STATE OF NEW JERSEY v. ANTHONY GILLIAM (2011)

Defendant Anthony Gilliam entered a plea of guilty to three counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(4);  and one count of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a.   Consistent with the plea agreement and after appropriate mergers, the trial judge sentenced defendant to seven years in prison in addition to mandated assessments, penalties and fees.¹  Defendant was also made subject to the requirements of Megan's Law, N.J.S.A. 2C:7-1 to -11, which included community supervision for life.   Defendant did not appeal but filed a pro se petition for post-conviction relief (PCR).  Following a plenary hearing on the PCR, the judge denied relief.   We affirm.

These are the underlying facts and those adduced at the PCR hearing.   From August 14, 2003 to August 24, 2003, defendant, then 37 years old, engaged in sexual activity including oral, digital and vaginal sex, with A.R., a thirteen-year-old girl.

On December 5, 2003, defendant appeared before the trial judge for the entry of a plea.   Under the terms of the plea agreement, defendant would plead guilty to the indictment and the State would recommend a seven-year sentence.   At the plea hearing, the judge reviewed the plea and explained the Megan's Law requirements as well as community supervision for life.   The following colloquy took place:

Q. Critically, as Mr. Gaynor pointed out, you could spend more time in treatment than you would spend if sentenced to State Prison.   If you are found to fall within the classification after the psychiatric examination, that you could spend more time in treatment;  that if the treatment took longer than the 7 years flat.   You understand that?

A. Yeah. I followed you, your Honor.

Q. All right.   I wanted to make sure.   That is really the key element here.   There is also what is known as the additional questions for certain sexual offenses.   You understand that you must register with certain public agencies as a result of this plea?

A. Yes, your Honor.

Q. You understand that if you change residence, you have to notify law enforcement?

A. Yes, your Honor.

Q. There is also a requirement of notification that may result in the requirement of registration to law enforcement, community organizations, or the public at large of your release from incarceration or presence in the community?

A. Say that again.

Q. All right.   This is the so-called Megan's Law, additional questions for certain sexual offenses.   You get out of jail, that there is a requirement that may result in notification to the police, community organizations, or the public where you are living in the community after you get out of jail.   You understand that?

A. Yes, your Honor.

Q. There would also be community supervision for life.   You understand that?

A. Yeah.

Q. As a result of your plea today?

A. Yes, I understand.

Q. All right.   Also DNA testing will be required.

A. Okay.

Sentencing was delayed pending a psychological examination.   The exam excluded defendant as a candidate for sex offender treatment at the Adult Diagnostic Center in Avenel, New Jersey.   Again, at sentencing, defendant was informed that he was being sentenced under Megan's Law and the sentence would include community supervision for life.

As we have noted, defendant did not appeal but, thereafter, filed a PCR. He asserted that he received ineffective assistance of counsel, specifically 1) trial counsel failed to request the court to find specific mitigating factors during the sentence hearing, 2) the trial court and trial counsel failed to explain to defendant the meaning and effect of community supervision for life and 3) the trial court and trial counsel failed to explain the effect of Megan's Law in a manner defendant would understand.

The PCR judge rejected defendant's sentencing argument but noted defendant's limited intellect and inability to read and write.   She ordered an evidentiary hearing to determine whether he understood his plea and specifically, as it applied to Megan's Law and community supervision for life.

At the hearing, defendant testified he had always had a learning disability and he had explained to his trial attorney that he could not read or write.   Defendant claimed that his trial attorney told him the plea forms were “legal stuff” and that he only explained how much time he would serve to defendant's mother.   Defendant also contended that his trial attorney did not explain Megan's Law to him until after he complete the plea forms.   When he was asked to explain what bothered him about Megan's Law, defendant said that he will be supervised for life, he could not live at home, and “the community can destroy the rest of your life.”   Until he was imprisoned he did not know he would “have life supervision for life.”

His attorney, Robert A. Gaynor then testified.   When counsel first met defendant he observed that he was a “letter writer” who asked for personal attention with regard to his case.   He also observed that defendant had limited intellect, and because of that, he gave defendant more jail contact than most of his other clients.   Gaynor negotiated a plea agreement on defendant's behalf, which was well below defendant's maximum sentence.   In fact, he negotiated “flat time” for defendant instead of a period of parole ineligibility.   A conference with defendant took place eight days before defendant entered his guilty plea, and he remembered reviewing “the Avenel consequences which was part of the plea form for Megan's Law.” He had also discussed Megan's Law with defendant on a later occasion.   At sentencing, Gaynor tried to convince the judge to impose a sentence lower than the plea agreement allowed but was unsuccessful.

