Opinion
DOCKET NO. A-5709-13T2
05-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. THOMAS STILES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Danielle Pennino, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment Nos. 00-08-0770 and 03-06-0526. Joseph E. Krakora, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, on the brief). Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (Danielle Pennino, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Thomas Stiles appeals the Law Division's June 10, 2014 denial of his petition for post-conviction relief (PCR) without evidentiary hearing. We affirm.
Defendant's claims of error involve two unrelated indictments. In the first indictment, defendant entered a guilty plea to fourth-degree child abuse, N.J.S.A. 9:6-3, and was sentenced on May 18, 2001, to a two-year term of probation in accordance with his plea agreement.
Approximately two years later, defendant was convicted by a jury on the second indictment. He was found guilty of second-degree attempted aggravated assault, N.J.S.A. 2C:14-2(a)(1) and 2C:5-1(a)(3) (count one); third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:24-4(c) and 2C:5-1(a)(3) (count two); and third-degree luring, N.J.S.A. 2C:13-6 (count three). He was sentenced to an eight-year term of imprisonment subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, on count one, and to concurrent four-year terms on counts two and three. Defendant was found guilty of violating his probation on the 2001 offense and resentenced to a concurrent nine months in jail. The sentences, imposed on November 19, 2004, were affirmed on direct appeal. State v. Stiles, No. A-4513-04 (Oct. 31, 2007). The Supreme Court denied certification. State v. Stiles, 194 N.J. 445 (2008).
The details of defendant's offenses are fully recounted in the prior opinion and need not be repeated here. Suffice it to say defendant was apprehended in a sting operation while attempting to engage in sexual relations with a child he met in an internet chat room. The "child" was actually a police officer playing a role as part of the operation.
During the trial, the judge repeatedly advised the jury to avoid media accounts at trial. In the opening instruction the trial judge told the jury, as part of his general charge, to avoid any media accounts. The directive tracked the model jury charge. Model Jury Charge (Criminal), "Instructions After Jury is Sworn" (2011). Additionally, over the several days of trial, prior to breaks, he repeated the instruction that the jury avoid media accounts. In his final charge, the judge instructed the jury one last time with regard to this issue.
On his direct appeal, defendant's pro se brief raised the issue of entrapment. We found that neither the law nor the facts supported the defense. Stiles, supra, (slip op. at 21-22).
Defendant's PCR petition, filed on September 19, 2008, raised the same issues he argues on appeal. He contended that trial counsel rendered ineffective assistance because he: failed to request a jury charge on the issue of entrapment; did not request that the court instruct the jury to avoid media accounts; did not file a motion to suppress the e-mails he sent to the police officer posing as a child victim; and did not object to the trial court's allegedly erroneous charge to the jury as to the statutory elements of the crimes. Defendant also argued that no criminal offense occurred because no actual child victim existed. Lastly, he asserted that he entered a guilty plea to the older indictment because his attorney incorrectly advised him that if he did so, his children would be returned to him and not placed in foster care.
In a cogent written opinion, the PCR judge rejected the arguments. First, defendant could not raise the entrapment issue for reconsideration because the matter had been already addressed on the direct appeal. See R. 3:22-5. The judge similarly found the defense of impossibility could not be raised by way of PCR, as that issue too was addressed on the direct appeal.
The PCR judge found the record did not support the claim that the trial judge omitted instructing the jury to avoid media accounts. He also found that had trial counsel sought to suppress the e-mails in this case, the motion would have been denied pursuant to State v. Evers, 175 N.J. 355 (2003), which was directly on point. In Evers, the Supreme Court found that the petitioner had no right to privacy in e-mails containing child pornography which were sent to another internet user. Id. at 370.
As to the contention that the trial judge erred in his charge to the jury on the offense of attempted aggravated sexual assault, the PCR judge observed that the model jury charge on attempted aggravated sexual assault charge was followed. Although the trial judge initially read some language from the indictment stating that defendant traveled to a predetermined location, he then proceeded to read the model charge. In the opinion of the PCR judge, the trial judge also gave the correct instruction on mistake of fact.
Finally, the PCR judge found that defendant's petition was time-barred. Citing to Rule 3:22-12(a)(1), he concluded that not only was the petition filed long after the five-year deadline, but defendant also proffered no excusable neglect.
Now on appeal, defendant raises the following points:
POINT I
THE PCR COURT IMPROPERLY DENIED MR. STILES'S PETITION FOR POST-CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING, WHERE MR. STILES HAD ESTABLISHED A REASONABLE LIKELIHOOD THAT HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL WOULD SUCCEED ON THE MERITS.
A. Counsel failed to request that the jury be charged as to an entrapment defense.
B. Counsel failed to object when the trial court neglected to advise the jury not to pay attention to any media accounts of the trial.
C. Counsel failed to object to the trial court's confusing charge as to the elements of the offense and as to the defense of mistake of fact which resulted in an unbalanced charge.
D. Prior Counsel was ineffective where Mr. Stiles involuntarily entered a plea of guilty to charges under Indictment I-00-08-0770.
Having considered the merits of the ineffective assistance of counsel claims, we agree with the PCR judge that defendant has failed to establish the requisite prongs of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) ("First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense."). We also agree that defendant was barred from raising the entrapment defense by way of PCR pursuant to Rule 3:22-5, which prohibits the reconsideration of issues raised on the direct appeal. Additionally, our review of the record supports the finding that the trial judge appropriately and repeatedly complied with his obligation to advise the jury to avoid media accounts.
Defendant's argument that counsel was ineffective because he failed to object to the trial court's jury instructions is barred by Rule 3:22-4. This argument should have been raised on direct appeal. Notwithstanding the failure to raise the issue on direct appeal, based upon our independent review of the jury instructions, we conclude they were not erroneous.
Finally, we agree with the PCR judge that defendant is out of time to raise any issue regarding his 2001 guilty plea. See R. 3:22-12(a)(1). Furthermore, this claim is supported only by defendant's bare allegation. See State v. Cummings, 321 N.J. Super. 154, 168 (App. Div.), certif. denied, 162 N.J. 199 (1999) ("Petitioner must offer something more than a bare allegation. Petitioner must initially allege specific facts which, if believed, would demonstrate the likelihood of injustice by a preponderance of the evidence.").
Having considered defendant's arguments in light of the record and applicable legal principles, we conclude they are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION