STATE OF NEW JERSEY VS. E.A. (12-06-0871, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-0024-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
E.A.,
Defendant-Appellant.
_____________________________
Submitted October 3, 2019 – Decided November 4, 2019
Before Judges Nugent and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 12-06-0871.
Joseph E. Krakora, Public Defender, attorney for
appellant (Karen A. Lodeserto, Designated Counsel, on
the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (William P. Miller, Assistant Prosecutor, of
counsel; Catherine A. Foddai, Legal Assistant, on the
brief).
PER CURIAM
Defendant E.A. appeals from the August 2, 2018 order of the Law
Division denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
I.
The following facts are derived from the record. Because the trial court
did not hold an evidentiary hearing, some facts are undeveloped. Between May
2010, and October 31, 2011, defendant, who was then eighteen, nineteen, and
twenty years old, was involved in a sexual relationship with N.A., who was then
thirteen, fourteen, and fifteen years old. N.A., a friend of defendant's younger
sister, became pregnant with defendant's child when she was fifteen. Defendant
was married to another woman and had a son at the time N.A.'s pregnancy was
revealed.
A grand jury indicted defendant, charging him with: (1) three counts of
second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4); and (2) one count of third-
degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
Pursuant to a negotiated plea agreement, defendant pled guilty to third-
degree endangering the welfare of a child. At his plea hearing, defendant, who
was represented by counsel, admitted to having impregnated N.A. when she was
fifteen. Prior to taking defendant's plea, the court engaged in the following
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colloquy with respect to defendant's potential sentence, which would include
parole supervision for life (PSL):
THE COURT: Three years New Jersey State Prison,
suspended.
....
Megan's Law reporting. P.S.L., Avenel. [M]eans you
get – go for an Avenel exam, DNA testing and
sampling, only contact with the victim as per DYFS 1
orders. That's it. Understand that?
[E.A.]: Yes.
....
THE COURT: Now, a couple of things I have to tell
you beside all that.
Sentence will be suspended, means you're not going to
jail, but understand that you have to register, this is the
Megan's Law stuff. You have to reg – register with
certain public agencies. You understand that?
[E.A.]: Yes.
....
THE COURT: You understand that because of what
you're pleading guilty to, and because the offense took
place after January 14th, '04, the Court in addition to
1
DYFS was a common reference to the Division of Youth and Family Services
before the agency's name was changed to the Division of Child Protection and
Permanency in a 2012 reorganization. L. 2012, c. 16.
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any other sentence will impose a special sentence of
parole supervision for life. Understand that?
[E.A.]: Yes.
THE COURT: By being sentenced to parole
supervision for life, it means release – that upon release
from incarceration, immediately upon imposition of a
suspen – of a suspended sentence, you'll be supervised
by the Division of Parole for at least 15 years, subject
to provisions and conditions of parole, including
conditions to protect the public, foster rehabilitation,
such as but not limited to counseling, other restrictions
which may include restrictions [on] where you live,
work, travel, or persons you can contact. You
understand that?
[E.A.]: Yes.
....
THE COURT: You plead guilty in this case . . . [n]o
contact with the victim, except under DYFS Family
Court Orders. Got it?
[E.A.]: Yes.
At sentencing, the effect of PSL on defendant's living arrangements was
discussed:
[DEFENSE COUNSEL]: [T]here's one snag and I
know you're not going to have anything to do with this,
but he lives in a basement apartment at his home. His
mother and father live on the first floor with their three
– his three sisters.
THE COURT: Yes.
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[DEFENSE COUNSEL]: And he was notified . . . that
he's going to have to move –
THE COURT: Yes. Because he can't be around the
kids. Right?
[DEFENSE COUNSEL]: Which – but – but he does
have a separate apart – now, I know you don't have
anything to do with that, but, hopefully, we'll work it
out with them.
THE COURT: Yes. Maybe you could.
....
[ASSISTANT PROSECUTOR]: And that P.S.L. does
apply in contact with victim only as per DYFS or –
THE COURT: Yes. DYFS or Family Court Orders.
According to the judgment of conviction, the court "suspend[ed] the imposition
of the sentence for [three] [y]ears [f]lat, N[ew] J[ersey] S[tate] P[rison,]"
imposed PSL, and dismissed the remaining counts of the indictment. Defendant
did not file an appeal of his sentence. 2
2
The suspension of a State prison term, as distinguished from the suspension
of the imposition of sentence, is not a disposition authorized by the New Jersey
Code of Criminal Justice. "[T]he court may suspend the imposition of sentence"
or impose a term of imprisonment. N.J.S.A. 2C:43-2. See also State v. Cullen,
351 N.J. Super. 505, 507-08 (App. Div. 2002). Because defendant raises claims
related only to the PSL aspect of his sentence, for purposes of this appeal we
will construe the judge's disposition to mean imposition of defendant's sentence
was suspended for three years with the immediate commencement of PSL. See
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More than four years later, defendant filed a petition for PCR. It is unclear
what gave rise to the filing of the petition. The court infers from the record
defendant intends to live with N.A., who is now an adult, and their son. It
appears that officials responsible for implementing defendant's PSL informed
him he could not reside with N.A. and their child. The status of defendant's
marriage and whether he intends to live with his first child is not addressed in
the record.
