Opinion
DOCKET NO. A-2834-11T3
04-03-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN SKOUDRIS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Carroll.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Accusation No. 07-05-0912.
Joseph E. Krakora, Public Defender, attorney for appellant (Durrell Wachtler Ciccia, Designated Counsel, on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant John Skoudris appeals from an order, entered November 3, 2011, without an evidentiary hearing, denying his petition for post-conviction relief (PCR) alleging ineffective assistance of counsel. We affirm.
On May 30, 2007, defendant pled guilty to a single-count accusation charging second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(c). The accusation alleged that defendant attempted to commit an act of sexual penetration upon a child at least thirteen but less than sixteen years old, and that defendant was more than four years older than the child. In reality, the child was an undercover officer posing as a fourteen-year-old boy ("Chris"). The State alleged that defendant entered an online chat room, identified himself as a forty-year-old male, and then engaged in sexually explicit conversation with "Chris". The State further alleged that defendant thereafter arranged to meet "Chris" at Deer Lake Park in Manahawkin for the purpose of engaging in sexual activity.
When he entered his guilty plea, defendant testified that he discussed the matter with his attorney, who reviewed each of the plea forms with him, which he then signed and initialed. Defendant further stated that counsel answered all of his questions; he was satisfied with her legal services; and he was pleading guilty voluntarily.
As a factual basis for his guilty plea, defendant admitted that he had an online account on his sister's computer and that he engaged in a "discussion or chat" with someone who he believed to be between thirteen and sixteen years old. Defendant then made arrangements to meet the child at Deer Lake Park, and later drove there with the intent to commit an act of sexual penetration on the child. In accepting this factual basis, the judge stated:
THE COURT: Okay. All right. I'll accept the factual basis for the plea. I'll find that there was an attempt. There was the arranging on-line and there was the showing-up at Deer Park in an effort at the appointed time to meet with the child.
I take it, since there's no initial, the child was actually an undercover person.
[PROSECUTOR]: That's correct, your Honor.
In his plea colloquy the judge asked defendant if he understood that he was pleading guilty to an accusation and that the matter had not gone before the grand jury:
[THE COURT]: First off, you signed a paper that said it was okay with you that the matter did not go before the grand jury.
[DEFENDANT]: Yes.
[THE COURT]: There is a difference between an indictment and an accusation. Did your lawyer talk to you about that?
[DEFENDANT]: Yeah. Pretty much, yeah.
[THE COURT]: Okay. And you understand that an indictment is what's returned by the grand jury. They make a decision that there is enough evidence to charge you with it.
The accusation comes directly from the prosecutor's office. And by agreeing to the accusation, you're saying: I agree there is enough evidence to charge me with this crime, and I'll take a direct charge from the prosecutor's office.
[DEFENDANT]: Yes.
[THE COURT]: Okay. Is that what you want to do today?
[DEFENDANT]: Yes.
[THE COURT]: And is that why you signed this paper that says that you're waiving your right to indictment?
[DEFENDANT]: Yes.
[THE COURT]: You're also telling me, or the lawyers are telling me, that you are prepared to plead guilty to this particular accusation today. Is that true?
[DEFENDANT]: Yes.
[THE COURT]: So you're telling me not only is there enough evidence to charge you, but you in fact did commit the crime of attempted sexual assault?
[DEFENDANT]: Yes.
At the conclusion of this discussion the judge stated:
I'll accept the waiver of indictment. He understands that the grand jury has not reviewed this, but accepts that there is a basis to charge him with this. And he accepts responsibility for the act of the attempted sexual assault.
During the plea colloquy the judge and counsel discussed with defendant the five-to-ten-year period of incarceration he was exposed to under the plea agreement. Defendant expressly acknowledged that at sentencing the State intended to seek the maximum ten-year prison term, but that his counsel was free to argue for less. The judge advised defendant that she would review the presentence report and then determine an appropriate sentence, although she cautioned defendant that "more likely it's going to be closer to the ten [years] than it is to the five. Do you understand that?" Defendant responded "Yes."
