RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0273-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

P.M.B.,

Defendant-Appellant.

______________________________

Submitted August 15, 2017 – Decided

Before Judges Messano and Sumners.

On appeal from Superior Court of New Jersey, 

Law Division, Salem County, Indictment No. 10-

04-0183.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Peter B. Meadow, Designated 

Counsel, on the brief).

John T. Lenahan, Salem County Prosecutor, 

attorney for respondent (Derrick Diaz, 

Assistant Prosecutor, of counsel and on the 

brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant P.M.B. pled guilty to first-degree aggravated 

sexual assault, N.J.S.A. 2C:14-2(a), admitting to anally 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.

September 27, 2017
2 A-0273-15T2

penetrating his stepson who was under the age of thirteen at the 

time. The judge sentenced defendant to a seven-year term of 

imprisonment, subject to an 85% period of parole ineligibility 

under the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant 

filed a pro se petition for post-conviction relief (PCR), alleging 

numerous trial errors and the ineffective assistance of counsel

(IAC). The judge, who was the same judge that accepted defendant's 

guilty plea and imposed sentence, appointed PCR counsel.1

During oral argument on the petition, defendant contended 

that trial counsel failed to adequately review discovery with him 

and "pushed him" into pleading guilty. Defendant also argued that 

the plea form contained trial counsel's representation that he 

would ask the judge to impose a lesser period of incarceration. 

However, at sentencing, counsel withdrew any request for a lesser 

sentence, explaining defendant was found to have compulsive sexual 

behaviors, the Adult Diagnostic and Testing Center at Avenel 

(Avenel) recommended he receive treatment, and defendant 

affirmatively stated that he wished to avail himself to the 

treatment. Lastly, defendant argued that trial counsel failed to 

 

1 Defendant's direct appeal was limited to his sentence, and we 

affirmed but vacated the restitution award. The PCR judge's 

written opinion indicates the restitution award was vacated on 

remand.
3 A-0273-15T2

provide adequate advice regarding defendant's ability to have 

parenting time with his biological daughter after completing his 

sentence. PCR counsel referenced a letter to defendant, written 

by trial counsel approximately five months after sentencing.2

The judge ordered a plenary hearing on the PCR petition. 

Trial counsel and defendant both testified. In his written opinion 

following the evidentiary hearing, the judge concluded defense 

counsel was more credible than defendant was. Based upon counsel's 

testimony, the plea forms and the colloquy at the time of 

defendant's guilty plea, the judge found defendant was fully aware 

of the consequences of his guilty plea, including limits on 

defendant's "contact with children." The judge also found that 

trial counsel adequately met with defendant and reviewed the 

discovery in the case and provided correct information regarding 

defendant's sentence exposure. Furthermore, the judge rejected 

defendant's assertion that his wife had a vendetta against him and 

 

2 The letter is in the State's confidential appendix. Addressed 

to defendant, it provides in full:

All the information you're looking for should 

be in the Pre-Sentence Report I previously 

forwarded to you. Obviously there is no 

contact with your victim. There was no 

prohibition on future visits with your other 

children.
4 A-0273-15T2

coerced the victim to "fabricate the allegations" against 

defendant. The judge accepted counsel's determination that the 

State had an "extremely strong case."

Lastly, the judge concluded that even if trial counsel should 

have advocated for a lesser period of incarceration, defendant 

suffered no prejudice. The judge noted that defendant was 

sentenced as a second-degree offender at the "midpoint of the 

second degree range." Implicitly, the judge concluded he would 

have imposed the same sentence even if counsel had asked for a 

lesser period of incarceration. 

The judge entered an order denying the petition, and this 

appeal followed.

Defendant argues the judge erred in dismissing the petition 

because he established trial counsel provided ineffective 

assistance in that counsel failed to properly investigate the 

case, gave him incorrect advice regarding the consequences of his 

guilty plea and failed to argue for a lesser sentence. As a 

result, defendant did not knowingly and voluntarily enter his 

guilty plea. 

The standards that guide our review are well-known. To 

establish an IAC claim, a defendant must satisfy the two-prong 

test formulated in Strickland v. Washington, 466 U.S. 668, 687, 

104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted 
5 A-0273-15T2

by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). 

First, he must demonstrate "counsel made errors so serious that 

counsel was not functioning as the 'counsel' guaranteed . . . by 

the Sixth Amendment." Id. at 52 (quoting Strickland, supra, 466 

U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). 

To satisfy prong one, [a defendant] ha[s] to 

"overcome a 'strong presumption' that counsel 

exercised 'reasonable professional judgment'

and 'sound trial strategy' in fulfilling his 

responsibilities." "[I]f counsel makes a 

thorough investigation of the law and facts 

and considers all likely options, counsel's 

trial strategy is 'virtually 

unchallengeable.'" Mere dissatisfaction with 

a "'counsel's exercise of judgment'" is 

insufficient to warrant overturning a 

conviction. 

[State v. Nash, 212 N.J. 518, 542 (2013) 

(third alteration in original) (citations 

omitted).]

Second, a defendant must prove that he suffered prejudice due 

to counsel's deficient performance. Strickland, supra, 466 U.S.

at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must 

show by a "reasonable probability" that the deficient performance 

affected the outcome. Fritz, supra, 105 N.J. at 58. "'A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome.'" State v. Pierre, 223 N.J. 560, 583 

(2015) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 

2068, 80 L. Ed. 2d at 698). "If [a] defendant establishes one 
6 A-0273-15T2

prong of the Strickland-Fritz standard, but not the other, his 

claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280 

(2012).

The Strickland/Fritz standard applies to IAC claims regarding 

the plea bargaining process. State v. Gaitan, 209 N.J. 339, 350-

51 (2012). "In the specific context of showing prejudice after

having entered a guilty plea, a defendant must prove 'that there 

is a reasonable probability that, but for counsel's errors, [he 

or she] would not have pled guilty and would have insisted on 

going to trial.'" Id. at 351 (alteration in original) (emphasis 

added) (quoting State v. Nuñez-Valdéz, 200 N.J. 129, 139 (2009).

Regarding inadequate investigation, trial counsel admitted 

at the PCR hearing that he did not interview the victim or his 

mother. However, he reviewed the evidence with defendant, 

including discussing apparent "tapes" of their statements to law 

enforcement. Counsel also testified that defendant provided him 

with no names of potential witnesses. Based on the testimony at 

the PCR hearing and the entire record, the judge concluded trial 

counsel's performance in this regard was not deficient.

"In reviewing a PCR court's factual findings based on live 

testimony, an appellate court applies a deferential standard; it 

'will uphold the PCR court's findings that are supported by 

sufficient credible evidence in the record.'" Pierre, supra, 223 
7 A-0273-15T2

N.J. at 576 (quoting Nash, supra, 212 N.J. at 540). We find no 

reason to disturb the judge's findings and conclusions in this 

regard. 

At sentencing, trial counsel told the judge he was withdrawing 

any application for a lesser sentence because defendant was not 

opposed to the maximum amount of treatment and he would not be 

admitted to Avenel unless the custodial portion of the sentence 

was at least seven years. Counsel was not questioned about this 

during the evidentiary hearing. 

As defendant correctly points out, that interpretation of 

N.J.S.A. 2C:47-3(h) is incorrect, and the State concedes this 

point. Only sentences of seven years or less permit a defendant 

to serve the term of incarceration at Avenel. N.J.S.A. 2C:47-

3(h)(1). 

However, the judge explained that the sentence actually 

imposed reflected a careful weighing of the aggravating and 

mitigating sentencing factors. He noted that defendant was being 

sentenced for a crime one degree lower than the crime to which he 

pled guilty. As a result, the judge implicitly found defendant 

suffered no prejudice by counsel's lapse in this regard. Based 

on the judge's credibility determinations, there is no credible 

evidence in the record supporting a conclusion that defendant 

would not have pled guilty but for counsel's erroneous statement 
8 A-0273-15T2

regarding an Avenel sentence. As a result, we reject this as a 

basis to reverse.

At the PCR hearing, trial counsel explained that defendant's 

conviction would not necessarily foreclose parenting time with his 

daughter. Counsel displayed familiarity with N.J.S.A. 9:2-4.1(a) 

("[A] person convicted of sexual assault . . . shall not be 

awarded the custody of or visitation rights to any minor 

child . . . except upon a showing by clear and convincing evidence 

that it is in the best interest of the child for custody or 

visitation rights to be awarded."). The post-sentencing letter 

to defendant does not state anything that is contrary to the 

statute. 

Moreover, at sentencing, defendant was served with a "Sex 

Offense Restraining Order," pursuant to N.J.S.A. 2C:14-12. It 

clearly advised defendant that he was restrained from contacting 

the victim and barred from the residence of the victim. The 

victim's mother is also the mother of defendant's biological 

daughter, who shares the same home with the victim. Defendant 

cannot claim he was ignorant of the consequences of his guilty 

plea in this regard.

In a pro se supplemental brief, defendant argues that PCR 

counsel failed to raise, and the judge failed to address, a number 

of issues asserted in defendant's pro se brief in support of the 
9 A-0273-15T2

petition. Most of these claims involve alleged inadequacies in 

the investigation, the indictment and grand jury process, and a 

search warrant. Defendant also alleges a lack of corroborative 

forensic evidence and allegedly contradictory statements made by 

the victim. 

The PCR judge did not specifically address these claims, 

except to reject defendant's allegation that his wife had a 

"vendetta" against him and coerced the victim into fabricating the 

story of sexual abuse. We might otherwise remand the matter for 

the PCR court to specifically address the issues raised in the pro 

se submission. See State v. Webster, 187 N.J. 254, 258 (2006) 

(reversing and remanding because PCR counsel did not reference the 

arguments raised in defendant's pro se petition and the judge did 

not comment on them in any way). 

However, it is quite clear that defendant could have asserted 

these claims on direct appeal, but did not, and therefore they are 

procedurally barred on PCR review. R. 3:22-4. More importantly, 

having found no reason to set aside defendant's guilty plea based 

upon the ineffective assistance of counsel, and having rejected 

any other reason to conclude the guilty plea was not voluntarily 

and knowingly entered, these arguments about alleged infirmities 

and the adequacy of the evidence are deemed waived. See State v. 

Davila, 443 N.J. Super. 577, 585 (App. Div. 2016) (quoting State 
10 A-0273-15T2

v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988) ("Generally, 

a guilty plea constitutes a waiver of all issues which were or 

could have been addressed by the trial judge before the guilty 

plea.").

Affirmed.