Opinion
DOCKET NO. A-5927-12T3
07-01-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. S.C., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Kevin J. Murray, Assistant Prosecutor, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-02-0255 and 07-12-1952. Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Kevin J. Murray, Assistant Prosecutor, on the brief). PER CURIAM
In this appeal, defendant S.C. argues his post-conviction relief (PCR) petition, which was based upon his counsel's rendering of incorrect advice, was wrongly denied. We agree and determine that the interests of justice demand intervention. State v. Davila, 203 N.J. 97, 110 (2010); State v. Johnson, 42 N.J. 146, 161-62 (1964).
On January 17, 2007, defendant was indicted for two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and one count of child abuse, N.J.S.A. 9:6-1 and 9:6-3. The charges were based upon allegations that defendant sexually assaulted his fifteen-year-old cousin. On June 11, 2008, as jury selection was about to begin, he pled guilty to one count of second-degree sexual assault, as well as a disorderly persons offense. In exchange, the State agreed to dismiss all remaining charges and recommend a five-year prison term with Megan's Law sanctions, including parole supervision for life (PSL).
At the plea hearing, defendant expressed concern over whether the Megan's Law sanctions would impact his ability to live with his wife and infant child. He stated that he had refused to plead guilty up to that day because his prior counsel advised him that Megan's Law sanctions would prohibit him from residing in the household with his wife and child. After defendant raised this concern, the court expressed to defendant that the advice of his former counsel was "not necessarily true" and that:
It wouldn't be by virtue of Megan's Law that you could have a problem. In this case, there is no problem because there's no evidence that it involves your own child. The Division of Youth and Family Services operates separately, independently from the criminal law.
If this case involved your child and the likelihood is the Division of Youth and Family Services would move in the Family Court to bar you from residing with your child. That can happen. It does happen in some cases because they involved the children of the Defendant. But it is not - - being on Megan's Law isn't going to have that result. That's got nothing to do with it. Division of Youth and Family Services act on their own to do whatever they do.
The Division of Youth and Family Services is now the Department of Child Protection and Permanency.
The court went on to explain that "there's no indication that your daughter would be at risk. So it is not likely that the Division of Youth and Family Services would do anything because it doesn't involve your daughter . . . I can't guarantee it. I can only tell you Megan's Law does not require that." On this advice, defendant entered his guilty plea. Defendant's counsel made no objection or comment about the judge's statement at the plea hearing, and on September 26, 2008, defendant was sentenced in accordance with his plea, after his counsel made the following comment:
[Defendant] does have an eighteen-month[-old] child he's never personally spent time
with. That was one of the concerns in terms of pleading. He was very concerned that the Community Supervision and Megan's [Law] was going to preclude him from residing in the household with his wife and children. I know that's to be determined by others not here today, but the likelihood is remote that would be the case.
In September 2009, defendant filed a direct appeal, which was later withdrawn. On November 5, 2009, defendant filed a pro se PCR petition, alleging, among other claims, ineffective assistance of counsel. Thereafter, defendant was assigned counsel, who raised a variety of issues contesting the validity of the plea. On April 22, 2010, the PCR court held a non-evidentiary hearing and denied defendant's petition. Defendant appealed that ruling, and we remanded for a full evidentiary hearing to see whether the prongs of the Strickland test were met. State v. S.C., No. A-0888-10 (App. Div. March 9, 2012).
