NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant R.B. appeals from the order of the Criminal Part denying his post-conviction relief (PCR) petition. We affirm.
On December 4, 2008, defendant, represented by private counsel, negotiated an agreement with the State through which he pled guilty to an Accusation charging him with one count of second degree endangering the welfare of a child. N.J.S.A. 2C:24-4b(4). Defendant admitted that in 2004 he photographed his then fifteen-year-old stepdaughter while she was nude in the shower. In a statement he gave to law enforcement investigators, defendant admitted he took these pictures surreptitiously through the bathroom window, using a digital camera. He thereafter downloaded the pictures onto a computer disc. Defendant's wife, the child's mother, discovered these photographs. The victim was nineteen years old by the time law enforcement authorities became involved.
In exchange for defendant's guilty plea, the State agreed to recommend that the court sentence defendant within the third degree range and, despite the presumption of incarceration established by the Legislature in N.J.S.A. 2C:44-1d, the court sentenced defendant to a term of probation. The probation was conditioned upon defendant not having contact with children under the age of sixteen unless supervised by an adult, registering as a convicted sex offender pursuant to the statutory scheme known as "Megan's Law," N.J.S.A. 2C:7-1 to -19, and forfeiting his public office as a State Parole Officer, as mandated by N.J.S.A. 2C:51-2a(1).1 Finally, under the provisions of the Sex Offender Act, N.J.S.A. 2C:47-1 to 2C:47-10, defendant was required to submit to a psychological evaluation conducted at the Adult Diagnostic and Treatment Center (ADTC), to determine whether his
conduct was characterized by a pattern of repetitive, compulsive behavior and, if it was ... [determine defendant's] amenability to sex offender treatment and [his] willingness to participate in such treatment.
[N.J.S.A. 2C:47-2.]
The Judge explained in detail that the ADTC psychologist who would perform this evaluation would also prepare and submit to the court a report documenting the findings and recommendations. The Judge further explained that at the time of sentencing, the court was obligated to review the ADTC report and determine whether his conduct, as revealed in this offense, was indicative of a pattern of repetitive, compulsive behavior. N.J.S.A. 2C:47-3. The Judge also described, in great detail, the parole consequences that would result under the Sex Offender Act if defendant was found to be in need of the treatment offered by the ADTC.
After confirming that defendant understood what had been explained to him, the Judge addressed defense counsel with respect to soliciting a factual basis from defendant.
THE COURT: You want to do it [addressing defense counsel] or you want me to do it?
DEFENSE COUNSEL: I can do it.
THE COURT: Do it. They need copies.
DEFENSE COUNSEL: [R.B.], pursuant to the accusation you signed do you acknowledge that in the Township of Woodbridge in the County of Middlesex during the year 2004 you took a photo of H.S., a girl under the age of 16 and that photo depicted her in a nude fashion?
A. Yes.
....
PROSECUTOR: Judge, just to clarify the date. It's when H.S. was less than 16.
DEFENSE COUNSEL: That's correct. I'm sorry.
PROSECUTOR: So we're not precisely sure exactly when the picture was taken. But—
DEFENSE COUNSEL: We stipulate that she was under the age of 16 when the act was done.
THE COURT: Okay. (Emphasis added).
N.J.S.A. 2C:24-4b(4) provides the following definition of the second degree offense of endangering the welfare of a child:
A person commits a crime of the second degree if he photographs or films a child2 in a prohibited sexual act or in the simulation of such an act or who uses any device, including a computer, to reproduce or reconstruct the image of a child in a prohibited sexual act or in the simulation of such an act.
[N.J.S.A. 2C:24-4b(4) (emphasis added).]
N.J.S.A. 2C:24-4b(1) defines "prohibited sexual act" to include ten different acts, including: "Nudity, if depicted for the purpose of sexual stimulation or gratification of any person who may view such depiction. ..." (Emphasis added).
The court sentenced defendant on April 2, 2009. In addition to the information gathered at the plea hearing, the Judge reviewed the presentence investigation report prepared by the probation department,3 the psychological evaluation report prepared by the ADTC,4 and what the Judge characterized as "voluminous, voluminous, documentation" that had been provided to the Criminal Division Management by a variety of individuals, including the victim's biological mother, who was also defendant's wife. Although the Judge did not reveal on the record the legal significance of this information, he nevertheless made clear the information affected how he viewed the case against defendant.
