STATE OF NEW JERSEY VS. P.M.B.(10-04-0183, SALEM 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NOT FOR PUBLICATION WITHOUT THE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-0273-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

P.M.B.,

Defendant-Appellant.
______________________________

Submitted August 15, 2017 – Decided September 27, 2017

Before Judges Messano and Sumners.

On appeal from Superior Court of New Jersey,
Law Division, Salem County, Indictment No. 10-
04-0183.

Joseph E. Krakora, Public Defender, attorney
for appellant (Peter B. Meadow, Designated
Counsel, on the brief).

John T. Lenahan, Salem County Prosecutor,
attorney for respondent (Derrick Diaz,
Assistant Prosecutor, of counsel and on the
brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant P.M.B. pled guilty to first-degree aggravated

sexual assault, N.J.S.A. 2C:14-2(a), admitting to anally
penetrating his stepson who was under the age of thirteen at the

time. The judge sentenced defendant to a seven-year term of

imprisonment, subject to an 85% period of parole ineligibility

under the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant

filed a pro se petition for post-conviction relief (PCR), alleging

numerous trial errors and the ineffective assistance of counsel

(IAC). The judge, who was the same judge that accepted defendant's

guilty plea and imposed sentence, appointed PCR counsel.1

During oral argument on the petition, defendant contended

that trial counsel failed to adequately review discovery with him

and "pushed him" into pleading guilty. Defendant also argued that

the plea form contained trial counsel's representation that he

would ask the judge to impose a lesser period of incarceration.

However, at sentencing, counsel withdrew any request for a lesser

sentence, explaining defendant was found to have compulsive sexual

behaviors, the Adult Diagnostic and Testing Center at Avenel

(Avenel) recommended he receive treatment, and defendant

affirmatively stated that he wished to avail himself to the

treatment. Lastly, defendant argued that trial counsel failed to

1
Defendant's direct appeal was limited to his sentence, and we
affirmed but vacated the restitution award. The PCR judge's
written opinion indicates the restitution award was vacated on
remand.

2 A-0273-15T2
provide adequate advice regarding defendant's ability to have

parenting time with his biological daughter after completing his

sentence. PCR counsel referenced a letter to defendant, written

by trial counsel approximately five months after sentencing.2

The judge ordered a plenary hearing on the PCR petition.

Trial counsel and defendant both testified. In his written opinion

following the evidentiary hearing, the judge concluded defense

counsel was more credible than defendant was. Based upon counsel's

testimony, the plea forms and the colloquy at the time of

defendant's guilty plea, the judge found defendant was fully aware

of the consequences of his guilty plea, including limits on

defendant's "contact with children." The judge also found that

trial counsel adequately met with defendant and reviewed the

discovery in the case and provided correct information regarding

defendant's sentence exposure. Furthermore, the judge rejected

defendant's assertion that his wife had a vendetta against him and

2
The letter is in the State's confidential appendix. Addressed
to defendant, it provides in full:

All the information you're looking for should
be in the Pre-Sentence Report I previously
forwarded to you. Obviously there is no
contact with your victim. There was no
prohibition on future visits with your other
children.

3 A-0273-15T2
coerced the victim to "fabricate the allegations" against

defendant. The judge accepted counsel's determination that the

State had an "extremely strong case."

Lastly, the judge concluded that even if trial counsel should

have advocated for a lesser period of incarceration, defendant

suffered no prejudice. The judge noted that defendant was

sentenced as a second-degree offender at the "midpoint of the

second degree range." Implicitly, the judge concluded he would

have imposed the same sentence even if counsel had asked for a

lesser period of incarceration.

The judge entered an order denying the petition, and this

appeal followed.

Defendant argues the judge erred in dismissing the petition

because he established trial counsel provided ineffective

assistance in that counsel failed to properly investigate the

case, gave him incorrect advice regarding the consequences of his

guilty plea and failed to argue for a lesser sentence. As a

result, defendant did not knowingly and voluntarily enter his

guilty plea.

The standards that guide our review are well-known. To

establish an IAC claim, a defendant must satisfy the two-prong

test formulated in Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted

4 A-0273-15T2
by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987).

First, he must demonstrate "counsel made errors so serious that

counsel was not functioning as the 'counsel' guaranteed . . . by

the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466

U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).

To satisfy prong one, [a defendant] ha[s] to
"overcome a 'strong presumption' that counsel
exercised 'reasonable professional judgment'
and 'sound trial strategy' in fulfilling his
responsibilities." "[I]f counsel makes a
thorough investigation of the law and facts
and considers all likely options, counsel's
trial strategy is 'virtually
unchallengeable.'" Mere dissatisfaction with
a "'counsel's exercise of judgment'" is
insufficient to warrant overturning a
conviction.

[State v. Nash, 212 N.J. 518, 542 (2013)
(third alteration in original) (citations
omitted).]

