On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-10-1105.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and St. John.
Defendant Anthony Scott appeals from the July 20, 2010 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm the denial of his petition substantially for the reasons set forth by Judge Ostrer in his oral opinion of July 16, 2010.
Following a guilty plea for one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, defendant is serving a term of twelve years incarceration, with eighty-five percent of that term subject to parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Following the imposition of his sentence, defendant appealed his sentence as excessive, and we affirmed. State v. Scott, No. A-2224-06 (App. Div. June 4, 2007), certif. denied, 192 N.J. 479 (2007).
Defendant's conviction arose from a January 2005, act of vaginal intercourse with the victim, S.J., then twelve years old, in East Windsor Township. At that time, defendant was living with S.J. and her mother. At his plea hearing, defendant contended that S.J. forced him to have vaginal intercourse with her by threatening to make false allegations against him. Subsequently, S.J. became pregnant and aborted the fetus. DNA samples collected from the fetus and defendant were tested by the New Jersey State Police, which demonstrated that defendant was the father. During the plea hearing, defendant contended he was not the father because he used a condom, "and that's why I was challenging the DNA evidence." He raised the issue of retesting the DNA evidence. However, defendant admitted he had vaginal sexual intercourse with S.J., when she was less than thirteen years old.
Defendant filed a pro se PCR petition on August 25, 2009, followed by PCR counsel's brief and appendix in support of his petition. Defendant asserted that trial counsel was ineffective because she failed to move to withdraw defendant's guilty plea, to investigate potential witnesses, and committed cumulative errors. Defendant offered three sworn statements, comprised primarily of hearsay, alleging a cousin or an uncle sexually assaulted S.J. However, none of the statements provided any exculpatory facts relative to defendant's guilt. On July 16, 2010, a non-evidentiary hearing was held. The PCR judge denied defendant's petition in an oral opinion, and entered an order memorializing the denial on July 20, 2010.
Judge Ostrer determined that "there [was] no necessity for a factual hearing and that defendant [had] failed to establish even a prima facie case of ineffective assistance of counsel, nor [had] he established prejudice that would entitle him to relief[.]" He further stated that defendant's insistence that he did not force S.J to have vaginal intercourse and that he did not father the child were not grounds for PCR relief. During defendant's Avenel interview, he admitted to sexually assaulting S.J. on multiple occasions. The PCR judge also noted the favorable sentence negotiated by defendant's trial counsel, given that defendant was charged with three counts of first degree aggravated sexual assault, and that he was sentenced "at the lower end of the sentencing range."
Defendant appeals from the denial of his PCR petition, and raises the following issues ...