An amended PCR petition, filed by counsel, alleged defendant's sentence
is "fundamentally unfair as applied to him under the unique circumstances of
this case" and a violation of federal and State due process guarantees. In
addition, the amended petition alleged defendant was denied the effective
assistance of counsel because he was not fully advised of the effects of PSL and,
had he been so advised, would not have entered a guilty plea.
An undated letter brief filed on behalf of defendant in the trial court
addresses both points alleged in his amended PCR petition. At the start of the
hearing on the amended petition, however, defendant's counsel described
N.J.S.A. 2C:43-6.4(b) ("When the court suspends the imposition of sentence on
a defendant who has been convicted of" a violation of N.J.S.A. 2C:24-4(a) "the
court may not suspend imposition of the special sentence of parole supervision
for life, which shall commence immediately . . . .").
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defendant's ineffective assistance claim as "more of an ancillary component" of
the amended petition and withdrew that claim. Counsel stated the only claim
remaining before the court was "the provisions of the sentence are
fundamentally unfair as applied to [him] under the unique circumstances of this
case . . . ." A letter from defendant's counsel to the court the day after the hearing
confirms "after consultation it was determined to withdraw the claim of
ineffective assistance of counsel . . . ."
In an oral opinion, the trial court acknowledged defendant's withdrawal of
his ineffective assistance of counsel claim. The court, however, explained why
that claim, had it not been withdrawn, would have been denied. The court
concluded the record demonstrated that prior to entering his guilty plea
defendant was fully aware he would be subject to PSL. In addition, the court
found defendant was aware he would be subject to restrictions on where he could
live and persons with whom he could have contact. The court noted that at
sentencing defendant's counsel raised with the court limitations imposed with
respect to defendant occupying an apartment in a building where his minor
sisters resided, evidencing his awareness of PSL limitations on residing with
minor relatives.
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In addition, the court found defendant could not establish that had he been
informed of the limitations of PSL, he would not have pleaded guilty. The court
noted defendant was facing three second-degree counts of sexual assault,
conviction of which would have exposed him to a significant period of
incarceration and PSL. The court found the State's proofs were "extremely
strong," given that N.A. gave birth to defendant's child when she was a minor
and concluded defendant's counsel negotiated an "extremely favorable" plea
agreement. Having found defendant failed to make a prima facie claim for
ineffective assistance of counsel, the court concluded an evidentiary hearing
would not have been warranted, had defendant's claim not been withdrawn.
Finally, the trial court concluded defendant's constitutional challenge to his
sentence was barred by Rule 3:22-4, as he could have challenged his sentence,
including PSL, in a direct appeal.
This appeal followed. Defendant makes the following argument for our
consideration:
THE PCR COURT ERRED IN DENYING
DEFENDANT AN EVIDENTIARY HEARING
BECAUSE TESTIMONY IS NEEDED REGARDING
THE SUBSTANCE [OF] THE LEGAL ADVICE
PLEA COUNSEL PROVIDED TO DEFENDANT
REGARDING PSL AND MEGAN'S LAW
REGISTRATION AND IF HE WAS TOLD HE
CANNOT RESIDE WITH N.A. AND THEIR CHILD.
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II.
"Post-conviction relief is New Jersey's analogue to the federal writ of
habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-
2(a), a defendant is entitled to post-conviction relief if there was a "[s]ubstantial
denial in the conviction proceedings of defendant's rights under the Constitution
of the United States or the Constitution or laws of the State of New Jersey
. . . ." "A petitioner must establish the right to such relief by a preponderance
of the credible evidence." Preciose, 129 N.J. at 459. "To sustain that burden,
specific facts" that "provide the court with an adequate basis on which to rest its
decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
A hearing on a PCR petition is required only when: (1) a defendant
establishes a prima facie case in support of PCR; (2) the court determines that
there are disputed issues of material fact that cannot be resolved by review of
the existing record; and (3) the court determines that an evidentiary hearing is
required to resolve the claims asserted. State v. Porter, 216 N.J. 343, 354 (2013)
(citing R. 3:22-10(b)). "A prima facie case is established when a defendant
demonstrates 'a reasonable likelihood that his or her claim, viewing the facts
alleged in the light most favorable to the defendant, will ultimately succeed on
the merits.'" Id. at 355 (quoting R. 3:22-10(b)).
