RECORD IMPOUNDED
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APPROVAL OF THE APPELLATE DIVISION
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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-0218-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AARON D. MCMORRIS,
Defendant-Appellant.
________________________________________________
Submitted October 17, 2017 – Decided November 27, 2017
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
10-06-1037.
Joseph E. Krakora, Public Defender, attorney
for appellant (Charles H. Landesman,
Designated Counsel, on the brief).
Gurbir S. Grewal, Bergen County Prosecutor,
attorney for respondent (Annmarie Cozzi,
Senior Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Aaron D. McMorris appeals from an order entered by
the Law Division on August 11, 2016, which denied his petition for
post-conviction relief (PCR). We affirm.
I.
Defendant was charged with first-degree aggravated sexual
assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual
assault, N.J.S.A. 2C:14-2(b) (count two); and third-degree
endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count
three). On August 25, 2011, defendant pled guilty to count two,
which was amended to charge fourth-degree criminal sexual contact,
N.J.S.A. 2C:14-3(b). Defendant had been incarcerated for eighteen
months, and the State agreed to recommend a custodial sentence of
time served. Defendant agreed the judgment of conviction would
include a provision barring him from any contact with the victim.
At the plea hearing, defendant provided a factual basis for
his plea. Defendant stated that on one occasion between December
24, 2009, and January 3, 2010, he was in an apartment in Hackensack
with C.C. and three other females. Defendant said he touched C.C.'s
buttocks and did so for his own sexual gratification. Defendant
stated that at the time, C.C. was twelve years old, and he was
eighteen years old.
The judge later sentenced defendant to time served, ordered
defendant to comply with Megan's Law, N.J.S.A. 2C:7-1 to -23, and
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ordered defendant to have no contact with the victim. The judge
dismissed counts one and three of the indictment, required
defendant to pay restitution in the amount of $2475, and imposed
other fees and penalties. Defendant did not appeal from the
judgment of conviction dated October 18, 2011.
On July 29, 2015, defendant filed a pro se PCR petition. The
PCR court appointed counsel to represent defendant, and counsel
filed a brief in support of the petition. Defendant alleged he did
not provide an adequate factual basis for the plea. He also alleged
that he had been denied the effective assistance of counsel because
his attorney: failed to conduct an adequate investigation; allowed
him to enter a plea that was not knowing and voluntary; and failed
to assert an intoxication defense. He requested an evidentiary
hearing on his petition.
The PCR court considered the petition on August 11, 2016.
After hearing oral argument, the judge placed an oral decision on
the record. The judge found that Rule 3:22-4 precluded defendant
from challenging the factual basis for his plea because he could
have but did not raise that issue on direct appeal. The judge
further found that if defendant is not procedurally barred from
raising the issue, he provided an adequate factual basis for the
plea to fourth-degree criminal sexual contact. The judge also
found that defendant had not presented a prima facie case of
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ineffective assistance of counsel; therefore, he was not entitled
to an evidentiary hearing. The judge entered an order dated August
11, 2016, denying PCR. This appeal followed.
On appeal, defendant raises the following arguments: (1) the
plea should be set aside because he did not provide an adequate
factual basis for the plea; (2) he was denied the effective
assistance of counsel because his trial attorney did not conduct
an adequate investigation before he entered the plea; and (3) he
was entitled to an evidentiary hearing on the petition.
II.
Defendant first argues that he should be permitted to withdraw
his plea. He concedes that he did not file a motion in the trial
court to withdraw the plea or file a direct appeal from the
judgment of conviction entered in this matter. Defendant
nevertheless argues that this court should set aside the plea by
applying Rule 2:10-2, which states that on appeal, the court may
disregard "[a]ny error or omission" unless shown to be "of such a
nature as to have been clearly capable of producing an unjust
result." The rule further provides that the court "may, in the
interests of justice, notice plain error not brought to the
attention of the trial or appellate court." Ibid.
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We are convinced, however, that the PCR court correctly
determined that defendant's claim regarding the adequacy of his
plea is barred by Rule 3:22-4, which states:
(a) First Petition for Post-Conviction Relief.
Any ground for relief not raised in the
proceedings resulting in the conviction, or
in a post-conviction proceeding brought and
decided prior to the adoption of this rule,
or in any appeal taken in any such proceedings
is barred from assertion in a proceeding under
this rule unless the court on motion or at the
hearing finds:
(1) that the ground for relief not previously
asserted could not reasonably have been raised
in any prior proceeding; or
(2) that enforcement of the bar to preclude
claims, including one for ineffective
assistance of counsel, would result in
fundamental injustice; or
(3) that denial of relief would be contrary
to a new rule of constitutional law under
either the Constitution of the United States
or the State of New Jersey.
The rule further provides that "[a] ground could not reasonably
have been raised in a prior proceeding only if defendant shows
that the factual predicate for that ground could not have been
discovered earlier through the exercise of reasonable diligence."