The judge then reviewed with defendant his understanding of the collateral consequences associated with his guilty plea. Specifically, the judge asked defendant whether counsel discussed with him, and he understood, that he was subject to parole supervision for life (PSL), Megan's Law classification and notification requirements, and the need to be evaluated at the Adult Diagnostic Treatment Center (Avenel) to determine whether he would be classified as a compulsive and repetitive offender. Defendant, who was already subject to Megan's Law due to a prior conviction, responded that he understood. The judge then asked:
[THE COURT]: Okay. But in any event, you could be -- they will review the circumstances of your case. If they believe it's violent, you could be considered as a
sexually violent predator. That's another process. And after a hearing, if you were determined to be a sexually violent offender, you could go back to a civil commitment after you finish your incarceration.
Did [counsel] talk to you about that?
[DEFENDANT]: Yes.
[THE COURT]: And do you understand all about that?
[DEFENDANT]: Yes.
At the conclusion of the plea hearing, the judge found that defendant "understands the consequences of the Megan's Law registration, the parole supervision for life, the [i]nternet notice to the community, and the other aspects of the consequences of his plea, and that he accepts those consequences."
Defendant was sentenced on January 25, 2008 to a ten-year term of imprisonment along with the applicable fines and penalties. He received 530 days of jail credit. Defendant was placed on parole supervision for life. The judge noted that defendant had a prior conviction for failing to register under Megan's Law, and that he remained subject to the requirements of Megan's Law on this conviction. Finally, the judge addressed defendant, stating:
THE COURT: And I advise you that if it's determined while you're in Avenel that you
pose a violent danger, you're a sexually-violent predator, they can move against you civilly to keep you confined for an extended period.
If they release you, you will still be subject to parole supervision for life.
Do you understand all that?
[DEFENDANT]: Yes.
THE COURT: And you've gone over all of that with [counsel], as well. Correct?
[DEFENDANT]: Yes.
THE COURT: And we talked about that at the time of your plea, also. Correct?
[DEFENDANT]: Yes.
Defendant's appeal was limited to the length of this sentence and was listed for consideration on an Excessive Sentence Oral Argument Calendar. We affirmed defendant's sentence, except as to the amount of the Sex Crime Victim Treatment Fund penalty, which we remanded for reconsideration. State v. Skoudris, No. A-5010-07 (App. Div. May 1, 2009).
In November 2010 defendant filed a PCR petition. PCR counsel was appointed and filed a brief asserting that trial counsel was ineffective for failing to investigate discovery, and to assert the defense of entrapment. Defendant filed a supplemental pro se brief contending that trial counsel was ineffective because he failed to (1) file a bail motion; (2) properly notify him of possible civil commitment; (3) raise the defense of renunciation of criminal purpose; (4) challenge a defective search warrant; (5) file a dismissal motion; (6) challenge the erroneous pre-sentence report; and (7) properly explain defendant's exposure at sentencing.
The court heard oral argument on November 2, 2011. On November 3, 2011, Judge James M. Blaney issued a comprehensive and well-reasoned written opinion denying the petition in its entirety. With regard to defendant's arguments that his attorney was deficient for failing to review discovery or file a dismissal motion, and had "talked him into waiving the indictment process to facilitate his guilty plea," Judge Blaney found that "[a]t his plea colloquy, defendant admitted that he had reviewed evidence with trial counsel, that there was enough evidence to charge him with the offense and that there was a sufficient factual basis to substantiate his plea."
Judge Blaney was not the judge who accepted defendant's plea or sentenced him.
Judge Blaney also rejected defendant's contention that trial counsel was ineffective for providing misleading information that defendant would receive a seven-year sentence in return for his open plea, and for failing to challenge that sentence or the pre-sentence report. Judge Blaney found that "[t]rial counsel was not deficient in advising defendant about his open plea, subject to the court's discretion[,] and her conduct did not fall below the objective standard of reasonableness." The judge also noted that defendant had filed an appeal challenging his sentence, which the Appellate Division affirmed, finding that "the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion." Thus, aside from lacking substantive merit, defendant's sentencing issues could have been raised on direct appeal and hence were procedurally barred. R. 3:22-4.
