STATE OF NEW JERSEY v. GARRY SUTCLIFFE

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. GARRY SUTCLIFFE,Defendant–Appellant.

DOCKET NO. A–4640–12T3

Decided: April 4, 2014

Before Judges Fuentes, Simonelli and Haas. Joseph S. Murphy argued the cause for appellant (Murphy and Woyce, attorneys;  Mr. Murphy and Michael C. Woyce, on the brief). Keith E. Hoffman, Senior Assistant Prosecutor, argued the cause for respondent (Camelia M. Valdes, Passaic County Prosecutor, attorney;  Mr. Hoffman, on the brief).

Defendant Garry Sutcliffe appeals from the April 26, 2013 Law Division order, which denied his petition for post-conviction relief (PCR) without an evidentiary hearing.   We affirm.

A grand jury indicted defendant for second-degree luring or enticing a child, N.J.S.A. 2C:13–6 (count one);  second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5–1 and N.J.S.A. 2C:14–2a(1) (count two);  and third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5–1 and N.J.S.A. 2C:24–4a (count three).   Defendant pled guilty to counts one and three in exchange for the State recommending a sentence in the third-degree range of four years subject to Megan's Law, N.J.S.A. 2C:7–1 to –23, and parole supervision for life (PSL), N.J.S.A. 2C:43–6.4.

On appeal, defendant raises the following contentions:

POINT I:  [DEFENDANT'S] PETITION, CERTIFICATIONS AND EXHIBITS PRESENTED A PRIMA [FACIE] CASE AND HE IS ENTITLED TO A HEARING BECAUSE HIS PLEA OF GUILTY [ ] WAS NOT VOLUNTARY AND KNOWING, BECAUSE HIS ATTORNEY MISLED HIM AS TO THE DIRECT CONSEQUENCES OF HIS PLEA, NAMELY[,] THAT IF HE

A) PLED GUILTY THE JUDGE COULD GIVE HIM

A SUSPENDED SENTENCE

B) [ ] HE WOULD NOT RECEIVE A SENTENCE

OF PAROLE SUPERVISION FOR LIFE.

POINT II:  THE FAILURE OF THE PROSECUTION TO HAND OVER BRADY MATERIAL IS SUFFICIENT GROUNDS FOR PERMITTING [DEFENDANT] TO WITHDRAW THE PLEA[ ] AND[,] AT THE PCR HEARING, THE COURT SHOULD HAVE GRANTED [DEFENDANT'S] MOTION TO COMPEL DISCOVERY AS IT WOULD HAVE A DIRECT BEARING ON HIS CLAIM OF INNOCENCE AND BECAUSE IT CONTAINED BRADY MATERIAL.

POINT III:  THE COURT ERRONEOUSLY DETERMINED THAT [DEFENDANT] FAILED TO SHOW A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE IT REFUSED TO VIEW THE FACTS IN THE LIGHT MOST FAVORABLE TO HIM.

POINT IV:  THE COURT DID NOT PROPERLY APPLY THE FACTORS AS OUTLINED IN STATE V. SLATER, 198 N.J. 145 (2009).

We derive the following facts from the record.   Defendant engaged in sexually-explicit communications via a public website and telephone with a girl named Pilar, whom he believed was twelve-years old.   Pilar was actually an undercover detective from the Passaic County Sheriff's Office who recorded the communications.   Defendant sent Pilar a nude photograph of himself and arranged to meet her.

On April 1, 2005, defendant was arrested while on his way to meet Pilar.   After receiving and waiving his Miranda 2 rights, he gave a written and videotaped statement admitting that he continued communicating with Pilar after discovering she was twelve-years-old, their chats were sexual in nature, and they discussed meeting to engage in sexual acts.

At a hearing on January 9, 2006, defendant was advised that in exchange for a guilty plea, the State would recommend a five-year term of imprisonment and that defendant would be subject to Megan's Law and PSL. Thereafter, on April 7, 2006, defendant initialed and signed plea forms that contained his agreement to plead guilty to counts one and three, the State's recommendation of a sentence in the third-degree range to four years, and that defendant would be subject to an evaluations at the Adult Diagnostic and Treatment Center (ADTC evaluation), Megan's Law, and PSL. Although defendant circled “N/A” on the plea form for the question regarding PSL, he initialed and signed a separate PSL form that contained parole conditions.

