STATE OF NEW JERSEY v. EDWARD MILIUS (2013)

Defendant Edward Milius appeals from an order entered by the Law Division on February 9, 2011, denying his petition for post-conviction relief (PCR).  We affirm.

I.

Defendant was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14–2(a) (counts one and two);  second-degree sexual assault, N.J.S.A. 2C:14–2(b) (count three);  and second-degree endangering the welfare of a child, N.J.S.A. 2C:24–4(a) (count four).   Defendant pled guilty to counts one and two.   The State agreed to recommend that the sentences imposed on the two counts run concurrently, but indicated that the sentence would be left to the court's discretion.

In response to questions of his attorney, defendant provided a factual basis for the plea.   Defendant stated that between February 12, 2000, and February 11, 2003, he was living in Stafford Township and B.P. came to visit his home.   Defendant said that at the time, B.P. was younger than thirteen years of age.   Defendant admitted that he penetrated B.P.'s vagina with his finger, and also penetrated her vagina with his tongue.

Defendant acknowledged that he signed a plea form, indicating that the statutory maximum sentence for aggravated sexual assault was twenty years.   He also acknowledged signing a form, which indicated that if he was convicted of a sexually violent offense such as aggravated sexual assault, he could be civilly committed upon the completion of his term of incarceration.

The trial court sentenced defendant to two, twenty-year terms of incarceration, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2, and ordered that the sentences be served consecutively.   Defendant appealed.   We reversed the sentences imposed and remanded for re-sentencing.   State v. Milius, No. A–0406–05 (App.Div. Aug. 21, 2007).

On remand, the trial court sentenced defendant to twenty-years of incarceration on both counts, subject to NERA, but ordered that they be served concurrently.   Defendant appealed and we affirmed the sentences imposed.   State v. Milius, No. A–06266–07 (App. Div. June 30, 2009).   The Supreme Court subsequently denied defendant's petition for certification.  State v. Milius, 200 N.J. 503 (2009).

II.

On May 6, 2010, defendant filed a pro se PCR petition.   Defendant alleged that his trial counsel was ineffective because he did not conduct a formal investigation;  failed to challenge the victim's veracity;  did not inform him of the consequences of the plea;  and failed to argue zealously on his behalf at sentencing.   In addition, defendant asked to be permitted to withdraw his guilty plea.

The court assigned counsel to represent defendant, and counsel filed a brief raising the following arguments:

POINT I

PETITIONER IS ENTITLED TO POST CONVICTION RELIEF INCLUDING ORAL ARGUMENT AND AN EVIDENTIARY HEARING BASED ON THE FILING OF THE VERIFIED PETITION AND THE FOREGOING ARGUMENTS

POINT II

PETITIONER IS ENTITLED TO POST CONVICTION RELIEF BASED ON INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

A.  TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ZEALOUSLY ARGUE FOR PETITIONER'S PLEA WITHDRAWAL

B. TRIAL COUNSEL WAS INEFFECTIVE IN FAILING TO ADDRESS, BY OBJECTION OR ANY OTHER MANNER[,] [THE JUDGE'S] REASONS BEHIND THE ANALYSIS OF APPLICABLE AGGRAVATING AND MITIGATING FACTORS, AS WELL [AS] THE JUDGE'S DOUBLE COUNTING OF AGGRAVATING FACTORS 3 AND

9․

POINT III

INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

POINT IV

ADDITIONAL ISSUES RAISED BY PETITIONER IN HIS PETITION FOR POST CONVICTION RELIEF, OR A SUBSEQUENT PRO SE BRIEF, IF ANY, MUST BE CONSIDERED IN SUPPORT OF THE INSTANT PETITION FOR POST CONVICTION RELIEF

POINT V

PETITIONER'S CLAIMS ARE NOT BARRED BY THE PROVISIONS OF RULE 3:22–2 AS THEY ASSERT CONSTITUTIONAL ISSUES [ARISING] UNDER THE STATE CONSTITUTION

Defendant also filed a pro se brief in support of his PCR petition.   Defendant raised the following arguments:

POINT I

NEW JERSEY'S POST–CONVICTION RELIEF PROCEEDING IS THE ANALOGUE TO THE FEDERAL WRIT OF HABEAS CORPUS.   R. 3:22–1 TO –12 CONTROLS THE PROCEDURES FOR POST–CONVICTION RELIEF.

POINT II

THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF PLEA COUNSEL.

[A.] TRIAL COUNSEL FOR THE FIRST DEGREE SEXUAL ASSAULT CHARGES PROVIDED INEFFECTIVE ASSISTANCE BECAUSE HE FAILED TO NOTIFY DEFENDANT THAT HE FACED THE POSSIBILITY OF LIFELONG CIVIL COMMITMENT UNDER THE SEXUALLY VIOLENT PREDATORS ACT, N.J.S.A. § 30:4–27.24 TO –27.38. THE COURT ALSO FAILED TO PROPERLY EXPLAIN CIVIL COMMITMENT.

[B.] THE DEFENDANT RECEIVED MISLEADING AND/OR FALSE INFORMATION OF THE CONSEQUENCES OF HIS PLEA FROM PLEA COUNSEL.

POINT III

TRIAL COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO INTRODUCE EVIDENCE AT SENTENCING, THAT THE SENTENCE WOULD ENTAIL EXCESSIVE HARDSHIP TO DEFENDANT BECAUSE OF HIS AGE, HEALTH, AND PRESENT PHYSICAL CONDITION.

POINT IV

THE DEFENDANT'S SENTENCE WAS INFLUENCED BY MATERIALLY UNTRUE ASSUMPTIONS, AND STATEMENTS CONCERNING HIS CRIMINAL RECORD.

POINT V

IN EVERY FACET OF THIS CASE THE ATTORNEYS FOR THE DEFENDANT [HAVE] COMPROMISED THE TRUTH TO GET THE DEFENDANT TO PLEAD GUILTY, PRE–SENTENCE REPORT, SENTENCING, APPEAL, AND NOW ON THE POST CONVICTION RELIEF, THE TRUTH IS FURTHER ASSAILED.

III.

The PCR court considered the petition on February 9, 2011, and placed its decision on the record on that date.   The court concluded that the plea agreement and transcript of the plea hearing did not support defendant's claims that he was not informed about the nature of an open-ended plea, had been promised a ten-year sentence, and was not made aware of the possibility of civil commitment.   The court concluded that defendant failed to establish a prima facie case of ineffective assistance of counsel on these grounds.

The court also determined that the record did not support defendant's claims that his attorney failed to conduct an adequate investigation of the charges or challenge the victim's veracity.   The court noted that defendant had not explained specifically what actions counsel should have taken or how such actions would have changed the outcome of the case.

The court additionally noted that in defendant's sentencing appeal, appellate counsel had challenged the sentence arguing that the record did not support the trial court's finding of aggravating factor three, N.J.S.A. 2C:44–1(a)(3) (risk that defendant will reoffend).   Counsel also had argued that mitigating factor nine applied, N.J.S.A. 2C:44–1(b)(9) (character and attitude of defendant indicate he is unlikely to commit another offense).   Furthermore, appellate counsel had argued that the sentencing court erroneously considered a sexual offense charged in the State of Florida that had been downgraded to a nonsexual offense.

The PCR court pointed out that this court had considered these arguments and affirmed the sentence.   The court therefore found that any claim raised in the petition concerning issues raised in the sentencing appeal were barred by Rule 3:22–5, because those issues had previously been adjudicated.

The court additionally found that the allegations of ineffective assistance of counsel at sentencing failed to meet the standards established by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984).   The court determined that counsel's handling of the matter did not fall below an objective standard of reasonableness, and defendant had not shown that he was prejudiced by any of the alleged errors.

The court noted that there was overwhelming evidence of defendant's guilt, including a statement that defendant gave to law enforcement on May 21, 2004, in which he admitted performing oral sex on the victim, probably about ten times over the years, and digitally penetrating the victim when she was ten-years old.   The court said this evidence made it unlikely defendant would not have pled guilty and insisted on going to trial.

The court also denied defendant's application to withdraw his plea.   The court considered the application in light of the criteria enunciated by State v. Slater, 198 N.J. 145, 158–62 (2009).   The court concluded that defendant had not asserted a colorable claim of innocence;  failed to establish sound reasons to withdraw his plea;  the plea was entered pursuant to a negotiated agreement;  and the State would be prejudiced if defendant were allowed to withdraw the plea.

The court rejected the other arguments raised by defendant in his pro se petition and entered an order dated February 9, 2011, denying PCR. This appeal followed.

IV.

Defendant raises the following arguments for our consideration:

POINT I

THE COURT ERRED IN APPLYING THE PROCEDURAL BAR OF R. 3:22–5 IN DENYING POST–CONVICTION RELIEF BECAUSE THE DEFENDANT'S PETITION RAISED FOURTEENTH AMENDMENT CONSTITUTIONAL ISSUES THAT WERE NOT ENCOMPASSED ON DIRECT APPEAL.

POINT II

THE ORDER DENYING POST–CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S SENTENCE VACATED BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING THAT HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR PLEA PROCEEDING WHICH ACCURATELY INFORMED HIM ABOUT HIS CRIMINAL EXPOSURE;  HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR SENTENCING PROCEEDING IN WHICH APPLICABLE MITIGATING FACTORS ARE CONSIDERED AND INAPPLICABLE AGGRAVATING FACTORS ARE REJECTED[;] AND HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR PRESENTENCE REPORT THAT IS FREE FROM BIAS AND UNSUBSTANTIATED HEARSAY, WERE REJECTED.

POINT III

SINCE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE BY TRIAL COUNSEL, THE COURT MISAPPLIED ITS DISCRETION IN DENYING POST–CONVICTION RELIEF WITHOUT AFFORDING THE DEFENDANT A FULL EVIDENTIARY HEARING.

POINT IV

THE COURT'S RULING DENYING POST–CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

POINT V

DEFENDANT REASSERTS ALL OTHER ISSUES RAISED IN DEFENDANT'S PRO SE PETITION FOR POST–CONVICTION RELIEF AND IN PCR COUNSEL'S BRIEF IN SUPPORT OF POST–CONVICTION RELIEF.

(A) APPELLATE COUNSEL WAS INEFFECTIVE.

(B) POST–CONVICTION RELIEF COUNSEL WAS INEFFECTIVE.

(C) DEFENDANT'S GUILTY PLEA SHOULD BE SET ASIDE PURSUANT TO THE CRITERIA ARTICULATED IN STATE V. SLATER, 198 N.J. 145 (2009).

We are convinced from our review of the record that these arguments are entirely without merit.   We affirm the denial of PCR substantially for the reasons stated by the PCR court in the decision placed on the record on February 9, 2011.   We add the following.

A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland, supra, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984), and adopted by our Supreme Court.  State v. Fritz, 105 N.J. 42, 58 (1987).   In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient.   Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L. Ed.2d at 693.   Second, the defendant must show that counsel's deficient performance prejudiced his defense.  Ibid.

The Strickland test applies to challenges to guilty pleas based on the ineffective assistance of counsel.  Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L. Ed.2d 203, 210 (1985).   Defendant must show that his attorney's handling of the matter fell below an objective standard by reasonableness.  Id. at 57, 106 S.Ct. at 369, 88 L. Ed.2d at 209.   Defendant also must show that but for his attorney's constitutionally ineffective handling of the matter, there is reasonable probability he would not have pled guilty and would have insisted on going to trial.  Id. at 59, 106 S.Ct. at 370, 88 L. Ed.2d at 210.   See State v. DiFrisco, 137 N.J. 434, 457 (1994).

Here, the record supports the PCR court's findings that defendant was adequately informed about the nature of an open-ended plea, and was never promised he would receive a ten-year sentence.   The record also supports the court's finding that defendant was fully informed of the possibility he could be civilly committed after completion of his custodial sentence.

