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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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