Ibid.
Here, defendant has long been aware of all of the information
necessary to file a motion to withdraw the plea. Indeed, the facts
upon which such a motion could be brought are based on the record
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established when defendant entered his plea. Moreover, enforcement
of the procedural bar would not result in a fundamental injustice.
As the PCR court found, defendant provided an adequate factual
basis for his plea.
As noted, defendant pled guilty to an amended charge of
fourth-degree criminal sexual contact. Under N.J.S.A. 2C:14-3(b),
a person is guilty of this offense "if he commits an act of sexual
contact with the victim" under any of the circumstances set forth
in N.J.S.A. 2C:14-2(c)(1) to (4).1 One of those circumstances is
that "[t]he actor uses physical force or coercion, but the victim
does not sustain severe personal injury." N.J.S.A. 2C:14-2(c)(1).
We have held that in determining whether an individual has
committed the offense of criminal sexual contact, the non-
consensual touching of the victim by the actor is sufficient to
establish the use of physical force. State v. Triestman, 416 N.J.
Super. 195, 220 (App. Div. 2010) (citing State in Interest of
M.T.S., 129 N.J. 422, 443 (1992)). Therefore, the PCR court
correctly found that defendant provided an adequate factual basis
for fourth-degree criminal sexual contact, contrary to N.J.S.A.
2C:14-3(b).
1
The latter statute provides that a person is guilty of "sexual
assault if he commits an act of sexual penetration with another
person" under any of the circumstances set forth in N.J.S.A. 2C:14-
2(c)(1) to (4). Ibid.
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III.
Defendant next argues that the PCR court erred by finding he
did not present a prima facie case of ineffective assistance of
counsel. He also argues that the court should have conducted an
evidentiary hearing on his petition. Again, we disagree.
To succeed on his PCR claim of ineffective assistance of
counsel, a defendant must meet the test established by Strickland
v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed.
2d 674, 692 (1984), and adopted by our Supreme Court in State v.
Fritz, 105 N.J. 42, 58 (1987). Under Strickland, the defendant
must show that counsel's performance was deficient and, if so,
there was a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068,
80 L. Ed. 2d 698.
Where, as here, the defendant claims he was denied the
effective assistance of counsel with regard to a guilty plea, the
defendant must establish that counsel's performance was not
"within the range of competence demanded of attorneys in criminal
cases." 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)). The defendant also must show "there
is a reasonable probability that, but for counsel's errors, [the
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defendant] would not have pled guilty and would have insisted on
going to trial." Id. at 457 (quoting Hill v. Lockhart, 474 U.S.
52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).
Defendant claims his attorney was deficient because he failed
to obtain complete discovery before defendant entered his plea.
He cites an undated letter he allegedly wrote to his attorney, in
which he noted that the discovery he had reviewed did not include
the minutes of the grand jury, reports of mental and physical
evaluations, or a report on the line-up identification. According
to defendant, his attorney failed to undertake a full and complete
investigation of the matter before he entered his plea.
The PCR court noted that defendant's attorney reviewed the
discovery materials with defendant and, even if counsel has not
obtained the grand jury minutes, defendant had not shown that he
would have rejected the plea offer and proceeded to trial if
counsel had obtained the minutes. Likewise, defendant failed to
show that any of the other information he believes counsel should
have obtained would have supported his defense, or led him to
reject the plea and go to trial.
Furthermore, as we noted previously, defendant was charged
with first-degree aggravated sexual assault, N.J.S.A. 2C:14-
2(a)(1), and other charges. On the first-degree charge, defendant
faced a potential sentence of twenty-five years to life
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imprisonment, with a twenty-five-year period of parole
ineligibility. N.J.S.A. 2C:14-2(a).
Defendant's attorney negotiated a favorable plea agreement,
which allowed defendant to plead guilty to an amended charge of
fourth-degree criminal sexual contact, provided for a custodial
sentence of time served, and resulted in the dismissal of the
other charges. At the plea hearing, defendant stated that he
understood he was waiving his right to trial, his right to cross-
examine and confront witnesses, and his right to have the State
prove the charges beyond a reasonable doubt. He elected to waive
those rights and enter his plea.
Defendant has not shown that but for his attorney's allegedly
deficient investigation, he would not have pled guilty and would
have elected to proceed to trial. He also has not shown that
counsel was deficient in permitting defendant to enter his plea.
The record shows that defendant entered his plea knowingly and
voluntarily. We therefore conclude that the record supports the
PCR court's determination that defendant failed to establish a
prima facie case of ineffective assistance of counsel.
We also conclude that the PCR court correctly found that an
evidentiary hearing was not required on the petition. As noted,
defendant failed to establish a prima facie case for PCR. Moreover,
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the existing record was sufficient to resolve defendant's claims.
R. 3:22-10(b); State v. Porter, 216 N.J. 343, 354-55 (2013).
Affirmed.
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