Judge Blaney further found that defendant's claims that counsel did not properly advise him with respect to the collateral consequences of his plea, most notably the possibility of civil commitment, were belied by the record. Rather, the record reflected that defendant was informed at both his plea colloquy and sentencing hearing about the possible consequences associated with his plea, including civil commitment. The judge found:
It is clear from the record that the Court addressed the possibility of civil commitment with [defendant] on several occasions, and inquired as to whether his attorney had also addressed the same. In fact, counsel herself informed the Court that her client understood the consequences of his plea, including the possibility of civil commitment. [Defendant] also stated under oath that he had reviewed the plea
form with his attorney and that counsel had explained each question to [defendant]. Furthermore, on [defendant's] signed plea form additional questions for certain sexual offenses, he circled "Yes" to question number 7 on page 4, indicating that he understood that upon completion of his term of incarceration he may be civilly committed to another facility if the Court so finds it appropriate. It is indisputable from the record that trial counsel was not ineffective in advising [defendant] as to the possibility of civil commitment in regards to his plea.
In rejecting defendant's argument that trial counsel was deficient for failing to assert the defense of entrapment, the PCR court's findings were as follows:
[Defendant] claims that trial counsel was ineffective for failing to investigate a defense of entrapment. Failure to investigate may constitute ineffective assistance of counsel. State v. Deutsch, 229 N.J. Super. 374, 377-378 (App. Div. 1988). Counsel's strategic choices about which lines of defense to further investigate and pursue are owed deference when the choice was reasonable based on the totality of circumstances. Strickland, at 681. Under the first prong of the Strickland/Fritz test, [defendant] must show that counsel's conduct was deficient for failing to assert this defense and accordingly her performance fell below the objective standard of reasonableness. [Defendant] [c]ites to no facts that a defense of entrapment would have beenThe judge concluded that trial counsel was not ineffective for failing to raise the entrapment defense as it was without merit under the facts of this case.
successful, however, this court examines the merits of the defense anyway.
In order to support an entrapment defense, the Court must consider the totality of circumstances and may review the following relevant factors:
1. whether the government or the defendant was primarily responsible for creating and planning the crime;
2. whether the government or the defendant primarily controlled and directed the commission of the crime;
3. whether objectively viewed the methods used by the government to involve the defendant in the commission of the crime were unreasonable; and
4. whether the government had a legitimate law enforcement purpose in bringing about the crime.
[State v. Johnson, 127 N.J. 458, 474 (1992).]
In application of the factors to the facts at hand, it is clear that an entrapment defense would not have been appropriate under the circumstances. Under the first and second factors, [defendant] was primarily responsible for creating and planning the crime, as well as controlling and directing the commission of the crime. Although the government decoy did enter the America Online chat room Romance/ByLocation/OceanCountyM4M using the name "Chrismyspc14," it was [defendant], using the screen name "Jas3635," who first contacted the decoy. Furthermore, it was [defendant] who initially interjected sexual themes into the conversation and suggested that the parties meet in person. Ultimately, [defendant] was providing all of
the sexually charged lines of conversation and information to whom he thought was a fourteen[-]year[-]old male. [Defendant] suggested a variety of sexual acts he has done with other boys and indicated he would do those acts with or to the decoy. It was [defendant], not the government decoy, who actively set forth the plan to pursue who he thought was a fourteen[-]year[-]old boy; the government decoy merely responded to [defendant]. Accordingly, the first and second factors necessary for an entrapment defense are unsatisfied.
Under the third factor, the methods used by the government to involve [defendant] in the commission of the crime were not unreasonable. Case law has held that it is not entrapment when the police merely furnish opportunities or facilities for, or aid or encourage the defendant in, the commission of an offense, if the intent had its inception in the defendant's mind. State v. Rockholt, 96 N.J. 570, 575 (1984), quoting State v. Dolce, 41 N.J. 422, 431-32 (1964). Moreover, "[n]othing prohibits the police from creating characters to conduct undercover investigations. Rather, decoys, traps, and deceptions properly may be used to apprehend those engaged in crime or to obtain evidence of the commission of crime." State v. Davis, 390 N.J. Super. 573, 593 ([App. Div.] 2006), quoting State v. Rockholt, [supra], 96 N.J. [at] 575.
Here, the government decoy entered a chat room when [defendant] initially contacted the decoy with a private instant message. [Defendant], forty years old at the time, within ten lines of the conversation, was aware that the decoy was only fourteen[-] years[-]old. At the point where [defendant] learned that the decoy was only fourteen[-] years[-]old, he had the option to end the conversation or to continue chatting with the decoy. He continued the conversation by
interjecting sexually explicit themes, asking the decoy if he has ever measured his penis and telling him that he has done the following with other boys: "oral, anal, give them a massage, kiss, rimming, sucked on their toes." The methods used by the government in using a decoy to respond to [defendant] were not unreasonable and accordingly, the third factor necessary for an entrapment defense is absent.
