Date: 09-07-2016

Case Style: STATE OF NEW JERSEY VS. J.T.P.

Case Number: A-2986-14T1

Judge: PER CURIAM

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Gurbir S. Grewal, Acting Bergen County Prosecutor, Catherine A. Foddai, Senior Assistant Prosecutor

Defendant's Attorney: William Welaj

Description: Pursuant to a negotiated agreement with the State, on
October 4, 2011, defendant J.T.P. pled guilty to counts three
and four of Bergen County Indictment No. 10-12-02172, which
charged him with first degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a)(1),(2)(a). The victim was defendant's
stepdaughter. Defendant admitted he had sexual intercourse with
her on two occasions, in October 2006 and October 2009, when she
was less than thirteen years old. Under the plea agreement, the
State agreed to dismiss the remaining counts in the indictment
and recommend to the court that defendant be sentenced to a term
of ten years, with an eighty-five percent period of parole
ineligibility and five years of parole supervision as mandated
by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On April 13, 2012, the trial judge sentenced defendant to a
term of nine years, subject to NERA, and dismissed the remaining
counts in the indictment. Defendant appealed the sentence
imposed by the court under the summary process provided pursuant
to Rule 2:9-11. After considering the arguments of counsel, we
issued an order affirming the sentence. State v. [J.T.P.], No.
A-4552-11 (App. Div. Sept. 27, 2012).
On August 26, 2013, defendant filed this pro se PCR
petition alleging ineffective assistance of counsel. In a
handwritten statement, defendant alleges he "found discrepancies
A-2986-14T1 3
in the case file that [his] public defender refused to go over
with [him]." Defendant refers to the charges in counts two and
five of the indictment, which were dismissed under the terms of
the plea agreement. In a separate handwritten statement
attached to the PCR pro se packet, defendant claims he was
coerced into pleading guilty "without proper representation."
He also alleges his private attorney met with him to review his
case only "one time over a period of seven months."
The trial court appointed an attorney assigned by the
Public Defender's Office to represent defendant after he
expressed dissatisfaction with his private counsel's
performance. Defendant's allegations of ineffective assistance
involved the level of attention he received from the attorney
the Public Defender's Office assigned to represent him. The PCR
court assigned an attorney to represent defendant in prosecuting
this petition. PCR counsel filed an amended petition that
identifies certain discrepancies in the indictment related to
the dates on which defendant sexually assaulted the victim.
As an example, PCR counsel argued that count four in the
indictment identified October 26, 2009 and October 31, 2010, as
the two dates on which defendant sexually assaulted his
stepdaughter. The victim also claimed the sexual assaults
stopped nine months before defendant was arrested. Since
A-2986-14T1 4
defendant was arrested on July 28, 2010, PCR counsel argued
defendant was not free to sexually assault the victim on the
dates identified in count four of the indictment. Through this
timeline analysis, PCR counsel argued the entire indictment was
faulty and should have been dismissed. Defendant claims this
timeline defense was not pursued because of defense counsel's
inattentiveness and failure to meet with defendant to review
this evidence.
Defendant also claimed his attorney was ineffective in
failing to move to suppress an inculpatory statement he gave to
law enforcement investigators after his arrest. Defendant
claimed he was not properly apprised of his rights under Miranda1
and was coerced into giving a statement when the interrogators
told him he would never see the son he had with the victim's
mother unless he confessed. The boy was seven years old at the
time.
The matter came before the PCR court on August 4, 2014.
After hearing the arguments of counsel, the PCR judge found
defendant had not established a prima facie case of ineffective
assistance of counsel and denied the petition without conducting
an evidentiary hearing. The PCR judge explained her decision in
1 Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 1630, 16 L. Ed. 2d 694, 726 (1966).
A-2986-14T1 5
a memorandum of opinion. Defendant now appeals raising the
following arguments:
POINT I
THE TRIAL 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 WAS ENTITLED TO WITHDRAW HIS GUILTY PLEA ON THE BASIS THAT HE HAD FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL, RESULTING IN A GUILTY PLEA WHICH HAD NOT BEEN FREELY, KNOWINGLY AND VOLUNTARILY ENTERED.
POINT II
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4.
We reject these arguments and affirm. A PCR petition is
our State's analogue to the federal writ of habeas corpus. See
State v. Afanador, 151 N.J. 41, 49 (1997). We review a claim of
ineffective assistance of counsel under the two-prong test
established by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.
2d 674, 693 (1984), and subsequently adopted by our Supreme
Court in State v. Fritz, 105 N.J. 42, 58 (1987).
A defendant must first demonstrate that defense "counsel's
performance was deficient." Strickland, supra, 466 U.S. at 687,
104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, she or he must
A-2986-14T1 6
show there exists "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 694, 104 S. Ct. at 2068, 80
L. Ed. 2d at 698. "In determining a claim of ineffective
assistance of counsel in a case in which a defendant pled
guilty, 'the issue is whether it is ineffective assistance of
counsel for counsel to provide misleading, material information
that results in an uninformed plea, and whether that occurred
here.'" State v. Smullen, 437 N.J. Super. 102, 108-09 (App.
Div. 2014) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139-40
(2009)).
A court presented with a PCR petition is not obligated to
conduct an evidentiary hearing. State v. Jones, 219 N.J. 298,
311 (2014). Rule 3:22-10 confers upon the court the discretion
to conduct such a hearing only "if a defendant has presented a
prima facie case in support of PCR." Ibid. Once a prima facie
case has been established, the claims of ineffective assistance
of counsel ordinarily require consideration of "evidence that
lie[s] outside the trial record." State v. Preciose, 129 N.J.
451, 460 (1992).
Here, defendant has not presented a prima facie case of
ineffective assistance under Strickland. Any inconsistency or
misstatements about the exact date defendant sexually assaulted
A-2986-14T1 7
his then eleven-year-old stepdaughter were cleared up by the
detailed description of these events defendant provided at the
plea hearing. At the time his defense attorney negotiated this
plea agreement, defendant was facing a six-count indictment that
included two counts of first degree aggravated sexual assault.
On these two counts alone defendant had a penal exposure of
forty years in State prison with thirty-four years of parole
ineligibility under NERA. The plea agreement his trial attorney
ably negotiated reduced this penal exposure to ten years; this
is half the maximum sentence defendant could have received if he
had been convicted of only one of these two first degree crimes.
Defendant was ultimately sentenced to a term of nine years
subject to NERA.
Defendant's attacks on his trial attorney's performance
based on his failure to file a motion to suppress the statement
he gave to police interrogators are equally without merit.
Other than his own self-serving statement about police
misconduct, the record does not reveal, and defendant has not
come forward with any evidence that provides a reasonable basis
to conclude a motion to suppress his inculpatory statement would
have been successful.
Finally, defendant has not produced any competent evidence
to question the legal viability of his guilty plea. The record
A-2986-14T1 8
does not show defense counsel provided defendant with
misleading, material misinformation at the time he pled guilty.

Outcome:

Defendant has thus not presented sufficient evidence to meet the first prong under Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, and thus does not fall within the
paradigm established by the Court in Nuñez-Valdéz, supra, 200
N.J. at 139-40.

Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments:

View Case