Counsel recalled receiving numerous letters written on defendant's behalf by other inmates that revealed defendant's concern over how long he would be incarcerated.   He responded to those letters by explaining the potential impact of Megan's Law and Avenel to defendant when they met.

During his representation of defendant, Gaynor visited defendant five times before his plea, and ten times after the plea with regard to Megan's Law and community supervision for life.

Defendant asserted that before and after his plea, he indicated that he did not understand the parameters of his plea agreement because Gaynor failed to adequately explain the agreement to him.

Judge Marino determined that defendant required significant attention from counsel because of defendant's limited intellectual capacity and the numerous letters defendant had other inmates write on his behalf.   Gaynor responded to defendant's requests by going to the jail and explaining Megan's Law to defendant on at least two occasions prior to his plea.   Judge Marino also found that the plea judge had “discussed” Megan's Law and community supervision for life.   The judge concluded that defendant had received the effective assistance of counsel at the time of his guilty pleas and as a result, denied defendant's petition for post-conviction relief.

On appeal, defendant raises the following issues:

POINT ONE THE FAILURE OF TRIAL COUNSEL TO EXPLAIN THE CONSEQUENCES OF A SENTENCE THAT INCLUDED COMMUNITY SUPERVISION FOR LIFE, DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT TWO THE FAILURE OF TRIAL COUNSEL AND THE TRIAL COURT TO EXPLAIN THAT DEFENDANT COULD BE COMMITTED UNDER THE SEXUALLY VIOLENT PREDATOR ACT CAUSED DEFENDANT TO LACK KNOWLEDGE AND UNDERSTANDING OF THE PLEA AGREEMENT, DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL (NOT RAISED BELOW).

POINT THREE THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT A NEW SENTENCING HEARING AS A RESULT OF TRIAL COUNSEL PROVIDING DEFENDANT WITH INEFFECTIVE ASSISTANCE AT HIS SENTENCING HEARING.

POINT FOUR THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING WITH REGARD TO COUNSEL'S INEFFECTIVE REPRESENTATION AT THE SENTENCING HEARING.

During his plea colloquy with defendant, the plea judge inquired as to whether defendant reviewed the plea forms with counsel and specifically, those provisions related to sexual offenses.   Defendant answered in the affirmative.   This is consistent with his counsel's recollection at the PCR hearing as well as the PCR judge's finding.   In her decision at the conclusion of the PCR hearing, the PCR judge concluded that counsel's testimony regarding his review of Megan's Law and its consequences as well as community supervision for life was credible.   Defendant's denials to the contrary were incredible.   She further concluded that counsel was not ineffective, and defendant was fully advised of the consequences of his plea.²

Defendant's citation to State v. Jamgochian, 363 N.J.Super.   220 (App.Div.2003), aff'd, modified sub nom, Jamgochian v. New Jersey State Parole Board, 196 N.J. 222 (2008), is unavailing.   Jamgocian recognizes that a defendant entering a plea must be advised of the consequences of the plea including community supervision for life and that an assertion of the absence of such explanation warrants further inquiry through a PCR hearing.   Here, a hearing was held, and the PCR judge concluded that counsel had advised defendant of the consequences of the plea.   We note that our decision in Jamgochian recognizes that a plea judge need not inform defendant of all of the details of community supervision for life, id. at 227, but even if the judge only mentioned that condition, plea counsel indicated that he did review the subject.   That testimony was accepted by the PCR judge.   We find no basis to conclude that counsel was ineffective.

In considering defendant's appeal where the PCR judge has conducted an evidentiary hearing, we will defer to a judge's factual findings if they are supported by credible evidence in the record.

In addition, we consider the relevant tests for determining whether defendant has been afforded effective counsel.   Addressing the latter considerations first, we set forth the relevant case law informing our decision.

Under the Sixth Amendment of the United States Constitution, a person accused of crimes is guaranteed the effective assistance of legal counsel in his defense.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984).   To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that:  (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense.  Ibid. The Strickland test has been adopted in New Jersey.  State v. Fritz, 105 N.J. 42, 58 (1987).   See also State v. Allegro, 193 N.J. 352, 366 (2008);  State v. Loftin, 191 N.J. 172, 197-98 (2007).   In reviewing such claims, courts apply a strong presumption that defense counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”  Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L. Ed.2d at 695.  “[C]omplaints ‘merely of matters of trial strategy’ will not serve to ground a constitutional claim of inadequacy․”  Fritz, supra, 105 N.J. at 54 (quoting State v. Williams, 39 N.J. 471, 489, cert. denied, 374 U.S. 855, 83 S.Ct. 1924, 10 L. Ed.2d 1075 (1963), overruled in part on other grounds by, State v. Czachor, 82 N.J. 392, 402 (1980));  see also State v. Perry, 124 N.J. 128, 153-54 (1991).