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
State v. Fritz, 105 N.J. 42 (1987).
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The PCR judge further concluded that the defense of renunciation of criminal purpose was equally unavailing here had counsel sought to raise it. The judge noted that "[r]enunciation of criminal purpose pursuant to a criminal attempt is an affirmative defense which the defendant must prove by a preponderance of the evidence that he abandoned his effort to commit the crime or otherwise prevented its commission, manifesting a complete and voluntary renunciation of his criminal purpose." N.J.S.A. 2C:5-1(d). In order to commit an attempted sexual assault, a defendant must take a substantial step toward the commission of the crime. State v. Davis, supra, 390 N.J. Super. at 589. The PCR judge found the facts in this case nearly identical to those in Davis, as both involved online conversations between adult males and undercover officers posing as children, during which sexual conversations occurred and plans were made to meet in furtherance of those conversations. Those facts were found sufficient in Davis to constitute an attempt. Id. At 590.
Judge Blaney also considered, and rejected, defendant's argument that trial counsel was ineffective for failing to thoroughly investigate the search warrant affidavit, and to request a Franks hearing. Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). His findings were as follows:
Here, [defendant] does not allege deliberate falsehood or reckless disregard for the truth. Rather, he states that the detective in his sworn affidavit for the warrant "lied" in that [defendant] did not state he wanted to meet the decoy for the purpose of having sex. [Defendant] is correct that he never stated he intended to have sex with a fourteen[-]year[-]old boy. However, all of the facts in the cumulative, including the type of chat room in which [defendant]and the decoy "met," the nature of the conversation, the discussion of sexual acts and the fact that [defendant] said he would bring condoms, along with the fact that [defendant's] MySpace page is entitled "YoungerWANTED" and features photos of young boys, all indicate that [defendant] intended to engage in sexual conduct with the fourteen[-]year[-]old boy. Accordingly, it is not a deliberately false or reckless disregard of the truth that the warrant affiant stated [defendant] wanted to meet "for the purpose of having sex."
[Defendant] submits no offer of proof to support his contention that the warrant affidavit is defective, as he offers no proofs of falsity or disregard for the truth. He merely submits that he intended to be "friends" with the fourteen[-]year[-] old decoy and that he was being a "big brother giving meaningful advice." Without more, [defendant] would not have been entitled to a Franks hearing at the time of his plea as he sets forth no deliberate falsehood or reckless disregard of the truth in the affidavit. Upon an objective[ ] review of the facts, trial counsel was not ineffective for failing to request a Franks hearing as [defendant] did not set forth the appropriate proofs to substantiate such a hearing.
In applying the appropriate standards for considering PCR claims based on ineffective assistance of counsel, Judge Blaney recognized that trial courts should ordinarily grant evidentiary hearings when a petitioner has established a prima facie claim of ineffective assistance. Judge Blaney concluded that defendant did not establish a prima facie showing that trial counsel was deficient, or that defendant was prejudiced or would have sought to retract his guilty plea and stood trial on the charge. The court's decision was memorialized in an order entered on November 3, 2011.
On appeal from the denial of his petition, defendant presents the following argument:
POINT I
THE LOWER COURT ERRED IN NOT GRANTING
DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.
Defendant has amplified this general argument in his brief with substantive contentions challenging the merits of Judge Blaney's analysis.
Based on our review of the record and the applicable law, we have concluded that this argument does not warrant extended discussion. R. 2:11-3(e)(2). Accordingly we affirm substantially for the reasons stated by Judge Blaney in his written decision of November 3, 2011. We add only the following comments.
To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient"; that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "there is 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, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987).
To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland that "counsel's assistance 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)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must establish "'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.'" DiFrisco, supra, 137 N.J. at 457 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)) (alteration in original).
Whether a PCR hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion. R. 3:22-10; see State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-10(b) states in pertinent part:
A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of PCR, a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.Additionally, to establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland-Fritz test. See Preciose, supra, 129 N.J. at 463.
