STATE OF NEW JERSEY VS. MITCHELL D. YASUKÂ (09-07-1274, OCEAN COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3438-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MITCHELL D. YASUK,
Defendant-Appellant.
____________________________
Submitted September 12, 2017 – Decided October 13, 2017
Before Judges Reisner and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No. 09-
07-1274.
Joseph E. Krakora, Public Defender, attorney
for appellant (Lee March Grayson, Designated
Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella,
Chief Appellate Attorney, of counsel; Shiraz
Imran Deen, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
Defendant Mitchell D. Yasuk appeals from a December 21, 2015
order denying his petition for post-conviction relief (PCR)
following an evidentiary hearing. We affirm.
I.
In January 2009, defendant was indicted and charged with two
crimes: second-degree luring, N.J.S.A. 2C:13-6, and fourth-degree
lewdness, N.J.S.A. 2C:14-4(b)(1). The charges against defendant
arose out of reports by several witnesses that defendant had lured
and attempted to lure a child into his apartment and then exposed
his penis to the child. Defendant had previously been convicted
of two counts of fourth-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a).
When arrested in 2008, he was living in an apartment that was
part of a three family home. Tenants in the other apartments
reported that on several occasions defendant attempted to lure
their children into his apartment when he was naked or when his
penis was exposed.
In July 2009, defendant pled guilty to second-degree luring,
N.J.S.A. 2C:13-6, and third-degree attempting to endanger the
welfare of a child, N.J.S.A. 2C:5-1 and 2C:24-4(a). In pleading
guilty, defendant testified that in July 2008, he brought a puppy
into his apartment to purposefully lure a child into his apartment
so that he could expose his private parts to the child to arouse
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his own sexual desire. Defendant also admitted that the child had
followed him into the apartment, defendant was naked, and
defendant's purpose was to attempt to endanger the morals of the
child.
At the time of his guilty plea, defendant signed two
supplemental plea forms concerning additional questions for
certain sex offenders. Those forms expressly informed defendant
that, given the crimes to which he was pleading guilty, he could
be subject to civil commitment following the completion of his
sentence. Those forms were then reviewed with defendant during
his plea.
Consistent with the negotiated plea agreement, on the
conviction for luring defendant was sentenced to six years in
prison with five years of parole ineligibility. On the conviction
for attempting to endanger the welfare of a child, he was sentenced
to a concurrent term of five years in prison. In accordance with
Megan's Law, N.J.S.A. 2C:7-1 to -11, defendant was also sentenced
to parole supervision for life.
Defendant did not appeal his conviction or sentence. Instead,
in August 2013, defendant filed this petition for PCR. The PCR
court held an evidentiary hearing and heard testimony from
defendant and defendant's trial counsel. In connection with the
hearing, the PCR court denied defendant's request to present expert
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and factual testimony from an attorney on the issue of ineffective
assistance of counsel.
Following the hearing, the court denied defendant's PCR
petition and issued a written decision explaining the ruling. The
PCR judge reviewed defendant's contention that his trial counsel
had been ineffective in failing properly to investigate the case
and in not explaining to defendant that he could be subject to
civil commitment after he served his sentence.
With regard to the failure to investigate, the court reviewed
two certifications from proposed defense witnesses, but found that
the proffered testimony was not material. Specifically, the court
found that the two witnesses would have testified about defendant's
physical condition and a dispute concerning rent with the tenants.
The PCR judge found that the proposed testimony concerning the
rent dispute was inadmissible hearsay, and that trial counsel was
aware of defendant's physical conditions.
Turning to the question of whether defendant was aware of the
possibility of civil commitment, the judge found that defendant
was well aware of that possibility. Specifically, the judge
pointed out that in the plea forms and during the plea colloquy,
defendant had been informed that he was subject to possible civil
commitment. The court also found defendant's claim that he was
not aware of the potential for civil commitment to be incredible.
