NOT FOR PUBLICATION WITHOUT THE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-1351-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANIEL J. SMITH,
Defendant-Appellant.
___________________________
Submitted March 1, 2017 – Decided March 17, 2017
Before Judges Simonelli and Carroll.
On appeal from the Superior Court of New
Jersey, Law Division, Burlington County,
Indictment No. 11-09-1145.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alison Perrone, Designated
Counsel, on the brief).
Robert D. Bernardi, Burlington County
Prosecutor, attorney for respondent (Jennifer
Paszkiewicz, Assistant Prosecutor, of
counsel; Boris Moczula, on the brief).
PER CURIAM
Defendant Daniel Smith appeals from the August 28, 2014 Law
Division order, which denied his petition for post-conviction
relief (PCR) without an evidentiary hearing. We affirm.
We derive the following facts from the record. A grand jury
indicted defendant for second-degree sexual assault, N.J.S.A.
2C:14-2(c)(4) (count one); second-degree sexual assault, N.J.S.A.
2C:14-2(c)(1) (count two); third-degree endangering the welfare
of a child, N.J.S.A. 2C:24-4(a) (count three); second-degree
attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-
2(c)(4) (count four); third-degree attempted endangering the
welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a) (count
five). The charges stemmed from defendant's sexual assault of a
fourteen-year-old minor male, T.M., who defendant had perform
fellatio on him.
On November 27, 2012, defendant pled guilty to count one in
exchange for the State's agreement to recommend a seven-year term
of imprisonment with no period of parole ineligibility and dismiss
the remaining charges. At the plea hearing, defendant acknowledged
that he faced up to ten years in prison if convicted of the
offense. Defendant also acknowledged that Megan's Law applied to
his conviction; he would be required to register as a sex offender;
he would be subject to parole supervision for life; and he could
be subject to civil commitment at the conclusion of his sentence
if deemed to be a sexual offender who had not rehabilitated.
At sentencing on March 20, 2013, the trial judge found three
aggravating factors: N.J.S.A. 2C:44-1(a)(3),"[t]he risk that the
2 A-1351-14T2
defendant will commit another offense;" N.J.S.A. 2C:44-1(a)(6),
"[t]he extent of the defendant's prior criminal record and the
seriousness of the offenses of which he has been convicted;" and
N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring the defendant
and others from violating the law." The judge found one mitigating
factor: N.J.S.A. 2C:44-1(b)(11), "[t]he imprisonment of the
defendant would entail excessive hardship to himself or his
dependents[.]" The judge sentenced defendant in accordance with
the plea agreement.
Defendant did not appeal. Instead, on September 23, 2013,
he filed a pro se PCR petition, arguing, in part, that defense
counsel rendered ineffective assistance at sentencing by failing
to investigate and request the following mitigating factors:
(2) "[t]he defendant did not contemplate that
his conduct would cause or threaten serious
harm;"
(4) "[t]here were substantial grounds tending
to excuse or justify the defendant's conduct,
though failing to establish a defense;"
(5) "[t]he victim of the defendant's conduct
induced or facilitated its commission;"
(7) "[t]he defendant has no history of prior
delinquency or criminal activity or has led a
law-abiding life for a substantial period of
time before the commission of the present
offense;"
(8) "[t]he defendant's conduct was the result
of circumstances unlikely to recur;" and
3 A-1351-14T2
(9), "[t]he character and attitude of the
defendant indicate that he is unlikely to
commit another offense[.]"1
[N.J.S.A. 2C:44-1(b)(2), (4), (5), (7)-(9).]
In an August 28, 2014 written opinion, the PCR judge denied
the petition. The judge found the petition was procedurally barred
by Rule 3:22-4(a), as defendant should have challenged his sentence
on direct appeal. Addressing the merits, the judge found that
none of the mitigating factors applied for the following reasons:
N.J.S.A. 2C:44-1(b)(2): the fact that T.M. was
not forced to perform a sexual act was
irrelevant, and defendant knew T.M. was
underage before the sexual encounter began;
N.J.S.A. 2C:44-1(b)(4) and (5): although T.M.
posted an ad on Craig's list posing as an
eighteen-year-old male, defendant had
reservations because he referred to T.M. as a
"kid" and continued asking T.M. his age.