Defendant has not made a prima facie showing that his counsel was ineffective. We reject defendant's contentions that he was not properly advised of his exposure at sentencing. That claim is clearly belied by his testimony at the plea hearing. Defendant was certainly informed, and understood, that he faced a maximum ten-year sentence, that the State would be seeking that maximum term, and that the judge was likely to sentence him toward the upper rather than the lower end of the second-degree range. Defendant stated at the plea hearing that he was satisfied with the information and time counsel provided, and with her representation.
We next address defendant's argument that he was denied effective assistance of counsel as a result of trial counsel's alleged failure to adequately advise him of the potential for civil commitment. We recognize that the potential for civil commitment may be of such great consequence that the failure to disclose it to a defendant may warrant allowing the defendant to withdraw his plea. State v. Bellamy, 178 N.J. 127 (2003). However, here the judge at both the plea and sentencing hearings emphasized to defendant that he faced the potential for civil commitment. On both occasions defendant indicated that he understood. At the plea hearing defendant told the court that his attorney had discussed this with him. On the special plea form, defendant circled "yes" when asked if he understood that he could be civilly committed upon completion of his term of incarceration. Defendant further stated at his plea hearing that his attorney explained each and every question on the plea forms to him. Defendant's argument that he was not fully aware of the risk of civil commitment is plainly dispelled by the record.
Defendant's arguments that counsel was deficient in compelling him to plead to an accusation, and failing to file a motion to dismiss the charge, are equally without merit. At the plea hearing defendant testified that counsel discussed with him the difference between an accusation and an indictment. Defendant then agreed that there was sufficient evidence to charge him, and to sustain that charge.
Defendant also fails to establish a prima facie showing that but for counsel's alleged deficient performance the result would have been different. With respect to counsel's failure to attack the adequacy of the search warrant, in his argument defendant concedes that the resultant search yielded no evidence that would have been used at trial to convict him. His arguments concerning counsel's failure to raise defenses of entrapment and renunciation of criminal purpose are equally unavailing. As Judge Blaney noted, in Davis, supra, under markedly similar facts involving sexually explicit online conversations with a minor, we stated:
This conversation, particularly within the context of the previous conversations, constituted a sufficient indication of his criminal purpose to constitute an attempt. See State v. Jovanovic, 174 N.J. Super. 435, 440-41 (1980) (Resentencing Panel), aff'd, 181 N.J. Super. 97 (App. Div. 1981). Defendant's failure to complete the planned
crime is inconsequential because the crime of attempt, in this appeal, rests in defendant's scheduling of the meeting. State v. Fornino, 223 N.J. Super. 531, 540 (App. Div.), certif. denied, 111 N.J. 570, cert. denied, 488 U.S. 859, 109 S. Ct. 152, 102 L. Ed.2d 123 (1988) ("[E]ven if further major steps are required before a crime can be completed, or the accused had ample opportunity to desist prior to completing the crime, a jury can still conclude that an attempt has been committed.").
[State v. Davis, supra, 390 N.J. Super. at 590.]
Here, the State's proofs that defendant's actions constituted a "substantial step" in the commission of the sexual assault are even more compelling than those in Davis, where the defendant failed to appear at the planned meeting with the child. As defendant does not deny, he provided a description of his vehicle, a gold Saturn automobile, which was registered to his sister at his address. The officers then observed a vehicle matching this description drive slowly past the entrance of Deer Lake Park around the time of the scheduled meeting with the child, and then park across the street, facing Deer Lake Park. These facts are plainly inconsistent with defendant's claim of renunciation of purpose.
Finally, defendant's sentencing arguments could have been raised on appeal, and hence are procedurally barred. R. 3:22-4. They also clearly lack merit, especially with respect to counsel's failure to challenge an allegedly erroneous presentence report. Here defendant claims that his prior conviction for kidnapping should never have been classified as a Megan's Law offense. He argues that if that prior conviction, or its classification as a Megan's Law offense, had been appealed, he would then also not have incurred a subsequent conviction for failing to register under Megan's Law. However there is nothing to show that counsel represented defendant on either of those two prior unrelated offenses. Nor has defendant demonstrated a likelihood that had such an appeal been taken that it would have been successful, given the circumstances of that kidnapping offense. Finally, as to counsel's failure to file a bail motion, at sentencing defendant received 530 days of jail credit, all that he was entitled to receive.
Under these circumstances, we agree with the PCR judge that defendant was not entitled to an evidentiary hearing because he did not present sufficient evidence to establish a prima facie claim of ineffective assistance of counsel.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION