STATE OF NEW JERSEY VS. VALTER SFORCA (12-08-0621, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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-4486-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VALTER SFORCA,
Defendant-Appellant.
__________________________
Submitted January 6, 2021 – Decided February 1, 2021
Before Judges Geiger and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 12-08-0621.
Joseph E. Krakora, Public Defender, attorney for
appellant (Lee March Grayson, Designated Counsel, on
the brief).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Meredith L. Balo, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant Valter Sforca appeals from an April 25, 2019 Law Division
order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
We derive the following facts from the record. A Union County grand
jury returned a ten-count indictment against defendant. Pertinent to this appeal,
the indictment charged: first-degree aggravated sexual assault of a victim less
than thirteen years old, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree
sexual assault, N.J.S.A. 2C:14-2(b) (count four); fourth-degree criminal sexual
contact, N.J.S.A. 2C:14-3(b) (count six); and second-degree sexual assault,
N.J.S.A. 2C:14-2(b) (count seven).
During a February 19, 2013 pre-trial conference, defendant indicated that
he wanted to enter a plea but needed more time. The court afforded defendant
additional time, reminding him of the State's final plea offer and his sentencing
exposure if he went to trial—an aggregate fifty-five-year term, subject to an
eighty-five percent period of parole ineligibility. Defendant was advised that a
plea cutoff and trial date would be imposed if a plea agreement was not reached
by the next court appearance.
On March 12, 2013, defendant pled guilty to counts one, four, six, and
seven. The plea agreement recommended a ten-year term, subject to an eighty-
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five percent period of parole ineligibility under the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, on count one; a concurrent seven-year NERA term
on count four; an eighteen-month term on count six; and a seven-year NERA
term on count seven; with all terms running concurrently. Defendant would be
subject to Parole Supervision for Life, N.J.S.A. 2C:43-6.4, and Megan's Law,
N.J.S.A. 2C:7-1 to -23. The remaining six counts would be dismissed at
sentencing.
During the plea hearing, defendant acknowledged he had been provided
with full discovery and reviewed it with his attorney, including the police
reports. He further acknowledged: (a) discussing possible motions with
counsel; (b) he did not need additional time to speak to his attorney or anyone
else; (c) he understood the rights he would be waiving if he plead guilty; (d) no
one had forced or threatened him to waive those rights; and (e) he was "giving
[his] plea freely, voluntarily, knowingly and intelligently." Defendant also
acknowledged that he was satisfied with counsel's advice.
The terms of the plea agreement were recited on the record. Defendant
acknowledged that he read and understood the plea forms, initialed the forms,
and signed them. He further acknowledged that the answers on the plea forms
were his, that he had reviewed his answers with his attorney. Defendant also
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acknowledged his sentencing exposure on each count he was pleading guilty to
if he went to trial as well as the recommended sentence.
Defendant indicated that he was pleading guilty because he was guilty and
for no other reason. He then provided a detailed factual basis for each count
that he was pleading guilty to. As to each of those counts, he acknowledged the
identity and age of each victim at the time of the offenses. Each of the victims
were friends of defendant's daughter. As to count one, he admitted digitally
penetrating K.G.'s vagina for his own sexual gratification. K.G. was less than
thirteen years old at the time. As to count four, defendant admitted "touch[ing]
A.S. over the clothing on top of her genitalia, her vagina" for his "own sexual
gratification and own sexual arousal." A.S. was eleven years old at the time.
As to count six, he admitted touching M.M. "over the clothing on top of her
vagina and genitalia for [his] own sexual gratification and arousal." M.M. was
seventeen years old at the time. As to count seven, defendant admitted to
"touch[ing] K.M. on top of – over her clothing on top of her genitalia, or vagina,
for [his] own sexual gratification and arousal." K.M. was then eight years old.
The court accepted the pleas as being freely and voluntarily entered after
receiving the advice of competent counsel and that the pleas were supported by
adequate factual bases. Finally, defendant reiterated that he had no questions.
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On September 20, 2013, the court conducted the sentencing hearing.
Defense counsel indicated that the presentence report was accurate and asked
the court to impose the recommended sentence. Defendant chose not to allocute.
The court found aggravating factors one (nature of the offense), two (seriousness
of harm to the victim), three (risk of reoffending), and nine (need for deterrence).
N.J.S.A. 2C:44-1(a)(1), (2), (3), and (9). The court also found mitigating factor
seven (no prior record). N.J.S.A. 2C:44-1(b)(7). The court concluded that the
aggravating factors outweighed the sole mitigating factor. Defendant was
sentenced in accordance with the terms of the plea agreement. He did not file a
direct appeal.
On October 1, 2018, defendant filed a pro se petition for PCR. Counsel
was appointed to represent him and filed an amended petition. Defendant
claimed that his sentence on count one was illegal because there was no evidence
of digital penetration. Defendant also claimed: (1) trial counsel was ineffective
by advising him to plead guilty to a crime he did not commit; (2) his factual
basis was given unknowingly; (3) criminal sexual contact was not an enumerated
offense under N.J.S.A. 2C:47-1; and (4) the Sexual Assault Nurse Examiner
Program (SAANE) fee should not have been assessed on the criminal sexual
contact conviction.
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Judge Regina Caulfield found that defendant's claims were belied by the
plea transcript. As to count one, defendant twice admitted digital penetration.
While the phrase "digital penetration" may not have been used during the plea
hearing, the judge considered that mere "legal terminology" and noted defendant
"admitted putting his finger inside the vagina of [K.M.]. That is sufficient under
the law to qualify as an act of penetration and therefore forms the [factual] basis
of an aggravated sexual assault plea." Accordingly, the judge rejected
defendant's argument that counsel misinformed him about what would qualify
as penetration.
The judge noted that the plea hearing demonstrated that counsel reviewed
the discovery with defendant, including the police reports, and discussed
possible motions and the likelihood of conviction. As to defendant's claim that
counsel instructed him to plead guilty to the aggravated sexual assault, a crime
he now asserts he did not commit, the judge observed that defendant
acknowledged that no one forced him, instructed him, or expected him, to give
certain answers. On the contrary, defendant requested the judge to accept his
guilty plea and acknowledged that he was "pleading guilty because [he was]
guilty and for no other reason." Furthermore, defendant indicated that he did
not need more time to talk to his attorney, and did not express any confusion,
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hesitation, or disagreement with his attorney, and provided a factual basis for
each count. The judge pointed out that counsel was successful in negotiating
the minimum ten-year term on count one, where the sentencing range was ten to
twenty years, with all other terms running concurrently despite there being four
separate victims.
The judge labelled defendant's claim that counsel failed to investigate the
case as a mere "b[a]ld assertion." She found that he did not demonstrate any
facts that an investigation would have revealed.
The judge also rejected defendant's confusing argument that the
conviction for criminal sexual contact was invalid because it is not an
enumerated offense subject to Megan's Law. The court explained that defendant
pled guilty to aggravated sexual assault and sexual assault, each rendering him
subject to Megan's Law.
Finally, the judge rejected defendant's argument that a SAANE penalty
should not have been imposed on count six. The court found that the penalty
applied to criminal sexual contact.
Based on these findings and conclusions, the judge denied the petition,
determining that none of defendant's claims had merit, he had not established a
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prima facie case of ineffective assistance of counsel, and an evidentiary hearing
was not necessary. This appeal followed.
On appeal, defendant argues:
THE PCR COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR POST-
CONVICTION RELIEF WITHOUT AFFORDING
HIM AN EVIDENTIARY HEARING TO FULLY
ADDRESS HIS CONTENTION THAT HE
RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL FROM HIS PLEA ATTORNEY WHO (1)
MISINFORMED HIM ABOUT WHAT
CONSTITUTED PENETRATION FOR A FIRST-
DEGREE AGGRAVATED SEXUAL ASSAULT
OFFENSE; (2) INSTRUCTED HIM TO PLEAD
GUILTY TO THAT OFFENSE, A CRIME HE DID
NOT COMMIT; AND (3) DID NOT CONDUCT AN
APPROPRIATE INVESTIGATION.