Second, a defendant must prove that he suffered prejudice due

to counsel's deficient performance. Strickland, supra, 466 U.S.

at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must

show by a "reasonable probability" that the deficient performance

affected the outcome. Fritz, supra, 105 N.J. at 58. "'A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.'" State v. Pierre, 223 N.J. 560, 583

(2015) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at

2068, 80 L. Ed. 2d at 698). "If [a] defendant establishes one

5 A-0273-15T2
prong of the Strickland-Fritz standard, but not the other, his

claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280

(2012).

The Strickland/Fritz standard applies to IAC claims regarding

the plea bargaining process. State v. Gaitan, 209 N.J. 339, 350-

51 (2012). "In the specific context of showing prejudice after

having entered a guilty plea, a defendant must prove 'that there

is a reasonable probability that, but for counsel's errors, [he

or she] would not have pled guilty and would have insisted on

going to trial.'" Id. at 351 (alteration in original) (emphasis

added) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009).

Regarding inadequate investigation, trial counsel admitted

at the PCR hearing that he did not interview the victim or his

mother. However, he reviewed the evidence with defendant,

including discussing apparent "tapes" of their statements to law

enforcement. Counsel also testified that defendant provided him

with no names of potential witnesses. Based on the testimony at

the PCR hearing and the entire record, the judge concluded trial

counsel's performance in this regard was not deficient.

"In reviewing a PCR court's factual findings based on live

testimony, an appellate court applies a deferential standard; it

'will uphold the PCR court's findings that are supported by

sufficient credible evidence in the record.'" Pierre, supra, 223

6 A-0273-15T2
N.J. at 576 (quoting Nash, supra, 212 N.J. at 540). We find no

reason to disturb the judge's findings and conclusions in this

regard.

At sentencing, trial counsel told the judge he was withdrawing

any application for a lesser sentence because defendant was not

opposed to the maximum amount of treatment and he would not be

admitted to Avenel unless the custodial portion of the sentence

was at least seven years. Counsel was not questioned about this

during the evidentiary hearing.

As defendant correctly points out, that interpretation of

N.J.S.A. 2C:47-3(h) is incorrect, and the State concedes this

point. Only sentences of seven years or less permit a defendant

to serve the term of incarceration at Avenel. N.J.S.A. 2C:47-

3(h)(1).

However, the judge explained that the sentence actually

imposed reflected a careful weighing of the aggravating and

mitigating sentencing factors. He noted that defendant was being

sentenced for a crime one degree lower than the crime to which he

pled guilty. As a result, the judge implicitly found defendant

suffered no prejudice by counsel's lapse in this regard. Based

on the judge's credibility determinations, there is no credible

evidence in the record supporting a conclusion that defendant

would not have pled guilty but for counsel's erroneous statement

7 A-0273-15T2
regarding an Avenel sentence. As a result, we reject this as a

basis to reverse.

At the PCR hearing, trial counsel explained that defendant's

conviction would not necessarily foreclose parenting time with his

daughter. Counsel displayed familiarity with N.J.S.A. 9:2-4.1(a)

("[A] person convicted of sexual assault . . . shall not be

awarded the custody of or visitation rights to any minor

child . . . except upon a showing by clear and convincing evidence

that it is in the best interest of the child for custody or

visitation rights to be awarded."). The post-sentencing letter

to defendant does not state anything that is contrary to the

statute.

Moreover, at sentencing, defendant was served with a "Sex

Offense Restraining Order," pursuant to N.J.S.A. 2C:14-12. It

clearly advised defendant that he was restrained from contacting

the victim and barred from the residence of the victim. The

victim's mother is also the mother of defendant's biological

daughter, who shares the same home with the victim. Defendant

cannot claim he was ignorant of the consequences of his guilty

plea in this regard.

In a pro se supplemental brief, defendant argues that PCR

counsel failed to raise, and the judge failed to address, a number

of issues asserted in defendant's pro se brief in support of the

8 A-0273-15T2
petition. Most of these claims involve alleged inadequacies in

the investigation, the indictment and grand jury process, and a

search warrant. Defendant also alleges a lack of corroborative

forensic evidence and allegedly contradictory statements made by

the victim.

The PCR judge did not specifically address these claims,

except to reject defendant's allegation that his wife had a

"vendetta" against him and coerced the victim into fabricating the

story of sexual abuse. We might otherwise remand the matter for

the PCR court to specifically address the issues raised in the pro

se submission. See State v. Webster, 187 N.J. 254, 258 (2006)

(reversing and remanding because PCR counsel did not reference the

arguments raised in defendant's pro se petition and the judge did

not comment on them in any way).

However, it is quite clear that defendant could have asserted

these claims on direct appeal, but did not, and therefore they are

procedurally barred on PCR review. R. 3:22-4. More importantly,

having found no reason to set aside defendant's guilty plea based

upon the ineffective assistance of counsel, and having rejected

any other reason to conclude the guilty plea was not voluntarily

and knowingly entered, these arguments about alleged infirmities

and the adequacy of the evidence are deemed waived. See State v.

Davila, 443 N.J. Super. 577, 585 (App. Div. 2016) (quoting State

9 A-0273-15T2
v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988) ("Generally,

a guilty plea constitutes a waiver of all issues which were or

could have been addressed by the trial judge before the guilty

plea.").

Affirmed.

10 A-0273-15T2