Prior to pleading guilty at the plea hearing on April 10, 2006, defendant stated that he understood the State was recommending a four-year term of imprisonment and that he would be subject to an ADTC evaluation, Megan's Law, and PSL. He also stated that no one forced him to plead guilty and he was pleading guilty of his own free will because he was in fact guilty.   In giving a factual basis for his plea, defendant admitted that he attempted via electronic means to lure and entice a person he reasonably believed to be a child into a motor vehicle, structure or isolated area with purpose to commit a criminal offense with or against the child;  and attempted to engage in such conduct with a child less than thirteen years of age which would impair or debouch the child's morals.   He also admitted that he reasonably believed the person with whom he communicated was a twelve-year-old girl, he attempted to engage in sexual conduct with her by engaging in graphic conversations via the internet;  and he attempted to meet her to engage in sexual acts.

Following defendant's plea, defendant again stated he understood that he would be subject to an ADTC evaluation, Megan's Law, and PSL. He also admitted he had initialed and signed the plea and PSL forms, had no questions about his plea, and was satisfied with his attorney's advice.

In a pre-sentence letter to the judge, defendant admitted he committed the crimes, but requested a suspended sentence.   At sentencing on June 14, 2007, the judge sentenced defendant to a three-year term of imprisonment subject to an ADTC evaluation, Megan's Law and PSL.

Defendant did not file an appeal.   Instead, six years after his plea, and nearly five years after sentencing, on June 13, 2012, he filed a PCR petition, seeking to withdraw his guilty plea based on the ineffective assistance of counsel and an alleged Brady 3 violation.   He argued his plea was not voluntary and knowing because his attorney misinformed him that he would receive a suspended sentence instead of term of imprisonment and PSL did not apply to his case.   He also argued that his attorney failed to request, and the State withheld, discovery that would establish an entrapment defense and that he did not reasonably believe that Pilar was twelve years old.   On March 8, 2013, defendant filed a motion to compel discovery.

In a comprehensive April 26, 2013 written opinion, Judge Ernest M. Caposela denied the PCR petition and motion to compel discovery.   The judge found that defendant's recorded communications with Pilar, his confession to the police, and his factual basis belied his claim that he did not reasonably believe that Pilar was twelve years old when he engaged in the sexually-explicit communications with her and tried to meet her to engage in sexual acts.   The judge also found that:  (1) defendant was well-aware he would receive a term of imprisonment and would be subject to PSL;  (2) this was a negotiated plea;  (3) it would be fundamentally unfair to the State to vacate the plea and require discovery six years after entry of the plea;  (4) the State withheld no discovery that would have affected defendant's decision to plead guilty;  (5) defendant had ample discovery to allow him to knowingly, voluntarily, and intelligently plead guilty;  and (6) entrapment did not apply to this case because the police used approved tactics.

Judge Caposela concluded that defendant could not establish the four factors set forth in State v. Slater, 198 N.J. 145, 150 (2009):  “(1) whether the defendant has asserted a colorable claim of innocence;  (2) the nature and strength of defendant's reasons for withdrawal;  (3) the existence of a plea bargain;  and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.”   The judge also concluded that defendant failed to establish the two factors in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984), that counsel's performance was deficient, and defendant was prejudiced thereby.

We defer to a PCR court's factual findings that are supported by sufficient credible evidence in the record.  State v. Nash, 212 N.J. 518, 540 (2013).   However, “we need not defer to a PCR court's interpretation of the law;  a legal conclusion is reviewed de novo.”  Id. at 540–41 (citations omitted).

A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel must show that:  (1) counsel's performance was deficient;  and (2) the deficiency prejudiced the defense.  Id. at 542 (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 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, 138–39 (2009) (alterations in original) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L. Ed.2d 873 (1996)) (internal quotation marks omitted).]

We have considered defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion.   R. 2:11–3(e)(2).   We affirm substantially for the reasons expressed by Judge Caposela in his comprehensive and well-reasoned written opinion, which the record amply supports.

Affirmed.

FOOTNOTES

2.  FN2. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

3.  FN3. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L. Ed.2d 215 (1963).

PER CURIAM

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