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Turning to the proffer of testimony from the attorney who was
offered as an expert and fact witness, the court found that there
was no reason to allow the testimony because expert testimony was
not necessary and, as to the facts, the expert was only offering
hearsay.
II.
On appeal, defendant makes five arguments, which he
articulates as follows:
POINT I – POST-CONVICTION RELIEF SHOULD BE
GRANTED AND THE DEFENDANT'S CONVICTION
REVERSED BECAUSE TRIAL COUNSEL WAS DEFICIENT
BY NOT PROVIDING ADVICE TO THE DEFENDANT ABOUT
THE RISK OF CIVIL COMMITMENT UPON COMPLETION
OF INCARCERATION, PURSUANT TO THE SEXUALLY
VIOLENT PREDATOR ACT (SVPA), IN VIOLATION OF
THE UNITED STATES AND NEW JERSEY
CONSTITUTIONS.
POINT II – POST-CONVICTION RELIEF SHOULD BE
GRANTED AND THE DEFENDANT'S CONVICTION
REVERSED BECAUSE TRIAL COUNSEL DID NOT CONDUCT
AN ADEQUATE INVESTIGATION, FAILED TO CONTACT
KEY DEFENSE WITNESSES AND NEGLECTED TO OBTAIN
THE DEFENDANT'S MEDICAL RECORDS, WHICH WOULD
HAVE REVEALED A VIABLE DEFENSE, DUE TO HIS
MEDICAL PROBLEMS, AND DEMONSTRATED THAT THE
TENANTS HAD A MOTIVE TO FABRICATE A STORY TO
AVOID EVICTION.
POINT III – POST-CONVICTION RELIEF SHOULD BE
GRANTED AND THE DEFENDANT'S CONVICTION
REVERSED BECAUSE THE DEFENDANT HAS
DEMONSTRATED A COLORABLE CLAIM OF INNOCENCE
AND SATISFIED THE SLATER CRITERA.
POINT IV – THE PCR COURT ERRED BY BARRING
REBUTTAL TESTIMONY FROM ATTORNEY JOAN VAN PELT
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WHO WAS RETAINED AS AN EXPERT WITNESS FOR THE
DEFENDANT IN HIS PETITION AND TO WHOM DEFENSE
COUNSEL ADMITTED THAT NO INVESTIGATION WAS
CONDUCTED IN PREPARATION FOR TRIAL OR ADVICE
GIVEN REGARDING THE RISK OF CIVL COMMITMENT
IF THE PLEA OFFER TO THE ACCUSATION WAS
ACCEPTED.
POINT V – THE PCR COURT ERRED BY BARRING EXPERT
TESTIMONY FROM ATTORNEY VAN PELT ON THE ISSUE
OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
BECAUSE SHE POSSESSED SPECIALIZED KNOWLEDGE
REGARDING POLICY AND TRAINING AT THE PUBLIC
DEFENDER'S OFFICE PERTAINING TO THE DEFENSE
OF SEX CRIME CASES AND SVPA THAT WOULD HAVE
ASSISTED THE TRIER OF FACT TO UNDERSTAND THE
EVIDENCE
The record and law do not support any of these arguments. We
will briefly address each argument.
A. The Possibility of Civil Commitment
When defendant pled guilty, he expressly affirmed that he
understood that he could be civilly committed for up to life if,
after a hearing, the court found that defendant was in need of
involuntary civil commitment. That risk was disclosed both in the
plea forms and in the colloquy with the plea judge. Moreover, at
the PCR hearing, defendant's trial counsel testified that he
discussed the possibility of civil commitment with defendant and
that defendant affirmed that he understood that possibility. The
PCR judge found that testimony to be credible. We discern no
basis to disturb the judge's credibility determination. See State
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v. Nash, 212 N.J. 518, 540 (2013) (recognizing the deference due
to a credibility finding made by a PCR judge after a hearing).