The Judge noted that he and the attorneys had "conferenced this matter [off the record] because [the Judge] had to express some concern." After referencing the "voluminous" documentation he had reviewed, the Judge addressed defendant directly to express his concern about the date when the offense occurred. As the following colloquy shows, the Judge wanted to make sure the victim was in fact under the age of sixteen when defendant photographed her nude in the shower.
THE COURT: [T]he State's position is ... based upon your statement the information is brought out. And based upon that information, not because of what you said, but because of the investigation, you have to look at me in my face and tell me at the time that you took this picture was she under the age of 16. Because that's what you told me. That's what you told me. I didn't tell you. You told me.
So it happened so long ago that you didn't even remember you had it on that disc. Okay? So your indication in the file was troublesome, your letter to me. You're doing this to save your wife, you're doing this to look out for somebody else, or are you doing this to look out for yourself?
....
[I] don't want to sentence you if you're going — if you're innocent. That's not how it works. You have to tell me to my face right now that at the time you took that picture she was under 16.
DEFENDANT: At the time I took the picture she was under 16.
THE COURT: [D]on't say it to benefit from this. Don't say that. Please do me that favor. It happened a long time ago, but that's what the law requires, that you say those words. And I don't want it to be forced out of you. Did you say those words because you were forced in any way?
DEFENDANT: No.
THE COURT: Did you say—
DEFENDANT: No, your Honor.
THE COURT: — it because you mean it for real, [R.B.]?
DEFENDANT: Yes, your Honor.
THE COURT: Do you want me to go through with this plea bargain? If you don't, please tell me, and I'll stop it right now. We start fresh. What do you want?
DEFENDANT: I want you to go through with the plea bargain, your Honor, please.
THE COURT: I would have stopped the train right here. You want me to keep going?
DEFENDANT: Yeah.
THE COURT: You sure about that?
DEFENDANT: Yes, I am, your Honor.
After confirming that the information contained in the presentence investigation report was accurate, the Judge invited defense counsel to address the court on defendant's behalf. The record reflects defense counsel directly addressed the Judge's concern about defendant's culpability.
DEFENSE COUNSEL: I'm going to say I spent more time with [R.B.] than I can think of any other client in years. I'm talking PCRs, with homicides, double homicides. [With] respect to being prepared and negotiating a plea on behalf of my client or weighing the facts and going to trial, I sat and looked at that videotape, which is well over an hour, and endless amount of times with my client, without my client. Met with my client in jail as soon as I was retained. Met with my client's wife several times when he was incarcerated. When he got out, the family, who is here today ... the family came up from southern New Jersey and met with me on a couple of occasions to talk about the case.
And, you know, [R.B.] has been privy to all the things he's entitled to. Namely discovery, the pros and cons of going to trial, and proofs. And the most compelling thing is after he pled guilty we had a very long, meaningful consultation, myself, my client and my client's father, who is here in court, probably for three hours in my office. And I explained to my client he has an accusation. And if he wanted to take his plea back, they could indict him for whatever they find probable cause for. They're not limited to the accusation. After we had that meaningful talk, [R.B.] thought about wanting to vacate his plea. He told me that he's convinced he made the right decision and hopes that your Honor actually imposes the sentence of treating him as a third degree offender for sentencing purposes.
After hearing from the prosecutor, the court sentenced defendant in accordance with the plea agreement and imposed a three-year term of probation, subject to the mandatory registration provisions under Megan's Law, and the forfeiture of public office requirements in N.J.S.A. 2C:51-2a(1). In support of this sentence, the court found aggravating factor N.J.S.A. 2C:44-1a(9), and mitigating factors N.J.S.A. 2C:44-1b(1),(2),(7),(8),(9), and (11). The sentencing hearing does not contain specific facts or analysis supporting any of these findings. The Judge noted, however, that he was "imposing the sentence pursuant to [N.J.S.A.] 2C:44-1g."5
Defendant did not seek direct appellate review of any aspect of the plea hearing or the sentence imposed by the court. On December 19, 2012, defendant, represented by a different private attorney, filed this PCR petition challenging the factual basis of his plea and alleging ineffective assistance of counsel. On June 11, 2013, the PCR Judge6 heard oral argument from counsel and denied defendant's petition. The Judge found an evidentiary hearing was not warranted because defendant "failed to establish a prima facie case of ineffective assistance of counsel." See State v. Preciose, 129 N.J. 451, 462-63 (1992).
