On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 01-01-0058.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Hayden.
Defendant appeals from the May 8, 2009 Law Division order denying his petition for post-conviction relief (PCR). For the reasons that follow, we affirm.
Defendant was indicted by a grand jury for first-degree kidnapping, N.J.S.A. 2C:13-1b; first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4); two counts of third-degree criminal sexual contact, N.J.S.A. 2C:14-3a; second-degree aggravated sexual assault, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon (a knife), N.J.S.A. 2C:39-5d. The charges arose from an incident in 2001, during which defendant allegedly kidnapped M.J.,*fn1 a woman he had been dating, then sexually assaulted and stabbed her.
On January 29, 2002, Judge John Conte denied defendant's motion, pursuant to Miranda,*fn2 to suppress certain statements he made to police upon his arrest. The following day, defendant appeared before Judge Conte and entered a plea of guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(4). As part of the plea agreement, the State agreed to dismiss the remaining counts of the indictment and to recommend that defendant be sentenced as though he had committed a second-degree crime. Defendant was also subject to the requirements of Megan's Law, which included a five year parole supervision period, Community Supervision for Life, and provision of a DNA sample. At the plea hearing, defendant's attorney stated that he had reviewed the plea forms with his client. Judge Conte questioned defendant extensively at the plea hearing and pointed out that he would be subject to Megan's Law and Community Supervision for Life. Defendant confirmed that he understood the consequences of the plea, as well as the plea forms he had signed, and he had no questions for the judge about the plea. He then told the judge that he was guilty of aggravated sexual assault of M.J.
On June 14, 2002, Judge Conte sentenced defendant to nine years imprisonment with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, a five year parole supervision period, and Community Supervision for Life.
Defendant appealed, and following an excessive sentence hearing on June 8, 2004, this court remanded the case to allow defendant to withdraw his guilty plea pursuant to State v. Bellamy, 178 N.J. 127 (2003). Defendant, however, chose not to withdraw his plea. He then filed a motion for reconsideration of his sentence, which Judge Conte denied in a written opinion dated July 28, 2005. Defendant appealed, and in an order filed November 14, 2007, this court affirmed defendant's sentence on the opinion below, State v. Cox, No. A-1189-06 (App. Div. November 14, 2007), certif. denied, 196 N.J. 461 (2008).
Defendant subsequently filed a PCR petition, claiming that his counsel was ineffective for not preparing the case for trial and coercing him to take a plea. He also claimed that the sentence was manifestly excessive.
After hearing argument on May 8, 2009, Judge Donald R. Venezia denied defendant's petition. While the judge acknowledged that the petition was untimely, R. 3:22-12, he nevertheless, over the objection of the State, considered the merits of the petition. The judge observed that the trial attorney's performance was competent because, since defendant faced a twenty to twenty-five year sentence, it was very reasonable for defense counsel to recommend accepting the generous plea offer. The judge also pointed out that defendant's sworn statements at the plea hearing demonstrated that he understood the consequences of the plea bargain and had entered into it voluntarily. The judge noted that defendant did not present any facts to demonstrate that trial counsel was ineffective. Further, Judge Venezia held that, even if counsel had been deficient, defendant did not show the result would have been different. The judge determined additionally that the sentence fell well within the statutory range and, considering all circumstances, was not excessive. This appeal followed.
Defendant raises the following points for our consideration:
POINT I - THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial counsel was Ineffective for Failing to Investigate a Viable Defense by Conducting a Rape Shield Hearing Prior to ...