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We review the legal conclusions of a PCR court de novo. State v. Harris,
181 N.J. 391, 419 (2004). Where an evidentiary hearing has not been held, it is
within our authority "to conduct a de novo review of both the factual findings
and legal conclusions of the PCR court . . . ." Id. at 421. We review a judge's
decision to deny a PCR petition without an evidentiary hearing for abuse of
discretion. Preciose, 129 N.J. at 462.
While defendant acknowledges he withdrew his ineffective assistance
claim in the trial court, his brief addresses only that claim. He makes no
argument with respect to why we should consider an argument he abandoned
before the trial court. As a general rule, we do not address claims not raised in
the trial court. See Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586
(2012); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); Pressler &
Verniero, Current N.J. Court Rules, cmt. 3 on R. 2:6-2 (2019). Defendant's
claim does not warrant an exception to the rule because it does not challenge the
jurisdiction of the trial court or substantially implicate the public interest.
Selective Ins. Co., 208 N.J. at 586. We therefore consider the issue waived.
We note, however, that having carefully reviewed defendant's arguments
in light of the record and applicable legal principles, we agree with the findings
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of fact and conclusions of law set forth in the judge's oral opinion supporting
the August 2, 2018 order. We add the following comments.
The Sixth Amendment to the United States Constitution and Article I,
Paragraph 10 of the New Jersey Constitution guarantee criminal defendants the
right to the effective assistance of counsel. State v. O'Neil, 219 N.J. 598, 610
(2014) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984); State v.
Fritz, 105 N.J. 42, 58 (1987)). To succeed on a claim of ineffective assistance
of counsel, the defendant must meet the two-part test established by Strickland
and adopted by our Supreme Court in Fritz. 466 U.S. at 687; 105 N.J. at 58.
Under Strickland, a defendant first must show that his or her attorney
made errors "so serious that counsel was not functioning as the 'counsel'
guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687. Counsel's
performance is deficient if it "[falls] below an objective standard of
reasonableness." Id. at 688.
A defendant also must show that counsel's "deficient performance
prejudiced the defense." Id. at 687. A defendant must establish that "there is a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Id. at 694. "A reasonable
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probability is a probability sufficient to undermine confidence in the outcome"
of the trial. Ibid."[A] court need not determine whether counsel's performance was
deficient before examining the prejudice suffered by the defendant as a result of
the alleged deficiencies." Id. at 697; State v. Marshall, 148 N.J. 89, 261 (1997).
"If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be
followed." Strickland, 466 U.S. at 697.
The record established that defendant was informed by the trial court at
his plea hearing he would be subject to PSL and faced restrictions on where and
with whom he could live. At sentencing, defense counsel raised with the court
the fact that parole officials had already informed defendant he could not live in
the basement apartment of a home in which his minor sisters also lived. He was,
therefore, aware PSL restricted his ability to live with relatives who were
minors. Defendant is unlike the defendant in State v. J.J., 397 N.J. Super. 91,
99 (App. Div. 2007), who was permitted to withdraw his guilty plea because, at
his plea hearing, he was informed only that he would be subject to "Megan's
Law requirements[,]" but not that he faced restrictions on where and with whom
he could live, including with his new wife and her child.
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We do not find the court's reference to defendant having contact with N.A.
only as permitted by DYFS to have been misleading. The trial court did not
state that DYFS might issue an order allowing defendant to live with N.A. and
the child. To the contrary, the court's statement appears to assume defendant
would not be living with N.A., and that State authorities and the court would be
involved in determining whether he would be permitted to have contact with
her, and, presumably the child.
Moreover, we agree with the trial court's conclusion defendant did not
establish a prima facie claim he would not have entered a guilty plea had he been
informed PSL would prevent him from living with N.A. and their child. The
evidence of guilt was insurmountable. The State needed only prove the
irrefutable facts of paternity, defendant's age, N.A.'s age, and the child's birth
date to establish defendant had sexual intercourse with a minor. He faced a
presumption of lengthy incarceration and PSL if convicted of the second-degree
offenses alleged in the indictment. In addition, it is highly unlikely defendant's
counsel could have negotiated a more favorable plea agreement that did not
include PSL, given the facts of defendant's criminal acts.
Defendant's brief does not address his claim that application of PSL in the
unique circumstances of this case violates the federal and State constitutions.
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We therefore deem any arguments with respect to that claim waived. "[A]n issue
not briefed is deemed waived." Pressler & Verniero, Current N.J. Court Rules,
cmt. 5 on R. 2:6-2 (2019); Telebright Corp. v. Dir., N.J. Div. of Taxation, 424
N.J. Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the
party failed to include any arguments supporting the contention in its brief).
Affirmed.
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