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
In S.C., supra, we held:
According to defendant, the Parole Board interpreted the parole supervision for life regulation to prevent him from living with his child. Thus, the judge's interpretation of the exception to the residency prohibition appears to differ from the interpretation, or at least the practice, of the Parole Board. Defendant points out that prior to the plea at issue here, in State v. J.J., 397 N.J. Super. 91 (App. Div. 2007), we had recognized the need to inform a
defendant of the residency restriction on living with a minor. In J.J., the defendant sought to withdraw his guilty plea to a sexual offense because he was not told that "the community supervision provision of his plea would prevent him from living with his new wife and her child." Id. at 99. While the defendant in J.J. had completed a form acknowledging the community supervision for life requirement, we were not satisfied the form provided sufficient notification about the restriction on living with his wife and her child as "the record does not reveal that he appreciated or was informed of the risk by the judge or by his attorney at or about the time he agreed to plead guilty." Id. at 100. See also [G.H. v. Twp. of Galloway, 401 N.J. Super. 392, 401 (App. Div. 2008)]. We agree with defendant's contention that, if his representations concerning the parole residency restrictions prove accurate, he should have been informed that persons convicted of covered sexual offenses, including sexual assault, were prohibited from residing with their children at the time of defendant's plea, rather than inaccurately told that no such requirement existed under Megan's Law.
[Slip Op. at 12-13 (footnote omitted).]
On May 3, 2013, the PCR judge held an evidentiary hearing pursuant to this court's March 9, 2012 decision. There, defendant testified that his first attorney informed him that if he did take the plea agreement, "which included Megan's Law, that [he] would not be able - - with the PSL and CSL [he] would not be able to reside with [his] family. . . . Because there's a stipulation in the PSL that states that you cannot reside in a household with minors." Defendant then testified that his substituted counsel, who appeared at the plea hearing, misinformed him, indicating that the same was not true. Defendant continued that the court at the plea hearing "remove[d] any doubt" as to whether he would be precluded from living with his children if he entered the plea. He stated that he had already been involved in discussions with the Division of Youth and Family Services and believed they would support him because they found he did not pose a risk to his family.
The PCR judge had also been the plea and sentencing judge. --------
Defendant also testified that he would not have pled guilty if he knew he would not be able to reside with his wife and child. To support this assertion, he pointed out that he had refused to enter a plea agreement when his first attorney had advised him he would be prohibited from residing with his family. He chose to sit in jail for over two years waiting for a trial to avoid that result. He further testified that despite his guilty plea, he was innocent and had been willing to go to trial.
A senior parole officer also testified during the evidentiary hearing. He testified that he had been a parole officer working with sex offenders since 2008, and defendant had been assigned to him since 2010. In our prior decision remanding this matter, it was made clear that this was a critical witness. Yet, his testimony was repeatedly interrupted by the judge. The witness explained that on the certification an inmate needed to sign to be released on PSL, one of the listed conditions was to not reside with a minor. The judge broke into the parole officer's testimony to state that was the case after 2010 when the law was amended, but not in 2008, which apparently was not the understanding of the parole office according to the officer's later testimony.
The judge then urged the witness to agree it was not "absolutely mandatory" since there were procedures to get approval to live with your child. The parole officer agreed that there were procedures to request approval to reside with your family, which involved evaluations and therapy before the request would be submitted for review. He further testified that these procedures could not start while the inmate had a pending appeal or a pending PCR petition. Despite the judge's suggestions to the witness that the procedure changed in 2010, the witness testified the same procedures were in place in the parole office since he started his employment in 2008.
Defendant's plea counsel also testified at the evidentiary hearing. He expressed that he was not aware of any Megan's Law restriction or rule in 2008 that would have "absolutely" prohibited defendant from residing with his minor child after release from his custodial sentence. He recalled that defendant was in fact concerned at the plea hearing about the consequences of Megan's Law. He also recalled that it was his recollection that he "advised [defendant] that it's a possibility that he would be precluded from residing with his children. That the determination would not be done by Your Honor at the time of the plea or at the time of sentencing." This advice is included in the transcript of the sentencing hearing, along with counsel's reassurance that "the likelihood is remote that would be the case."
After the above testimony, the PCR court again denied defendant's petition. The court found that there had never been an "absolute bar" preventing defendant from living with his children. Rather, defendant could have gone through a possible approval process that was foreclosed to him because he pursued his appellate rights, which the court deemed of defendant's own making. The court also found that defendant lacked credibility based on his claim of innocence after having pled guilty.
