On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-08-1648.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 1, 2012 -
Before Judges Sapp-Peterson and Ostrer.
Defendant appeals from the trial court's order, after our remand, denying post-conviction relief (PCR) after an evidentiary hearing. We affirm.
Tried to a jury, defendant was convicted of two counts of third-degree attempting to lure or entice a child, N.J.S.A. 2C:13-6, and was sentenced in May 2002 as a persistent offender on one count to an extended term of eight years, with four years of parole ineligibility, concurrent to four years, with two years of parole ineligibility, on the other count. Megan's Law registration and community supervision was also mandated. Defendant did not testify at trial.
The facts and procedural history are set forth at length in our subsequent opinion affirming defendant's conviction on direct appeal, State v. Delgado, No. A-2467-02 (App. Div. April 5, 2004), and our opinion largely affirming the trial court's decision denying without a hearing defendant's PCR, but remanding for an evidentiary hearing solely on the claim defendant received ineffective assistance of counsel because his attorney failed to accurately advise him that if he testified, his prior convictions in New York for first degree sexual abuse would have been sanitized. State v. Delgado, No. A-5119-06 (App. Div. July 22, 2008).*fn1 Specifically, we decided defendant was entitled to an evidentiary hearing regarding:
1) what advice he was given and whether it was proper; 2) why he did not take the stand; 3) whether he would have testified if given the proper advice (assuming a finding that he was not); and 4) whether defendant's testimony may have made a difference, thereby warranting a new trial.
At the PCR hearing, the trial judge - who also presided over the jury trial seven years earlier - heard testimony from defendant's trial counsel, and defendant himself. Defendant testified that had he been aware his prior convictions would have been sanitized under Sands/Brunson,*fn2 he would have testified in his own defense. On direct examination, he testified briefly that he would have admitted meeting the girls on the Atlantic City boardwalk, but would have denied inviting them to go for a ride in his car.
On cross-examination, the State confronted defendant with his statement at sentencing, in which he admitted he met the young girls and spent two hours with them, during which he tied one child's shoelace, walked with the girls to a store several blocks from where he initially met them to buy them snacks and drinks, assisted one child perform flips in the park by placing his hands on her back and stomach, directed a child to "pee" in a bush, and offered to take one of the girls home. In his statement, defendant asserted the children approached him, requesting that he buy them food. He also contradicted one child's trial testimony that defendant put $3 in her waistband, and asserting he had no intention to harm or commit a sexual offense against the children. At the PCR hearing, defendant asserted his pre-sentencing statement was truthful, but then he disavowed his statement that he offered to take a child in his car. He again denied any intention to commit a sexual offense against the victims.
The trial judge found defendant received ineffective assistance of counsel, consisting of counsel's failure to advise defendant that if he chose to testify, his prior New York convictions for first degree sexual abuse would have been sanitized; and had defendant been given accurate advice about the potential use of his prior convictions, he would have testified. However, the court found defendant was not prejudiced.
Defendant argues the trial court erred by requiring a greater showing of prejudice than required by Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984). See State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey).*fn3 Although the trial judge did misstate the standard, we conclude his findings set forth in his written opinion ...