On July 5, 2013, defendant filed a motion for reconsideration. Relying primarily on an unpublished opinion from this court, defendant argued the PCR Judge "failed to appreciate the significance of the absence of an adequate factual basis." Inexplicably, the motion for reconsideration was not heard by the PCR Judge. The motion for reconsideration was argued before the Judge who originally accepted defendant's plea and sentenced him to a term of probation. The Judge reserved decision at the conclusion of oral argument. In an order dated December 20, 2014, the court denied defendant's motion for reconsideration. The Judge attached a memorandum of opinion explaining his ruling.
The Judge acknowledged that defendant's factual basis did not contain a direct statement from defendant expressing he surreptitiously took a digital photograph of his then fifteen-year-old stepdaughter while she was nude in the shower for his sexual stimulation or gratification. Relying on State v. Mitchell, 126 N.J. 565, 577-78 (1992), the Judge concluded that the totality of the circumstances supported the rational inference by the court that defendant's purpose in taking the picture was for his own sexual gratification.
Defendant now appeals raising the following arguments.
POINT I
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS PETITION UNDER STATE V. SLATER, BECAUSE HE PRESENTED A COLORABLE CLAIM OF INNOCENCE, AND THE PREJUDICE TO THE STATE IS MINIMAL.
A. Defendant Had A Colorable Claim Of Innocence.
B. The Nature And Strength Of Defendant's Reasons For Withdrawal.
C. The Existence Of A Plea Bargain.
D. Whether Withdrawal Of The Plea Would Result In Unfair Prejudice To The State Or Unfair Advantage To The Accused.
POINT II
DEFENDANT WAS ENTITLED TO AN EVIDENTIARY HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF, BECAUSE HE PRESENTED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL.
A. Defendant's Plea Counsel Was Ineffective For Failing To Advise Defendant That The State Would Be Unable To Prove The Age Of H.S. At The Time Any Photo Was Taken.
B. Defendant's Plea Counsel Was Ineffective For Inaccurately Advising Defendant That His Purpose In Taking Photographs Of H.S. Was Irrelevant.
C. Defendant Would Have Gone To Trial With Proper Advice.
We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, he must show there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. When reviewing a claim of ineffective assistance in the context of a plea hearing, "the issue is whether it is ineffective assistance of counsel for counsel to provide misleading, material information that results in an uninformed plea, and whether that occurred here." State v. Nunez-Valdez, 200 N.J. 129, 139-40 (2009).
Applying these well-settled standards of review, none of the arguments raised by defendant here have sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The record shows defendant made a knowing, fully informed, strategic decision to plead to an accusation charging him with second degree endangering the welfare of a child to avoid the probability that the State would file additional, more serious charges. Under the facts of this case, defendant was facing a presumptive state prison sentence ranging from five to ten years in prison. N.J.S.A. 2C:44-1d; N.J.S.A. 2C:43-6a(2). The most favorable legally probable sentence under these circumstances was a three-year term of imprisonment. N.J.S.A. 2C:44-1f(2). The record before us does not support any other legally sustainable outcome. Evers, supra, 175 N.J. at 388.
Despite these legal requirements, defendant's trial counsel kept defendant from serving a state prison term by negotiating a plea agreement that provided defendant with an extremely advantageous sentence. Defense counsel's performance under these circumstances helped defendant to achieve a very favorable result. There is also no rational basis to conclude defense counsel provided defendant with misleading material information that resulted in an uninformed plea. Nunez-Valdez, supra, 200 N.J. at 139-40.
Defendant's arguments based on State v. Slater, 198 N.J. 145 (2009), do not warrant discussion in a written opinion. R. 2:11-3(e)(2). The Supreme Court's recent decision in State v. Tate, 220 N.J. 393 (2015) does not alter our conclusion. Our standard of review in this respect is de novo. Id. at 403-04. Writing on behalf of a unanimous Court, Justice Albin made clear in Tate that "[a] factual basis for a plea must include either an admission or the acknowledgment of facts that meet the essential elements of the crime." Id. at 406 (citations omitted). Here, the material facts defendant acknowledged during the plea hearing permit us to draw the rationally irrefutable inference that defendant's purpose in taking this photograph was for his own sexual stimulation and gratification.
Affirmed.
