September 11, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES COX, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 5, 2012
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 Entering into the Plea Agreement.
B. Trial Counsel was Ineffective Insofar as he Misinformed Defendant Regarding the Consequences of Community Supervision for Life POINT II - THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.
The relevant principles applicable to PCR petitions are well-settled. Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A person making a prima facie showing of entitlement to such relief, by demonstrating a reasonable likelihood that his or her claim will ultimately succeed on the merits, is generally entitled to an evidentiary hearing. Preciose, supra, 129 N.J. at 463. Without such a showing, no evidentiary hearing is required. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which were adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, defendant must first show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Next, defendant must show that his attorney's deficient performance prejudiced his defense. Ibid.
To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide representation that "'was within the range of competence demanded of attorneys in criminal cases.'" Strickland, supra, 466 U.S. at 687, 106 S. Ct. at 693, 88 L. Ed. 2d at 2064 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). To meet the second prong of the test, the defendant must show that "'there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Allegro, 193 N.J. 352, 366 (2008) (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). This exacting standard requires that the "error committed must be so serious as to undermine the court's confidence in the . . . result reached." Ibid. Moreover, in the context of a plea agreement, the Strickland standard requires defendant to show that, but for counsel's unprofessional conduct, defendant would have refused to plea guilty and would have insisted on going to trial. State v. DiFrisco, 157 N.J. 434, 457 (1994)
We have carefully considered defendant's contentions in view of the applicable law, and we conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). From our review of the entire record, we are satisfied that defendant has not established a prima facie case of ineffective assistance of counsel, as he has not shown his attorney's performance was deficient or resulted in prejudice to his case. See Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Further, while an excessive sentence is not an appropriate subject for PCR, State v. Acevedo, 205 N.J. 40, 46, (2011), we also reject defendant's assertion that his sentence was excessive where he pled to first-degree aggravated sexual assault and he was sentenced to the mid-range for second-degree aggravated sexual assault. See N.J.S.A. 2C:14-2a(4).