STATE OF NEW JERSEY VS. B v. (15-01-0097, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3552-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
B.V.,
Defendant-Appellant.
_____________________________
Submitted January 28, 2019 – Decided February 13, 2019
Before Judges Sabatino and Haas.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 15-01-
0097.
Joseph E. Krakora, Public Defender, attorney for
appellant (Mark Zavotsky, Designated Counsel, on the
brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piderit, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant B.V.1 appeals the trial court's October 19, 2017 order denying
his petition for post-conviction relief ("PCR"). For the reasons that follow, we
remand for an evidentiary hearing concerning his former counsel's failure to
move to dismiss the indictment before the entry of defendant's guilty plea to
sexual assault.
In 2014, defendant was charged with numerous offenses stemming from
his alleged sexual encounter with his thirteen-year-old sister. According to the
State's allegations, defendant sexually assaulted his sister in her bedroom while
their father was present in the house.
After the grand jury issued the indictment, 2 defendant's counsel negotiated
a plea agreement with the State. Defendant, who had been facing a sentencing
exposure of up to ten years in prison, agreed to plead guilty to second -degree
sexual assault, N.J.S.A. 2C:14-2(c). In turn, the State agreed to recommend that
defendant be sentenced in the reduced range of a third-degree offense and that
he receive a custodial term of no more than five years with various conditions.
1
We use initials to protect the identity of the victim, who is related to defendant.
2
Defendant's appellate counsel has not furnished us with the grand jury
transcript. Although it would have been helpful for us to have the transcript, we
will accept for sake of discussion the representations in the parties' briefs
concerning the contents of the transcript.
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2
On August 28, 2015, defendant presented his guilty plea in open court. At
that time, he admitted to a factual basis supporting the offense. He also
acknowledged that he was then satisfied with the services of his counsel.
Before sentencing, defendant moved to withdraw his guilty plea pursuant
to State v. Slater, 198 N.J. 145 (2009). On January 7, 2016, defendant appeared
before the trial court. The court first denied the motion to withdraw the plea and
proceeded with the sentencing. The court imposed a four-year custodial
sentence, a duration within the parameters of the plea agreement, along with
other conditions.
Defendant filed a direct appeal of his sentence, which was argued before
this court's Excessive Sentencing Oral Argument ("ESOA") panel. Among other
things, the ESOA panel considered defendant's argument that the trial court
should have granted his withdrawal motion under the criteria of Slater. On
October 18, 2016, the ESOA panel affirmed defendant's sentence.
Thereafter, defendant filed his PCR petition and motion for relief with the
trial court. Among other things in his application, defendant asserted his former
counsel had been ineffective in failing to move to dismiss the indictment before
the guilty plea was presented. According to defendant, counsel's ineffectiveness
A-3552-17T3
3
violated his rights under the Sixth Amendment and New Jersey law under the
two-part standards set forth in Strickland v. Washington, 466 U.S. 668 (1984).
The trial court denied defendant's PCR application and declined to order
an evidentiary hearing. As a procedural matter, the court ruled that defendant's
claims as to his plea withdrawal request were barred by Rule 3:22-5 because
they were already considered and rejected by the ESOA panel in October 2016.
In addition, the PCR judge ruled under Rule 3:22-4 that defendant's argument
that the indictment should have been dismissed due to alleged flaws in the grand
jury proceedings and alleged misconduct by the prosecutor should have been
raised earlier on direct appeal.
In his brief on the present appeal, defendant raises the following points:
POINT I
THE PCR COURT ERRED IN DENYING
DEFENDANT'S REQUEST FOR AN EVIDENTIARY
HEARING ON HIS CLAIM OF INEFFECTIVE
ASSISTANCE OF COUNSEL FOR COUNSEL'S
FAILURE TO CHALLENGE THE INDICTMENT,
AND IN INCORRECTLY AFFIRMING THE TRIAL
COURT'S DENIAL OF DEFENDANT'S MOTION TO
WITHDRAW HIS PLEA.
(A) APPLICABLE LAW.
(B) INEFFECTIVE ASSISTANCE OF COUNSEL
FOR FAILING TO CHALLENGE THE
INDICTMENT AND THE PCR COURT'S ERROR IN
AFFIRMING THE TRIAL COURT'S DENIAL OF
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DEFENDANT'S MOTION TO WITHDRAW HIS
PLEA.
Having duly considered these arguments, albeit without the benefit of the
grand jury transcript and notwithstanding the State's procedural contentions, we
remand for an evidentiary hearing before the PCR court. We do so because of
the following concerns.
According to defendant, during the grand jury proceedings, a juror asked
the prosecutor whether there was any DNA evidence to substantiate defendant's
commission of a sexual assault on his sister. In response to that query, the
prosecutor allegedly told the grand jurors that defendant's DNA had been found
on the sister's underpants. However, the prosecutor apparently did not inform
the grand jurors that defendant's own garments may have come into contact
innocuously with the victim's clothing in the laundry. 3 Furthermore, defendant
alleges the prosecutor did not divulge to the grand jurors the fact that defendant's
semen and DNA had not been found on the victim's bedsheets.
Accepting at face value defendant's assertions about these aspects of the
grand jury proceedings, there appears to have been at least a colorable basis for
3
The prosecutor asserts this is inconsequential because defendant allegedly did
not live regularly in the house, and also because defendant apparently was
wearing the same clothes at the time of his arrest.
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defense counsel to have considered moving to dismiss the indictment. Although
we are mindful that our courts only dismiss indictments in the rarest of
circumstances, the Supreme Court has also recognized that the prosecution may
not "deceive the grand jury or present its evidence in a way that is tantamount
to telling the grand jury a 'half-truth.'" State v. Hogan, 144 N.J. 216, 236 (1996).
The prosecution may not withhold evidence that is "so clearly exculpatory as to
induce a rational grand juror" to find that the State has not met its burden of
presenting a prima facie case of the charged offense. Ibid.
Although the co-mingling of the siblings' laundry and the absence of
defendant's semen or DNA on the bedsheets may not have been sufficiently
exculpatory facts to have required their affirmative disclosure to the grand
jurors, the alleged "half-truth" of the prosecutor in responding to the jurors'
question could have materially misled the grand jury panel into believing there
was unqualified and unassailable forensic DNA proof confirming defendant's
guilt. This subject must be explored in an evidentiary hearing.
In ordering a remand for such a hearing, we by no means determine that
the failure of defense counsel to move to dismiss the indictment was necessarily
in violation of the Strickland standards. While a motion to dismiss might have
been successful, defendant was not necessarily prejudiced by his counsel's
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forbearance. There may well have been strategic reasons to justify counsel's
approach, including, for example, the possibility that the State may have pulled
its advantageous plea offer if a withdrawal motion had been filed and failed.
Moreover, the State might have attempted to re-indict defendant before a new
grand jury, this time with the complete DNA-related proofs. Accordingly, we
defer such assessments to the trial court on remand, with the benefit of a fuller
record, including the testimony of defendant's former counsel if feasible.
Remanded for an evidentiary hearing. Defendant's conviction and
sentence remain in force pending the outcome of the remand. We do not retain
jurisdiction.
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