court could sentence him to an extended term between three and five years. A defendant cannot be sentenced to an extended term based on his conviction of a fourth-degree offense. See N.J.S.A. 2C:44-3.
Defendant has never asserted that he would not have pled guilty had he known that his sentencing exposure was limited to the ordinary term sentencing range. In his initial PCR petition, defendant alleged only that he "never reasonably expected to be viewed in his lewdness." Defendant did not assert in the brief he filed in support of his PCR petition, in an amended verified PCR petition, or in the affidavit he filed in support of his PCR petition, that but for the court's misstatement about sentencing he would not have pled guilty. In other words, he was not harmed by the court's incorrect statement of his sentencing exposure.
More significantly, defendant did not raise the issue at the hearing on his PCR petition and did not assert in his PCR affidavit that he relied on the trial court's incorrect statement when he decided to plead guilty. We will not consider for the first time on appeal issues not raised before the trial court. See State v. Robinson, 200 N.J. 1, 20 (2009).