Under the Sixth Amendment of the United States Constitution, a criminal
defendant is guaranteed the effective assistance of legal counsel in his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). A PCR petitioner must
satisfy the two-part test enunciated in Strickland by demonstrating that: (1)
counsel's performance was deficient, and (2) the deficient performance actually
prejudiced the accused's defense. Ibid.; accord State v. Fritz, 105 N.J. 42, 58
(1987) (adopting the Strickland two-part test).
In a conviction based on a guilty plea, the petitioner must show "a
reasonable probability that, but for counsel's errors, [the petitioner] would not
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have pleaded guilty and would have insisted on going to trial," Hill v. Lockhart,
474 U.S. 52, 59 (1985), and doing so "would have been rational under the
circumstances," Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (citing Roe v.
Flores-Ortega, 528 U.S. 470, 480 (2000)). See also State v. Nuñez-Valdéz, 200
N.J. 129, 139 (2009). "A reasonable probability is a probability sufficient to
undermine the confidence in the outcome." Strickland, 466 U.S. at 694.
A defendant is entitled to an evidentiary hearing only when he "has
presented a prima facie [case] in support of [PCR]," that a defendant "must
demonstrate the reasonable likelihood that his . . . claim will ultimately succeed
on the merits." State v. Marshall, 148 N.J. 89, 158 (1997) (first alteration in
original) (quoting State v. Preciose, 129 N.J. 451, 462-63 (1992)). Moreover,
an evidentiary hearing is not required unless the court determines "that there are
material issues of [disputed] fact that cannot be resolved by reference to the
existing record." R. 3:22-10(b). "Defendant may not create a genuine issue of
disputed fact, warranting an evidentiary hearing, by contradicting his prior
statements without explanation." State v. Blake, 444 N.J. Super. 285, 299 (App.
Div. 2016).
To establish a prima facie case of ineffective assistance of counsel,
defendant "must do more than make bald assertions" that counsel's performance
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was substandard. State v. Porter, 216 N.J. 343, 355 (2013) (quoting State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999)). "Rather, defendant
must allege specific facts and evidence supporting his allegations." Ibid."However, a defendant is not entitled to an evidentiary hearing if the 'allegations
are too vague, conclusory, or speculative.'" Id. at 355 (quoting Marshall, 148
N.J. at 158). "Thus, when a petitioner claims his trial attorney inadequately
investigated his case, he must assert the facts that an investigation would have
revealed, supported by affidavits or certifications based upon the personal
knowledge of the affiant or the person making the certification." Ibid. (quoting
Cummings, 321 N.J. Super. at 170). Accord R. 3:22-10(c).
Applying those principles, we affirm substantially for the reasons given
by Judge Caulfield in her thorough and thoughtful oral decision. We add the
following comments.
As correctly noted by the judge, under N.J.S.A. 2C:14-1(c), "sexual
penetration" includes "insertion of the hand, finger or object into the vagina by
. . . the actor." Moreover, "[t]he depth of insertion shall not be relevant as to the
question of commission of the crime." Defendant's testimony during the plea
hearing clearly established penetration. The judge properly rejected defendant's
claim that the factual basis was inadequate. More fundamentally, defendant has
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not demonstrated how counsel misinformed him of this element or how any such
misinformation rendered the plea invalid.
Defendant's contention that counsel failed to investigate his case
amounted to nothing more than an unsupported, bald assertion. Noticeably
absent was any evidence that additional investigation would have disclosed,
much less how that information would likely have changed the outcome of the
case.
Defendant claimed that the $800 SAANE penalty did not apply to criminal
sexual contact. We disagree. Criminal sexual contact, N.J.S.A. 2C:14-3(b), is
one of the offenses enumerated in N.J.S.A. 2C:7-2. Therefore, the SAANE
penalty was properly imposed on that count. N.J.S.A. 2C:43-3.6.
Lastly, defendant's claim that he was somehow pressured into pleading
guilty to count one despite being innocent of that crime is belied by the plea
hearing transcript. The record is barren of any evidence that he pled guilty to
that crime because he was coerced or threatened by counsel.
Defendant's arguments are without sufficient merit to warrant further
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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