STATE OF NEW JERSEY VS. PAUL ANDERSON (01-09-1784, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5234-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PAUL ANDERSON,
Defendant-Appellant.
______________________________
Submitted October 21, 2019 – Decided December 30, 2019
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 01-09-
1784.
Joseph E. Krakora, Public Defender, attorney for
appellant (Damen J. Thiel, Designated Counsel, on the
brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Paul Anderson appeals from the denial of his petition for post-
conviction relief (PCR) without an evidentiary hearing. For the reasons that
follow, we affirm.
Defendant pled guilty to fourth-degree lewdness, N.J.S.A. 2C:14-4(b)(1),
on June 9, 2003. The court sentenced defendant on July 25, 2003, to five years
of non-custodial probation and required him to attend behavioral counseling.
Defendant did not file a direct appeal from his conviction or sentence.
The charges against defendant arose from an incident that took place on
July 20, 2001, with a twelve-year old victim. Defendant was subsequently
charged in an indictment with first-degree aggravated sexual assault, N.J.S.A.
2C:14-2(a)(1), second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a). On June 9, 2003,
defendant pled guilty to fourth-degree lewdness pursuant to a plea agreement,
after the third-degree endangering the welfare of a child charge was amended to
that charge. The remaining charges were dismissed.
At the plea hearing, defendant gave a factual basis for the offense. Defendant
further stated that he was not forced to plead guilty; he understood that he was giving
up his rights to a jury trial, to remain silent, and to confront the witnesses against
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him. Defendant also stated that he understood he would have a criminal record, and
that he was "satisfied with the services of" his plea counsel.
On July 25, 2003, defendant appeared for sentencing. At sentencing,
defendant acknowledged that he was unhappy with how this matter turned out, but
he did not seek to withdraw his plea. The sentencing judge imposed the probationary
term in accordance with defendant's plea agreement, and conditioned his probation
on, among other things, defendant's participation in behavioral counseling.1
Six months later, after defendant was convicted of driving while intoxicated,
he was charged with a violation of probation (VOP) for the new offense and for
failing to participate in behavioral counseling. A judge held a VOP hearing on
January 30, 2004, at which defendant pled guilty to the violation. The judge ordered
defendant to attend behavioral counseling by the re-sentencing date.
1
Although defendant was not required to comply with the requirements of
Megan's Law, N.J.S.A. 2C:7-1 to -23, the judge directed that he
register with the local police department and advise
them of his address yearly. . . . [T]he police [would be
advised] that [defendant was] convicted of a lewdness
offense and required as a condition of probation to
advise the police . . . immediately of any change[s to
his] address. If [defendant] move[d] to a new town, he
[was required to] follow the same procedure of letting
them know where he is.
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On March 12, 2004, defendant was represented by new counsel at sentencing
on the VOP. Defendant admitted that he failed to attend behavioral counseling but
blamed the failure on the cost and his plea counsel for "destroy[ing his] life." After
finding defendant had a negative attitude and that he failed to cooperate with
probation, the judge sentenced defendant to nine months in prison. Defendant filed
a motion for reconsideration of his sentence. On May 28, 2004, the judge vacated
the remainder of the jail term, reinstated five years of probation starting from July
25, 2003, and ordered that defendant obtain full-time employment.
Twelve years later, on August 17, 2016, defendant filed a PCR petition in
which he contended: trial counsel failed to fight the charges against defendant,
as there was insufficient evidence produced; his trial counsel lied to him about
the plea agreement; "a portion of defendant's testimony [was] removed from the
records"; the judge imprisoned defendant for failing to go to a doctor that the
judge had recommended; a "suggestion of guilt" was made by a probation
officer; the judge was biased towards defendant as they had a mutual friend;
additional charges were added against defendant by the State without any new
evidence; defendant's father observed the victim's mother being coerced into
filing a complaint; the victim's family and friends "plant[ed] money" in
defendant's house; defendant was followed by hit men who were hired by the
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victim's parents; the victim's family has incestual relationships; and the "plea
was [for] lewdness and nothing more."
A brief and amended petition were later submitted on behalf of defendant.
In this brief, defendant argued he was not procedurally barred from filing a late
PCR petition due to ineffective assistance of counsel (IAC), including his being
coerced to plead guilty, counsel's failure to interview potential witnesses, and
failure to prepare defendant's case. Defendant did not file his own certification
or any from any other person that set forth any specific facts in support of any
of his contentions on PCR.
Judge Leslie-Ann M. Justus considered oral argument on December 14,
2017, and entered an order denying defendant's petition on December 22, 2017,
after placing her reasons on the record that day. Initially, the judge found
defendant's petition to be time-barred under Rule 3:22-12, as his petition was
filed seven years after the five-year deadline established under the Rule. Judge
Justus then considered whether defendant established a reason under State v.