Defendant's conduct was not excused even if
he was misled as to T.M.'s real age. T.M. did
not induce the crime's commissions. Defendant
knew T.M. was underage. Defendant's conduct
could not be induced by T.M. because the law
is clear that T.M. could not have consented,
as a matter of law, to defendant's actions;
N.J.S.A. 2C:44-1(b)(7): defendant has a
history of contact with the criminal justice
system and was released from federal prison
on federal charges less than six months prior
to committing the present offense. Defendant
is not a first-time offender or a person who
has not sustained a conviction in a
1
Defendant also argued that counsel failed to request mitigating
factor N.J.S.A. 2C:44-1(b)(11), but the court found that
mitigating factor.
4 A-1351-14T2
substantial amount of time prior to the
present offense. Defendant has 2001 and 2003
disorderly persons convictions and was
convicted in federal court in 2009;
N.J.S.A. 2C:44-1(b)(8): after the first sexual
encounter with T.M., defendant reached out to
T.M. for a second meeting. Absent his arrest,
that second meeting would likely have
occurred; and
N.J.S.A. 2C:44-1(b)(9): there was no evidence
of defendant's character and attitude to show
he was unlikely to commit another offense.
Although defendant contended that he would be
able to secure employment upon his release
from prison, this alone would not have
supported a finding of this mitigating factor.
Defendant had not taken responsibility for his
actions. During his interview with the
police, he changed his story after originally
maintaining that he rejected advances by T.M.
On appeal, defendant raises the following contentions:
POINT I
POST-CONVICTION RELIEF IS NOT PROCEDURALLY
BARRED BY RULE 3:22-4.
POINT II
DEFENDANT IS ENTITLED TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT HIS ATTORNEY
RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL AT
SENTENCING.
The mere raising of a claim for PCR does not entitle the
defendant to an evidentiary hearing. State v. Cummings, 321 N.J.
Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Rather, trial courts should grant evidentiary hearings and make a
5 A-1351-14T2
determination on the merits only if the defendant has presented a
prima facie claim of ineffective assistance of counsel, material
issues of disputed fact lie outside the record, and resolution of
the issues necessitates a hearing. R. 3:22-10(b); State v. Porter,
216 N.J. 343, 355 (2013); State v. Preciose, 129 N.J. 451, 462-63
(1992). To establish a prima facie claim of ineffective assistance
of counsel, the defendant
must satisfy two prongs. First, he must
demonstrate that counsel made errors so
serious that counsel was not functioning as
the counsel guaranteed the defendant by the
Sixth Amendment. An attorney's representation
is deficient when it [falls] below an
objective standard of reasonableness.
Second, a defendant must show that the
deficient performance prejudiced the defense.
A defendant will be prejudiced when counsel's
errors are sufficiently serious to deny him a
fair trial. The prejudice standard is met if
there is a reasonable probability that, but
for counsel's unprofessional errors, the
result of the proceeding would have been
different. A reasonable probability simply
means a probability sufficient to undermine
confidence in the outcome of the proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014)
(citations omitted).]
With respect to a guilty plea, our Supreme Court has explained
that
[t]o set aside a guilty plea based on
ineffective assistance of counsel, a defendant
must show that (i) counsel's assistance was
not within the range of competence demanded
6 A-1351-14T2
of attorneys in criminal cases; and (ii) that
there is a reasonable probability that, but
for counsel's errors, [the defendant] would
not have pled guilty and would have insisted
on going to trial.
[State v. Nuñez-Valdéz, 200 N.J. 129, 139
(2009) (alterations in original) (quoting
State v. DiFrisco, 137 N.J. 434, 457 (1994)).]
We agree with defendant that his claim of ineffective
assistance of counsel at sentencing was not procedurally barred
by Rule 3:22-4. We generally adhere to the practice of deferring
claims of ineffective assistance of counsel to post-conviction
relief proceedings. State v. Castagna, 187 N.J. 293, 316 (2006).
Nevertheless, we have considered defendant's contention in Point
II in light of the record and applicable legal principles and
conclude it is without sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(2). We affirm substantially for
the reasons expressed by the PCR judge in her well-reasoned written
opinion. Even if counsel had requested the mitigating factors
defendant stated in his PCR petition, none of them are supported
by the record. State v. Bieniek, 200 N.J. 601, 608 (2010); State
v. Dalziel, 182 N.J. 494, 505 (2005); State v. Roth, 95 N.J. 334,
356-64 (1984).
Affirmed.
7 A-1351-14T2
STATE OF NEW JERSEY VS. DANIEL J. SMITH (11-09-1145, BURLINGTON COUNTY AND STATEWIDE)
Combined Opinion