April 30, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID HOHSFIELD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 97-01-0064.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 18, 2012 -
Before Judges Axelrad and Sapp-Peterson.
Defendant David Hohsfield appeals from the March 5, 2010 order of the Law Division denying his second petition for post-conviction relief (PCR), which alleged ineffective assistance of trial counsel and requested an evidentiary hearing. We affirm.
Defendant was indicted by a Bergen County Grand Jury on second-degree attempted kidnapping (count one), third-degree luring a child into a motor vehicle (count two), second-degree sexual assault (count three), and third-degree endangering the welfare of a child (count four).
On September 23, 1997, defendant pled guilty pursuant to a negotiated plea to second-degree sexual assault, N.J.S.A. 2C:14-2b, (count three), in exchange for an agreement by the State to dismiss the balance of the indictment and recommend a maximum period of incarceration of seven years. During the plea colloquy, the court addressed and defendant acknowledged the Megan's Law and community supervision for life (CSL) components of his sentence. Defendant further acknowledged, and the court accepted defendant's plea as voluntary, knowing and intelligently entered, after which defendant provided a factual allocution to the sexual assault charge.
On March 20, 1998, defendant was sentenced in accordance with the negotiated plea to a seven-year custodial term. He was also ordered to register as a sex offender under Megan's Law and to CSL.
Defendant appealed, challenging only his sentence, which we affirmed on March 31, 1999 on an ESOA calendar. R. 2:9-11. In May 2002, defendant filed a PCR petition, alleging ineffective assistance of trial counsel and an inadequate factual basis to support the conviction. He sought to vacate or amend the sentence to remove the CSL requirement. Defendant elected to withdraw his PCR petition, and by order of February 8, 2005, the court dismissed defendant's PCR petition without prejudice.
On April 23, 2009, defendant filed a second PCR petition and brief, supplemented with a brief by counsel, alleging ineffective assistance of trial counsel, in part, for not filing any motions with the court, never communicating with him or responding to his inquiries, and failing to fully inform him about the conditions of CSL. He further urged that his plea should be vacated because it was not knowing and voluntary, and his claims should not be procedurally barred as they implicated constitutional issues.
Following oral argument on March 5, 2010, Judge Eugene H. Austin denied defendant's petition, memorialized in an order of the same date. The judge found the petition was time-barred, having been filed over eleven years after his conviction. The judge noted that defendant's first PCR petition had been timely filed but had been voluntarily withdrawn, and although defendant could refile, he had to do it timely. Judge Austin also found defendant's claimed lack of understanding of the consequences of his plea were without merit and did not establish a prima facie case of ineffective assistance of counsel warranting an evidentiary hearing under State v. Preciose, 129 N.J. 451, 462-63 (1992), based on the plain language of the plea colloquy. This appeal ensued.
On appeal, defendant argues the court erred in failing to conduct an evidentiary hearing to determine the merits of his claim that trial counsel was ineffective in failing to inform him of the CSL penal consequences of his plea, he would not have entered the plea if he had the correct information, and his plea should be vacated. He also contends he demonstrated excusable neglect for his delay in filing the second PCR petition and his ineffective assistance of counsel claims relating to the entry of an involuntary and unknowing guilty plea implicate constitutional concerns which justify relaxing any procedural bars. Defendant also generally "re-asserts all points" raised before Judge Austin on PCR.
Based on our review of the record, we are not persuaded by any of defendant's arguments. Defendant's PCR petition was clearly filed substantially outside of the general five-year bar in effect at the time of his plea and is procedurally time-barred. R. 3:22-12. Defendant's claims of excusable neglect are nothing more than bare allegations, insufficient to support a PCR petition. See, e.g., State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (l999). At oral argument, PCR counsel first claimed defendant was told by his first PCR counsel that he should withdraw his petition and refile it when he was released from prison. Defendant never certified to that fact and merely made the unsworn response at oral argument that the vague statement was "correct."
Moreover, the record belies the truth of this claim as defendant did not file his second PCR when he was released from prison. Although the record does not reflect the date of defendant's release, it does reflect that defendant's l998 sentence was for a seven-year flat term, with 772 days of jail credits. Defendant's first PCR reflects that he was incarcerated when he filed it in May 2002. However, defendant was released prior to his filing of the present April 2009 PCR petition, which reflects he was incarcerated on "unrelated charge(s)." In fact, as noted by the State, in 2007, defendant committed an endangering the welfare of a child offense, violating his CSL, for which he was sentenced to an eighteen-month term. We affirmed defendant's conviction and sentence in an unpublished opinion, State v. Hohsfield, No. A-3988-08 (App. Div. Jan. 26, 2011), and the Supreme Court denied certification, 207 N.J. 65 (2011).
Nevertheless, defendant's PCR petition is without any merit on substantive grounds. The record reveals defendant entered his guilty plea knowingly and voluntarily as to all aspects, including the penal consequences, and gave an adequate factual basis for the conviction of second-degree sexual assault. Defendant signed several forms as part of the plea agreement detailing restrictions and consequences pertaining to sexual offenses. He completed four pages of questions concerning registration, address verification, notification, Avenel examinations, the potential for involuntary commitment, and DNA testing. Most critical to this appeal, defendant completed a separate category on these two forms containing three questions specifically pertaining to CSL.
Defendant also was informed of the penal consequences of his plea by the judge during his plea hearing that tracked the language of the plea form. The judge had a colloquy with defendant in which he expressly asked whether defendant understood that by pleading guilty to the crime of sexual assault, he would receive, "in addition to any other sentence . . . a special sentence of community supervision for life"; if he violated CSL, he may be charged with a fourth-degree crime; and if he violated CSL by committing certain enumerated offenses for which he was convicted, he would receive an extended term of imprisonment. After each question, defendant acknowledged his understanding. Defendant also had no questions for either counsel or the court concerning the proceedings when the court offered him the opportunity to do so.
We are in accord with Judge Austin's statement during the PCR argument that CSL is self-explanatory. The fact the court did not communicate the minutiae of CSL, such as "not be[ing] able to consume alcohol, go out on Mischief Night, or live within a specified range of a public school," does not render defendant's plea invalid. See, e.g., State v. Burford, 163 N.J. 16, 21-22 (2000). Given the nature of defendant's charges, such restrictions, particularly those limiting his involvement with children, would be reasonably foreseeable to defendant.
As to defendant's other claims of ineffective assistance of trial counsel raised on PCR and renewed on appeal, we are satisfied he failed to establish ineffective assistance of trial counsel under the two-prong Strickland/Fritz test and discern no basis for further discussion. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors so serious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). See also R. 2:11-3(e)(2). Defendant also fails to provide any legitimate legal basis for the withdrawal of his guilty plea under State v. Slater, 198 N.J. 145, 157-58 (2009).
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