Defendant now raises the following arguments on appeal:
POINT I:Essentially, defendant argues his guilty plea "was not knowing, voluntary, or intelligent because he was misled by his attorney and the court regarding the residency consequences of parole supervision for life."
THE PCR COURT'S DETERMINATION THAT DEFENDANT'S TRIAL ATTORNEY DID NOT MISINFORM HIM REGARDING HIS ABILITY TO RESIDE WITH HIS MINOR CHILDREN AFTER HIS RELEASE WAS CONTRARY TO THE CREDIBLE EVIDENCE AND,
THEREFORE, THE COURT ERRED BY FINDING THAT THE DEFENDANT'S TRIAL ATTORNEY DID NOT RENDER INEFFECTIVE ASSISTANCE UNDER STRICKLAND.
POINT II;
DEFENDANT'S RELIANCE UPON TRIAL COUNSEL'S MISADVICE CONCERNING HIS ABILITY TO RESIDE WITH HIS CHILDREN AFTER HIS RELEASE RENDERED DEFENDANT'S PLEA INVOLUNTARY AND UNKNOWING UNDER R. 3:9-2 AND, THEREFORE, THE DEFENDANT SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA AND PROCEED TO TRIAL.
Claims of ineffective assistance of counsel must satisfy the two-prong Strickland/Fritz test. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; State v. Fritz, 105 N.J. 42, 58 (1987). The test requires a showing of (1) deficient performance by counsel; and (2) prejudice to the accused resulting from such deficient performance. Fritz, supra, 105 N.J. at 52. When a guilty plea is involved, defendant must show that (i) counsel's assistance was not "within the range of competence demanded of attorneys in criminal cases;" and (ii) "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." State v. Nunez-Valdez, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). Moreover, to obtain relief under the second prong, "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010) (citation omitted).
The applicable standard of review requires that we defer to a trial court's findings of fact when supported by substantial and credible evidence. That deferential standard, however, does not render all nonjury findings of fact impervious to review or appellate intervention. The standard instead permits an appellate court to disregard a finding of fact upon its own "feeling of 'wrongness,'" Johnson, supra, 42 N.J. at 162, i.e., when satisfied that the finding "'is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction.'" Davila, supra, 203 N.J. at 110 (quoting Johnson, supra, 42 N.J. at 162). As our Supreme Court has held, "while this feeling of 'wrongness' is difficult to define, because it involves the reaction of trained judges in the light of their judicial and human experience, it can well be said that that which must exist in the reviewing mind is a definite conviction that the judge went so wide of the mark, a mistake must have been made." Johnson, supra, 42 N.J. at 162.
The evidence is clear that defendant received ineffective assistance of counsel at his plea and sentencing hearing. Moreover, we have observed previously that "a guilty plea entered without sufficient understanding of the penal consequences is ordinarily invalid. Even misinformation about a collateral consequence may vitiate a guilty plea if the consequence is a material element of the plea." State v. Jamgochian, 363 N.J. Super. 220, 225 (App. Div. 2003) (citations omitted). See also State v. Och, 371 N.J. Super. 274, 285-86, (App. Div.) (defendant misinformed of the consequences of pleading, which included forfeiture of public office), certif. denied, 182 N.J. 150 (2004); State v. Garcia, 320 N.J. Super. 332, 339 (App. Div. 1999) (defendant misinformed of deportation consequences).
Defendant has proven not only that his counsel was ineffective, but that there is a reasonable probability that he would not have entered a guilty plea if he had been properly informed of the consequences. He did not plead guilty for two years because he thought that a guilty plea would prevent him from living with his family. It is unreasonable to blame defendant for not abandoning his PCR claim in the hope of successfully navigating a parole application process involving therapy and evaluation to possibly obtain the privilege of returning home to his family. Therefore, we reverse and remand the matter to the trial court to vacate the guilty plea and allow defendant to proceed to trial.
Reversed and remanded. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION