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(NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3839-07T43839-07T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEVIN L. WIGGINS a/k/a KEVIN LOUIS WIGGINS, RAUL WIGGINS, Defendant-Appellant. ___________________________________

Submitted September 15, 2009 - Decided Before Judges Fuentes and Gilroy. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-03-0647. Yvonne Smith Segars, Public Defender, attorney for appellant (Karen A. Lodeserto, Designated Counsel, of counsel and on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief). PER CURIAM Defendant Kevin L. Wiggins appeals from the November 16, 2007 order that denied his petition for post-conviction relief (PCR). We affirm. On a date between September 17, 2002, and October 3, 2002, defendant, then a forty-two-year-old security guard employed at an assisted-living facility in Bergen County, unlawfully entered the room of an eighty-four-year-old

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female resident and sexually assaulted the resident. On March 20, 2003, a Bergen County Grand Jury charged defendant with first-degree aggravated sexual assault, N.J.S.A. 2C:18-2 (Count Two); first-degree aggravated sexual assault, N.J.S.A. 2C:24-8 (Count Five). On November 3, 2003, defendant pled guilty to Count One in exchange for the State recommending a fourteenyear term of imprisonment, subject to an 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA); a five-year period of supervision upon parole; and community supervision for life pursuant to Megan's Law. On February 27, 2004, the trial court, finding aggravating sentencing factors 186 N.J. 256 (2006). On May 31, 2006, defendant filed a pro se petition for PCR. On July 27, 2007, assigned counsel filed a supplemental memorandum of law in support of the petition, raising the following arguments: POINT I. DEFENDANT MUST BE ALLOWED TO RETRACT HIS PLEA OF GUILTY BECAUSE HE WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL. A. DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS ATTORNEY'S FAILURE TO EXPLAIN THE PROCEDURES AVAILABLE TO COUNTERACT POTENTIAL JUROR PREJUDICES AGAINST DEFENDANTS ACCUSED OF SEXUAL CRIMES. B. DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO PROPERLY ASCERTAIN A FACTUAL BASIS, THEREBY ALLOWING HIM TO ENTER A PLEA OF GUILTY TO A CRIME HE DID NOT COMMIT. C. DEFENDANT CAN SHOW THAT THERE IS A REASONABLE PROBABILITY THAT, BUT FOR HIS COUNSEL'S ERRORS, HE WOULD NOT HAVE PLEADED GUILTY AND WOULD HAVE INSISTED ON GOING TO TRIAL. POINT II. DEFENDANT MUST BE ALLOWED TO RETRACT HIS PLEA OF GUILTY BECAUSE IT WAS NOT ENTERED KNOWINGLY AND WITH AN UNDERSTANDING OF THE CONSEQUENCES. The trial court heard argument on the petition on November 16, 2007. On the same day, trial Judge Carroll entered an order, supported by a written decision, denying the petition. On appeal, defendant argues: POINT I. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POSTCONFICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL. A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST[]CONVICTION RELIEF.
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B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT [APPLY] TO APPELLANT'S CASE. C. THE DEFENDANT MUST BE ALLOWED TO RETRACT HIS PLEA OF GUILTY BECAUSE HE WAS DENIED HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL. 1. DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL BY HIS ATTORNEY'S FAILURE TO EXPLAIN THE PROCEDURES AVAILABLE TO COUNTERACT POTENTIAL PREJUDICES AGAINST DEFENDANTS[] ACCUSED OF SEXUAL CRIMES. 2. DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO PROPERLY ASCERTAIN A FACTUAL BASIS, THEREBY ALLOWING HIM TO ENTER A PLEA OF GUILTY TO A CRIME HE DID NOT COMMIT. 3. DEFENDANT CAN SHOW THAT THERE IS A REASONABLE PROBABILITY THAT, BUT FOR HIS COUNSEL'S ERRORS, HE WOULD NOT HAVE PLEADED GUILTY AND WOULD HAVE INSISTED ON GOING TO TRIAL. POINT II. DEFENDANT MUST BE ALLOWED TO RETRACT HIS PLEA OF GUILTY BECAUSE IT WAS NOT ENTERED KNOWINGLY AND WITH AN UNDERSTANDING OF THE CONSEQUENCES. The decision whether to conduct an evidentiary hearing on a claim of ineffective assistance of counsel rests primarily on the trial court's determination of whether a defendant has made a prima facie showing of the claim. State v. Preciose, 129 N.J. 451, 462 (1992). Rule 3:22-1 does not require that an evidentiary hearing be granted in every PCR proceeding. Ibid. Where a "court perceives that holding an evidentiary hearing will not aid the court's analysis of whether the defendant is entitled to post-conviction relief, . . . or that the defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, . . . then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (internal citations omitted), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.2d 88 (1997). Claims of ineffective assistance of counsel are governed by the standards set forth in Strickland v. Washington. State v. Fritz, 105 N.J. 42, 58 (1987) (holding the precepts of Strickland have been adopted by New Jersey). For a defendant to establish a prima facie case of ineffective assistance of counsel under Strickland, the defendant must show that defense "counsel's performance was deficient," and that "there exists 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Preciose, supra, 129 N.J. at 463-64 (1992) (quoting Strickland, supra, 466 U.S. at 694; 104 S. Ct. at 2068, 80 L. Ed. 2d at 698); see also State v. Allegro, 193 N.J. 352, 366 (2008). "'The first prong of the [Strickland] test is satisfied by a showing that counsel's acts or omissions fell outside the wide range of professionally competent assistance considered in light of all the circumstances of the case.'" Allegro,

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supra, 193 N.J. at 366 (quoting State v. Castagna, 187 N.J. 293, 314 (2006)). In assessing counsel's representation, there is a strong presumption that 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. Accordingly, acts or omissions of counsel must amount to more than mere tactical strategy. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694-95. To prove the second prong of Strickland, a defendant must prove "that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Allegro, supra, 193 N.J. at 367 (quoting State v. Loftin, 191 N.J. 172, 198 (2007)). It is "an exacting standard: '[t]he error committed must be so serious as to undermine the court's confidence in the jury's verdict or the result reached.'" Ibid. (quoting Castagna, supra, 187 N.J. at 315). We have considered defendant's arguments in light of the record and applicable law. We conclude that the arguments 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 Carroll in his written opinion of November 16, 2007.

Affirmed. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed.2d 674, 693 (1984). (continued) (continued) 8 A-3839-07T4 September 23, 2009 0x01 graphic

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