Mitchell, 126 N.J. 565, 580 (1992) to relax the Rule's time-bar. Since defendant
failed to provide any evidence as to why he waited twelve years to file his PCR
petition, the judge found there was no excusable neglect.
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Judge Justus also addressed the merits of defendant's IAC claim as to his
trial counsel. The judge observed that there was no evidence in the record to
support defendant's claim that his trial counsel coerced him into accepting the
plea. At the plea colloquy, defendant "freely, knowingly and voluntarily
pleaded guilty to the amended charge of fourth-degree lewdness." She noted
that defendant's plea counsel acted effectively by negotiating a favorable plea,
as defendant faced a maximum sentence of thirty-five years with seventeen years
of parole ineligibility, a fine between $300,000 to $400,000, and compliance
with Megan's Law.
Judge Justus then responded to each of the twelve points raised by
defendant in his initial petition. Addressing defendant's argument that his plea
counsel failed to fight the charges against him, the judge found that counsel had
advocated, negotiated, and obtained a favorable plea offer for defendant. On
defendant's claim that his counsel failed to provide him with accurate
information, the judge found that the argument was baseless. Additionally, since
defendant did not "specif[y] what testimony [he wanted] removed from the
record," that claim could not be considered. The judge also found that defendant
was jailed for violating probation and failing to participate in behavioral
counseling, not for failing to go to a doctor on the VOP judge's list. On that
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same claim, Judge Justus stated that there was not a claim for which relief could
be sought as the jail time was vacated on defendant's motion for reconsideration.
Addressing defendant's claims about his probation officer and the VOP
judge, the judge found them to be irrelevant and unsupported by the record.
Judge Justus also explained that the aggravated sexual assault charge was
included in the indictment as the State "establish[ed] a prima facie case" against
defendant. Addressing defendant's claim that the plea agreement was for
"lewdness and nothing more," the judge stated the claim was merely "a statement
of fact," in which no relief could be granted. The judge found defendant's
remaining arguments to be irrelevant to defendant's PCR petition or unsupported
by the record. After evaluating the petition in full, the judge concluded that
defendant's claims were not supported by evidence or were directly contradicted
by the record. This appeal followed.
Defendant presents the following issues for our consideration on appeal:
POINT I
THE PCR COURT ERRED IN DENYING
DEFENDANT'S PETITION FOR [PCR] BECAUSE
DEFENDANT'S TRIAL/PLEA COUNSEL WAS
INEFFECTIVE IN INVESTIGATING
DEFENDANT'S CASE AND DURING HIS GUILTY
PLEA.
POINT II
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THIS COURT SHOULD FIND THAT DEFENDANT
WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL IN HIS PETITION FOR [PCR], REVERSE
THE PCR COURT'S DECISION, AND REMAND
THIS CASE FOR A RE-HEARING WITH
EFFECTIVE COUNSEL REPRESENTING
DEFENDANT.
We are not persuaded by these arguments and affirm.
We conclude from our review of the record that Judge Justus correctly
found that defendant's petition was procedurally barred as untimely under Rule
3:22-12(a)(1), especially since defendant failed to demonstrate excusable
neglect and explain why he waited twelve years to file his petition. State v.
Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Even assuming that
defendant's petition was not time-barred, as the PCR judge determined, he failed
to make a prima facie showing of IAC under the well-settled test announced in
Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted by our
Supreme Court in State v. Fritz, l05 N.J. 42, 49 (l987).
Under Strickland, in order to prevail on a claim of IAC, a defendant must
meet the two-prong test: (l) that counsel's performance was deficient and he or
she made errors that were so egregious that counsel was not functioning
effectively as guaranteed by the Sixth Amendment of the United States
Constitution; and (2) that the defect in performance prejudiced defendant's right
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to a fair trial such that there exists a "reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 687, 694. Here, defendant failed to meet his
burden.
We find defendant's arguments to the contrary to be without sufficient
merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). We
affirm substantially for the reasons expressed by Judge Justus in her
comprehensive oral decision. We only reiterate that defendant's petition was
without any factual support. See State v. Cummings, 321 N.J. Super. 154, 170
(1999) (stating that a defendant "must do more than make bald assertions that
he was denied the effective assistance of counsel. He must allege facts sufficient
to demonstrate counsel's alleged substandard performance."). We also conclude
that the judge correctly held that under these circumstances, an evidentiary
hearing was not warranted. See State v. Preciose, 129 N.J. 451, 462-63 (1992).
As to defendant's claims against his PCR counsel, we decline to consider
the issue on appeal as such claims are reserved for a bona fide second PCR
petition. See R. 3:22-12(a)(2).
Affirmed.
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