In assessing the first prong, a court must determine whether counsel's conduct “fell outside of the wide range of professionally competent assistance considered in light of all the circumstances of the case.”  State v. Castagna, 187 N.J. 293, 314 (2006) (citation and internal quotation marks omitted).   As noted, in considering the conduct of counsel, there is a strong presumption that such conduct “falls within the wide range of reasonable professional assistance.”  Ibid. (citation and internal quotation marks omitted).   Defendant must demonstrate that counsel's action “did not equate to sound trial strategy.”  Ibid. (citation and internal quotation marks omitted).   As the Supreme Court observed:

an otherwise valid conviction will not be overturned merely because the defendant is dissatisfied with his or her counsel's exercise of judgment during the trial.   The quality of counsel's performance cannot be fairly assessed by focusing on a handful of issues while ignoring the totality of counsel's performance in the context of the State's evidence of defendant's guilt.   As a general rule, strategic miscalculations or trial mistakes are insufficient to warrant reversal except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial.

[Allegro, supra, 193 N.J. at 367 (quoting Castagna, supra, 187 N.J. at 314-15) (citations, internal quotation marks and editing marks omitted).]

The second prong of the Strickland test requires that “prejudice must be proved;  it is not presumed.”  Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S.Ct. at 2067, 80 L. Ed.2d 696-97).   In order to prove prejudice, defendant must show the “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Ibid. (citing Strickland, supra, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L. Ed.2d at 698).   See also State v. Gaither, 396 N.J.Super. 508, 513-14 (App.Div.2007), certif. denied, 194 N.J. 444 (2008);  State v. Rountree, 388 N.J.Super. 190, 206-07 (App.Div.2006), certif. denied, 192 N.J. 66 (2007).

We need not address the second Strickland prong as we conclude that counsel was not ineffective, and defendant did not meet his burden under the first prong.   In representing defendant, he recognized defendant's cognitive limitations and exhibited the care and concern that reflected his understanding of the needs of his client.   He stated that he met with defendant on numerous occasions to explain the consequences of the plea.   He negotiated a favorable plea agreement for his client, and most important, reviewed the plea agreement and plea forms to insure defendant's understanding of the import of his actions.   These were the findings of the PCR judge, and they warrant deference.

“An appellate court must accept a trial court's factual finding[s] if [they are] supported by sufficient credible evidence in the record.”  State v. Arthur, 184 N.J. 307, 320 (2005) (citing State v. Locurto, 157 N.J. 463, 472 (1999)).   It should not disturb the trial court's findings “merely because ‘it might have reached a different conclusion were it the trial tribunal [.]’ ”  State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 164 (1964).   This is because trial judges have an opportunity to hear and see witnesses and gain a feel for the case, which a reviewing court cannot enjoy.  Ibid.

Finally, we reject without further need for an expansive discussion that counsel failed to provide effective assistance at the sentencing hearing.   We conclude that the record fails to support that claim.

The PCR judge correctly denied defendant's petition.

Affirmed.

FOOTNOTES

FN1. Defendant served his term of incarceration and has been released.   He is still subject to Megan's Law registration and notification requirements as well as community supervision for life..  FN1. Defendant served his term of incarceration and has been released.   He is still subject to Megan's Law registration and notification requirements as well as community supervision for life.

FN2. As to the SVPA (Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38), the State concedes that defendant is not subject to the statute and any asserted failure to discuss its consequences is of no moment.   We further note that the issue was not raised below and we decline to consider it on this appeal.  State v. Robinson, 200 N.J. 1, 20 (2009);  Neider v. Royal Indem.   Ins. Co., 62 N.J. 229, 234 (1973)..  FN2. As to the SVPA (Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38), the State concedes that defendant is not subject to the statute and any asserted failure to discuss its consequences is of no moment.   We further note that the issue was not raised below and we decline to consider it on this appeal.  State v. Robinson, 200 N.J. 1, 20 (2009);  Neider v. Royal Indem.   Ins. Co., 62 N.J. 229, 234 (1973).

PER CURIAM