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NOT FOR PUBLICATION WITHOUT THE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-3935-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
D.M.,1
Defendant-Appellant.
_____________________________
Submitted December 4, 2018 – Decided December 12, 2018
Before Judges Haas and Mitterhoff.
On appeal from Superior Court of New Jersey, Law
Division, Bergen County, Indictment No. 10-08-1408.
Joseph E. Krakora, Public Defender, attorney for
appellant (Anderson D. Harkov, Designated Counsel,
on the brief).
Dennis Calo, Acting Bergen County Prosecutor,
attorney for respondent (Justin M. Blasi, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
1
We refer to defendant and the child victim in this case by initials. See R. 1:38-
3(c)(9).
PER CURIAM
Defendant appeals from the April 17, 2017 Law Division order denying
his petition for post-conviction relief (PCR) without an evidentiary hearing. We
affirm.
On August 10, 2010, a Bergen County grand jury returned a four-count
indictment charging defendant with second-degree sexual assault, N.J.S.A.
2C:14-2(c)(4) (count one); two counts of fourth-degree sexual contact, N.J.S.A.
2C:14-3(b) (counts two and three); and third-degree endangering the welfare of
a child, N.J.S.A. 2C:24-4(a) (count four).
Defendant was forty-six years old at the time of these alleged offenses.
The child victim, E.A., was fourteen years old and was enrolled in special
education classes at school. Defendant has an IQ of 63, and is unable to read or
write. However, both the State's expert and his own expert agreed that defendant
was competent to stand trial on the charges.
On the first day of the trial, however, defendant pled guilty to count four,
endangering the welfare of a child. In return for his plea, the State agreed to
recommend that the judge give defendant a suspended sentence, with credit for
time served. Defendant would also be placed on Parole Supervision for Life
A-3935-16T4
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(PSL) pursuant to N.J.S.A. 2C:43-6.4, and required to comply with all Megan's
Law registration and reporting conditions.
At the plea hearing, defendant was represented by his assigned counsel,
and he told Judge James Guida that he was extremely satisfied with her
assistance. In response to questions posed by his attorney and Judge Guida,
defendant gave a factual basis for the offense of endangering the welfare of the
child. Specifically, defendant admitted that E.A. came into his apartment one
day and took one of defendant's Playboy magazines, and started looking at it.
Defendant testified he knew that a child should not be looking at a magazine
that had photographs of people that were not wearing any clothing. Defendant
testified he tried to stop the child from looking at the magazine, but then decided
there was nothing he could do about it. He admitted he "was wrong letting him
look at it." At the conclusion of the questioning, Judge Guida found that
defendant's plea had an adequate factual basis.
Prior to the plea hearing, defendant's attorney read each page of the plea
form to defendant, including the portion of the form detailing all of the
conditions of PSL. Judge Guida also separately explained many of these same
requirements to defendant at the hearing during a lengthy voir dire of defendant.
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When he was arrested, defendant was carrying a keychain that had his
name on one side and, on the reverse side, the words, "Pedo for hire/Child
birthdays/Bar-Mitzvahs/Free Kneepads." Prior to trial, the court granted the
State's motion to admit the keychain as other crimes evidence under N.J.R.E.
404(b). Defendant's attorney filed an interlocutory motion for leave to appeal
this decision, which we subsequently denied.
The plea form, which defendant's attorney read to defendant, stated that
defendant was waiving his right to appeal any of the trial court's pre-trial orders.
At the plea hearing, Judge Guida also confirmed with defendant's attorney that
this was the case, and she again stated that she had explained the waiver to
defendant. Thus, the judge accepted defendant's guilty plea to count four of the
indictment.
In accordance with the plea, Judge Guida sentenced defendant to a
suspended three-year prison term, together with PSL, and mandatory Megan's
Law reporting requirements. Defendant did not file a direct appeal.
Defendant thereafter filed a timely petition for PCR. Among other things,
defendant argued that his attorney provided ineffective assistance because she
did not: (1) ensure that an adequate factual basis was established for his plea to
the endangering the welfare of a child charge; (2) advise him that he would be
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subject to PSL; and (3) advise him that he was waiving his right to appeal from
the Rule 404(b) ruling.
In a comprehensive twenty-nine page written decision, Judge Guida
considered each of these contentions and denied defendant's petition. The judge
concluded that defendant failed to satisfy the two-prong test of Strickland v.
Washington, 466 U.S. 668, 687 (1984), which requires a showing that trial
counsel's performance was deficient and that, but for the deficient performance,
the result would have been different.