B. Defendant's Claim That Trial Counsel Was Ineffective
To establish a claim of ineffective assistance of counsel, a
defendant must show that counsel rendered inadequate
representation and that the deficient performance caused defendant
prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.
Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105
N.J. 42, 52 (1987). In that regard, a defendant seeking to set
aside a guilty plea must demonstrate that counsel's assistance was
not "within the range of competence demanded of attorneys in
criminal cases," and "that there is a reasonable probability that,
but for counsel's errors, defendant would not have pled guilty and
would have insisted on going to trial." See State v. DiFrisco,
137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S.
258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973), and
Hill v. Lockhart, 474 U.S. 52, 60, 106 S. Ct. 366, 370, 88 L. Ed.
2d 203, 210 (1985)).
Here, defendant contends that his trial counsel was deficient
for two reasons. First, he claims that counsel failed to
investigate his case. Second, he claims that counsel failed to
inform him of the possibility of civil commitment. We have already
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upheld the PCR judge's finding that defendant was informed of the
possibility of civil commitment and, thus, that claim fails.
In support of his claim that his trial counsel failed to
investigate the case, defendant submitted affidavits from two
witnesses. As already summarized, those witnesses claim that they
had spoken to defendant about a rental dispute with the parents
of the child who was the subject of the luring. The PCR court
correctly found that such testimony would have been inadmissible
hearsay. N.J.R.E. 801(c). The witnesses also proposed to testify
about defendant's weak physical condition. The PCR judge found
that trial counsel was well aware of defendant's limited physical
condition and considered that fact in connection with discussing
the guilty plea with defendant. That finding is supported by
substantial credible evidence in the record and we find no basis
to disagree with that finding.
C. Defendant's Request To Withdraw His Guilty Plea
Defendant also claims that he is innocent and should be
allowed to withdraw his guilty plea. Courts evaluate four factors
in assessing whether a defendant has demonstrated a valid basis
for withdrawing a guilty plea. State v. Slater, 198 N.J. 145,
157-58 (2009). Those factors are (1) whether defendant has
asserted a colorable claim of innocence; (2) the nature and
strength of defendant's reason for withdrawal; (3) the existence
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of a plea bargain; and (4) whether withdrawal would result in
unfair prejudice to the State or unfair advantage to the accused.
Id. Evaluating those Slater factors in light of the record in
this case, defendant has not established a basis to withdraw his
guilty plea.
First, defendant has failed to demonstrate a colorable claim
of innocence. He has pointed to nothing in the record to support
his assertion of innocence. Second, defendant has not demonstrated
that the reasons for his request for withdrawal are strong. In
that regard, he relies on his arguments concerning the ineffective
assistance of counsel. We have already analyzed those arguments
and they do not have merit. Third, there was a negotiated plea
agreement. Had defendant gone to trial, he could have been
sentenced to over eleven years in prison. Under the plea bargain,
he received an aggregate sentence of six years. Finally, the
interests of justice do not support vacating defendant's guilty
plea.
D. The PCR Court's Decision Not To Allow Testimony
From A Proposed Attorney Expert Witness
As already noted, the PCR judge did not allow defendant to
call an attorney as a proposed expert and fact witness. That
attorney had interviewed trial counsel and planned to offer expert
testimony related to the claim of ineffective assistance of
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counsel. The attorney also proposed to offer testimony about what
trial counsel had told her.
The PCR judge did not abuse his discretion in determining
that he did not need to hear from an expert concerning the question
of ineffective assistance of counsel. N.J.R.E. 702; see State v.
Martini, 160 N.J. 248, 263 (1999) (affirming a PCR court's decision
to not allow expert testimony because it would not assist the
trier of fact), cert. denied, 543 U.S. 1025, 125 S. Ct. 662, 160
L. Ed. 2d 503 (2004). Moreover, we find no abuse of discretion
in the court's decision not to hear any factual testimony the
expert might have offered because it would not have changed the
result of the PCR decision.
Affirmed.
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