STATE OF NEW JERSEY VS. M.J.A.-B. (12-06-0716, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2020 )

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NOT FOR PUBLICATION WITHOUT THE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-3153-18T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
M.J.A.-B.,
Defendant-Appellant.
__________________________
Submitted May 18, 2020 – Decided June 8, 2020
Before Judges Geiger and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 12-06-0716.
Joseph E. Krakora, Public Defender, attorney for
appellant (Kristofher Ray Dayawoh Beralo, Designated
Counsel, on the brief).
Fredric M. Knapp, Morris County Prosecutor, attorney
for respondent (Tiffany M. Russo, Assistant
Prosecutor, on the brief).
PER CURIAM
Defendant M.J.A.-B.1 appeals from a January 9, 2019 Law Division order
denying his petition for post-conviction relief (PCR) without an evidentiary
hearing. We affirm.
I.
In June 2012, a Morris County Grand Jury returned an indictment charging
defendant with twenty counts of first-degree aggravated sexual assault; seven
counts of first-degree sexual assault; three counts of second-degree sexual
assault; and five counts of second-degree endangering the welfare of a child.
The charges alleged defendant repeatedly sexually assaulted his two adolescent
daughters over the course of nine years.
In April 2013, defendant pleaded guilty to one count of first-degree
aggravated sexual assault and one count of second-degree sexual assault in
exchange for a sentencing recommendation of an aggregate consecutive prison
term of fifteen to twenty years and dismissal of the remaining charges.
At the plea hearing, defendant provided a detailed factual basis for his
plea. He admitted that on several occasions between August 4, 1999 and August
1
We refer to the defendant and the victims by initials to protect the victims'
privacy. R. 1:38-3(c)(9).
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2, 2002, he sexually assaulted his daughter, K.A., 2 who was then less than
thirteen years old. Defendant also admitted that on several occasions between
November 15, 2004 and November 14, 2008, he sexually penetrated his other
daughter, J.A., who was then between the ages of thirteen and sixteen.
The plea judge asked defendant, "[d]id you commit the offenses to which
you are pleading guilty," to which he responded, "[y]es." When asked if he
understood "what the charges mean," defendant responded, "[y]es." Defendant
also acknowledged that he was waiving his "right to have a jury trial," "remain
silent," and "confront witnesses against" him. Finally, defendant affirmed that
he had sufficient time preparing with his attorney; she answered all of his
questions to his satisfaction; and he was "[v]ery satisfied" with her services.
The plea judge found defendant entered the pleas freely and voluntarily
without threats, outside promises or inducements. He further found defendant
provided a factual basis for the pleas and understood "the nature of the charges
[and] the consequence of the plea."
On August 22, 2013, defendant was sentenced in accordance with the plea
agreement to a thirteen-year prison term for the first-degree sexual assault,
2
We refer to the defendant and the victims by initials to protect the victims'
privacy. R. 1:38-3(c)(9).
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3
subject to the parole ineligibility and mandatory parole supervision requirements
of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, parole supervision
for life, N.J.S.A. 2C:43-6.4, and compliance with Megan's Law, N.J.S.A. 2C:7-
2. Defendant was sentenced to a consecutive seven-year NERA term for the
second-degree sexual assault, subject to community supervision for life, 3
N.J.S.A. 2C:43-6.4, and Megan's Law. Defendant was also ordered to pay
appropriate fines and assessments.
In reaching this decision, the sentencing judge found aggravating factors
three (risk of re-offense) and nine (need for deterrence). N.J.S.A. 2C:44-1(a)(3),
(9). He also found mitigating factor seven (no history of prior delinquency or
criminal activity or has led a law-abiding life for a substantial period) but "put
little weight on it." N.J.S.A. 2C:44-1(b)(7). The judge determined the
aggravating factors "substantially preponderate over the mitigating factor."
Regarding consecutive sentencing, the judge concluded this "is certainly
not a case where it would be appropriate to run [defendant's sentences]
concurrent." He noted "there were two separate victims" and each "suffered
3
Defendant was sentenced to community supervision for life for his crimes
against K.A. because they occurred prior to the effective date of a 2003
amendment to N.J.S.A. 2C:43-6.4 that replaced community supervision for life
with parole supervision for life. State v. Perez, 220 N.J. 423, 429, 437 (2015)
(citing L. 2003, c. 267, §§ 1, 2 (eff. Jan. 14, 2004)).
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significant injuries at the hand of the defendant. Moreover, as admitted by
[defendant], this was not one act of abuse, but rather an abuse that took place
over a number of years, and on repeated occasions."