The judge found that defendant provided an adequate factual basis for his
guilty plea to endangering the welfare of a child under N.J.S.A. 2C:24-4(a)(1),
which states that a "person who . . . engages in sexual conduct which would
impair or debauch the morals of [a] child is guilty of a crime . . . of the third
degree." Here, the judge observed that defendant admitted at the plea hearing
that
on one occasion, E.A. came to his apartment where a
Playboy magazine was out in the open, E.A. began to
look at the magazine, [defendant] knew E.A. should not
look at the magazine, and [defendant] tried to stop E.A.
from looking at the magazine but eventually gave up
and allowed E.A. to continue looking at the magazine.
It is well settled that the "sexual conduct" prohibited by N.J.S.A. 2C:24-4(a)(1)
includes showing nude explicit photographs to children. State v. White, 105
A-3935-16T4
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N.J. Super. 234, 236-37 (App. Div. 1969). Accordingly, Judge Guida found that
defendant's admissions clearly established the factual basis for his plea to
endangering the welfare of a child.
The judge further found that the record failed to support defendant's claim
that he was not made aware that he would be placed on PSL or that he would
not be able to appeal the pre-trial Rule 404(b) ruling. In his thorough decision,
the judge summarized the portions of the plea hearing transcript that
demonstrated that defendant's attorney read the entire plea form to defendant,
and that the judge also addressed both matters prior to accepting defendant's
plea.
Finally, Judge Guida determined that an evidentiary hearing was not
required because defendant failed to present a prima facie case of ineffective
assistance of counsel. This appeal followed.
On appeal, defendant raises the following contentions:
POINT ONE
THE FAILURE OF TRIAL COUNSEL, TO ASSURE
THERE WAS A FACTUAL BASIS FOR THE CRIME
DEFENDANT WAS PLEADING GUILTY TO,
DESPITE THE FACT COUNSEL HERSELF
ATTEMPTED TO ELICIT THE FACTUAL BASIS,
DEPRIVED DEFENDANT OF HIS
CONSTITUTIONAL RIGHT TO THE EFFECTIVE
ASSISTANCE OF COUNSEL.
A-3935-16T4
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POINT TWO
THE FAILURE OF TRIAL COUNSEL TO ADVISE
DEFENDANT THAT HIS GUILTY PLEA WOULD
REQUIRE HIM TO WAIVE HIS RIGHT TO APPEAL
THE GRANTING OF THE STATE'S MOTION TO
ADMIT N.J.R.E. [404(B)] EVIDENCE AND THAT
HIS CONVICTION WOULD REQUIRE HE BE
SENTENCED TO [PSL], DEPRIVED DEFENDANT
OF HIS CONSTITUTIONAL RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL.
POINT THREE
THE PCR COURT ERRED WHEN IT FAILED TO
GRANT DEFENDANT'S REQUEST FOR AN
EVIDENTIARY HEARING.
When petitioning for PCR, the defendant must establish, by a
preponderance of the credible evidence, that he or she is entitled to the requested
relief. State v. Nash, 212 N.J. 518, 541 (2013); State v. Preciose, 129 N.J. 451,
459 (1992). To sustain that burden, the defendant must allege and articulate
specific facts that "provide the court with an adequate basis on which to rest its
decision." State v. Mitchell, 126 N.J. 565, 579 (1992).
The mere raising of a claim for PCR does not entitle the defendant to an
evidentiary hearing and the defendant "must do more than make bald assertions
that he [or she] was denied the effective assistance of counsel." State v.
Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). Rather, trial courts
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should grant evidentiary hearings and make a determination on the merits only
if the defendant has presented a prima facie claim of ineffective assistance.
Preciose, 129 N.J. at 462.
There is a strong presumption that counsel "rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment." Strickland, 466 U.S. at 690. Further, because prejudice is not
presumed, State v. Fritz, 105 N.J. 42, 52 (1987), the defendant must demonstrate
"how specific errors of counsel undermined the reliability" of the proceeding.
U.S. v. Cronic, 466 U.S. 648, 659 n.26 (1984).
Having considered defendant's contentions in light of the record and the
applicable law, we affirm the denial of defendant's PCR petition substantially
for the reasons detailed at length in Judge Guida's thoughtful written opinion.
The record fully supports the judge's determination that defendant provided an
adequate factual basis for his plea, and that his attorney and the court fully
explained to defendant that he was subject to PSL, and would be waiving his
right to appeal the Rule 404(b) ruling. Because defendant failed to establish a
prima facie case of ineffective assistance, an evidentiary hearing was not
required. Preciose, 129 N.J. at 462.
Affirmed.
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