Indeed, the transcript of the plea hearing reveals the following:

[THE COURT]:  Mr. Milius, you've reviewed this plea form with Mr. Butler, your attorney?

[DEFENDANT]:  Yes, I have.

[THE COURT]:  You're pleading guilty to Count 1 and Count 2 of this indictment, 04–7–1245.   Each of them charges you with the first-degree crime of aggravated sexual assault.

[DEFENDANT]:  Yes.

[THE COURT]:  The maximum penalty for each of these offenses is 20 years in State[ ] prison and a $100,000 fine.   Do you understand that?

[DEFENDANT]:  Yes, I do.

[THE COURT]:  So the maximum sentence that you could receive as a result of this plea is 40 years in prison and a $200,000 fine.   Do you understand that?

[DEFENDANT]:  Yes, sir.

[THE COURT]:  The State has agreed on your sentencing date to dismiss – is it 2 and 4 or 2 and 3?

[ASSISTANT PROSECUTOR]:  3 and 4.

[THE COURT]:  —- Counts 3 and 4 of the indictment.   Do you understand that?

[DEFENDANT]:  Yes, I do.

[THE COURT]:  But the plea otherwise is open-ended;  and what that means is that sentencing will be left entirely to the Court's discretion.   That means I could impose ten years, which is the minimum, or 20 years, which is the maximum, and the only promise that's made is that the sentences on each of the offenses will be concurrent with each other.   Do you understand that?

[DEFENDANT]:  Yes, I do.

[THE COURT]:  But we also know that these offenses are enumerated in the statute as No Early Release Act crimes.   Do you know what that means?

[DEFENDANT]:  Yes.

[THE COURT]:  That means that you will be required by statute to serve 85 percent of whatever sentence is imposed before you're eligible to be considered for parole.   Do you understand that?

[DEFENDANT]:  Yes, I do.

․

[THE COURT]:  ․ And lastly, do you understand that if you're convicted of this offense that, upon your release or prior to your release, the Office of the Attorney General can make an application for a civil commitment, alleging that you are a dangerous, violent sexual predator, and seek a civil commitment involuntarily against you for the rest of your life.

Do you understand that?

[DEFENDANT]:  Yes, I do.

Defendant also claimed that his attorney was deficient because he failed to conduct an adequate pre-trial investigation of the charges.   Defendant asserts that his attorney did not interview essential witnesses or explore the possibility that the victim was “coached to lie” by law enforcement officers.

The PCR court correctly rejected these arguments, noting that defendant did not submit any affidavits or certifications in support of these claims.   The court also correctly found that defendant had not shown he was prejudiced by counsel's alleged errors because there was overwhelming evidence of defendant's guilt, which included the statement defendant gave to law enforcement, in which he admitted that he sexually assaulted B.P.

Defendant additionally claimed that he was denied the effective assistance of counsel because his trial attorney failed at sentencing to argue all applicable mitigating factors and object to allegedly inapplicable mitigating factors;  did not object to certain statements in the pre-sentence report which were inadmissible or prejudicial;  and failed to file a pre-sentencing motion to permit withdrawal of the plea.   Defendant's arguments that the PCR court erred in rejecting these claims are without sufficient merit to warrant discussion.   R. 2:11–3(e)(2).

Similarly without merit is defendant's contention that the PCR court erred by failing to conduct an evidentiary hearing on his petition.   An evidentiary hearing was not required here because defendant did not present a prima facie case of ineffective assistance of counsel.  State v. Preciose, 129 N.J. 451, 462 (1992).

We are also convinced that the PCR court correctly refused to permit defendant to withdraw his plea.   As we have explained, the court considered defendant's application in light of the criteria set forth in Slater, supra, 198 N.J. 158–62.   As the court found, defendant never asserted a colorable claim of innocence and did not present a sound basis for withdrawal of his plea.   Moreover, the plea was entered as a result of a negotiated agreement with the State, and the State would be prejudiced if defendant were permitted to withdraw the plea.

Affirmed.

PER CURIAM