Defendant appealed his sentence before an Excessive Sentence Oral
Argument calendar (ESOA) pursuant to Rule 2:9-11. Appellate counsel argued
that the sentencing court should have considered mitigating factor four, claiming
there were substantial grounds tending to excuse defendant's conduct. He also
contended defendant's crimes were the product of a sexual compulsion that he
was unable to control and asserted that the sentencing judge erred by giving
mitigating factor seven minimal weight even though defendant had no prior
record. Appellate counsel advocated that the aggregate sentence should have
been fifteen years if the mitigating factors were properly considered and
weighted.
Appellate counsel further argued that the sentences should have run
concurrently rather than consecutively because sexual compulsion drove
defendant to commit the offenses; the crimes were committed during the same
approximate time period; and each crime had the same objective. We affirmed
the sentence, finding it was "not manifestly excessive," "unduly punitive," nor
"an abuse of discretion."
A-3153-18T3
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On June 6, 2018, defendant filed a pro se petition for PCR and later
supplemented it with a certification, all of which were incorporated into his
appointed PCR counsel's brief. Defendant claimed trial counsel was ineffective
because she: (1) failed to effectively argue against the illegal aspects of his
sentence; (2) did not provide him with full discovery; (3) visited with him only
four times; (4) did not properly investigate his case; and (5) advised him that he
would "likely get a [fifteen-year] term or a concurrent sentence." Defendant
claimed appellate counsel was ineffective because he "did not address the
ineffective claims and violations of [defendant's] rights at the trial level" and
"failed to effectively argue against the illegal aspects of [defendant's] sentence."
Judge Thomas J. Critchley, Jr. presided over the PCR proceeding.
Following oral argument, he issued an oral decision and order denying PCR
without an evidentiary hearing. The judge carefully reviewed the plea
agreement, plea hearing, and defendant's certification. He found no evidence
that trial or appellate counsel's "performance was deficient in any objective
way." The judge rejected defendant's claims that counsel failed to properly
investigate the case or review discovery. The judge concluded the evidence
against defendant was substantial and that additional investigation would not
have changed the outcome of the case.
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The judge found defendant's testimony during the plea hearing—that he
was satisfied with trial counsel's efforts—to be credible and noted "defendant
actually complimented her for her performance." The judge also noted that even
if it were assumed that counsel's performance was in some way ineffective, there
was no evidence in the record that, but for counsel's errors, the result of the
proceeding would have been different.
Regarding defendant's consecutive sentences, Judge Critchley found that
the sentencing court "fashioned a sentence within the allowable range of the Plea
Agreement." He noted that defendant's crimes against separate victims
supported imposition of consecutive sentencing, as did the number of incidents,
which occurred over a period of years. The judge concluded that there was no
factual or legal support for the argument that defendant's sentence was
"internally inconsistent."
This appeal followed. Defendant raises the following points for our
consideration:
POINT ONE
THE DEFENDANT'S CLAIMS ARE NOT BARRED
BY THE PROVISIONS OF [RULE] 3:22 AS THEY
ASSERT CONSTITUTIONAL ISSUES ARISING
UNDER THE STATE AND FEDERAL
CONSTITUTION.
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POINT TWO
THE COURT ERRED IN NOT ALLOWING THE
DEFENDANT AN EVIDENTIARY HEARING OR
GRANTING HIS APPLICATION FOR POST-
CONVICTION RELIEF.
POINT THREE
THE COURT'S RULING DENYING POST-
CONVICTION RELIEF SHOULD BE REVERSED
BECAUSE THE DEFENDANT DID NOT RECEIVE
EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. Trial Counsel Was Ineffective Due to Her
Failure to Investigate.
B. Trial Counsel Failed to Consult with the
Defendant in a Meaningful Manner.
POINT FOUR
THE COURT'S RULING DENYING POST-
CONVICTION RELIEF VIOLATED THE
DEFENDANT'S RIGHT TO EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL
GUARANTEED BY THE SIXTH AMENDMENT TO
THE UNITED STATES CONSTITUTION AND
ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY
CONSTITUTION.
II.
We review de novo the PCR court's factual findings made without an
evidentiary hearing. State v. Harris, 181 N.J. 391, 421 (2004). We also owe no
deference to the trial court's conclusions of law. Ibid. Applying this standard
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of review, we find no merit in defendant's arguments and affirm substantially
for the cogent reasons expressed by Judge Critchley in his comprehensive
January 9, 2019 oral decision. We add the following comments.
We apply the familiar two-pronged Strickland standard to determine
whether defendant has shown that (1) his counsel's performance was so deficient
that it "fell below an objective standard of reasonableness," and (2) there was "a
reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Strickland v. Washington, 466 U.S.
668, 688, 694 (1984); accord State v. Fritz, 105 N.J. 42, 49-50 (1987) (adopting
the Strickland standard in evaluating ineffective assistance of counsel claims).
When a guilty plea is involved, a defendant must satisfy two criteria to set
it aside due to ineffective assistance of counsel. State v. Nuñez-Valdéz, 200
N.J. 129, 139 (2009). The defendant must demonstrate that "(i) counsel's
assistance was not 'within the range of competence demanded 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.'" Ibid. (alteration in original) (quoting State v.
DiFrisco, 137 N.J. 434, 457 (1994)); accord Hill v. Lockhart, 474 U.S. 52, 59
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(1985). "A reasonable probability is a probability sufficient to undermine the
confidence in the outcome." Strickland, 466 U.S. at 694.
Defendant bears the burden to establish a prima facie case for PCR. State
v. Gaitan, 209 N.J. 339, 350 (2012). We consider defendant's "contentions
indulgently and view the facts asserted . . . in the light most favorable to him."
State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). However, we
require a petitioner to state "with specificity the facts upon which th e claim for
relief is based." R. 3:22-8. "[A] petitioner must do more than make bald
assertions that he was denied the effective assistance of counsel. He must allege
facts sufficient to demonstrate counsel's alleged substandard performance."
Cummings, 321 N.J. Super. at 170.
Judge Critchley's findings are fully supported by the record and his
conclusions are consistent with applicable legal principles. Trial counsel
informed defendant that she was not promising him that he would receive less
than a twenty-year prison term. Defendant was then informed at the plea hearing
that his guilty plea would result in consecutive sentences and up to twenty years
imprisonment subject to parole ineligibility under NERA. The plea judge made
clear that "there is no guarantee that you will get less" than a twenty-year
sentence. Despite that knowledge, defendant stated under oath that he
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understood, wanted to proceed, and was sentenced in accordance with the plea
agreement.
We are unpersuaded by defendant's remaining ineffective assistance of
trial counsel claims. Defendant was facing thirty-five counts charging numerous
first and second-degree crimes. The evidence against him was substantial. The
record amply supports Judge Critchley's conclusion that even if trial counsel's
performance was somehow deficient, defendant failed to satisfy the second
prong of Strickland.
Defendant's claim of ineffective assistance of appellate counsel is also
without merit. Defendant's sentence on each count fell within the ranges
permitted under the Criminal Code and were not illegal. Only an illegal sentence
that exceeds the maximum penalty allowed by the Code or that is not in
accordance with law is cognizable on PCR. Pressler & Verniero, Current N.J.
Court Rules, cmt. 3 on R. 3:22-2 (2020) (citing State v. Acevedo, 205 N.J. 40,
45, 47 (2011)); see also State v. Flores, 228 N.J. Super. 586, 595 (App. Div.
1988) (claim of excessive sentencing not cognizable in PCR proceeding).
Moreover, as we have noted, appellate counsel raised several sentencing issues
on direct appeal, which we considered but still affirmed. See R. 3:22-5 ("A prior
adjudication upon the merits of any ground for relief is conclusive . . . .") .
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As to defendant's argument that appellate counsel should have raised trial
counsel's alleged ineffectiveness, those claims "are more appropriately raised in
collateral, post-conviction relief proceedings" rather than on direct appeal,
"'because such claims involve allegations and evidence that lie outside the trial
record.'" State v. Johnson, 365 N.J. Super. 27, 34 (App. Div. 2003) (quoting
State v. Preciose, 129 N.J. 451, 460 (1992)). Such was the case here, making it
an improvident argument for appellate counsel to raise on direct appeal.
Defendant claims the PCR judge erred by denying his petition without an
evidentiary hearing. We disagree. A defendant is entitled to an evidentiary
hearing only upon establishing a prima facie case in support of PCR. R. 3:22-
10(b). "To establish a prima facie case, defendant must demonstrate a
reasonable likelihood that his or her claim, viewing the facts alleged in the light
most favorable to the defendant, will ultimately succeed on the merits." Ibid.;
see also Preciose, 129 N.J. at 463. This requires satisfying both prongs of the
Strickland test.
Judge Critchley properly concluded that defendant did not establish a
prima facie case for PCR because he could not satisfy the second prong of the
Strickland test. Accordingly, he correctly determined that an evidentiary
hearing was not required.
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Defendant's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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