                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0925-18T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

PAUL W. BENSON,

     Defendant-Appellant.
______________________________

                    Argued October 29, 2019 – Decided December 10, 2019

                    Before Judges Yannotti and Firko.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Bergen County, Accusation No. 10-09-1568.

                    Michael C. Woyce argued the cause for appellant
                    (Murphy & Woyce, attorneys; Michael C. Woyce, on
                    the brief).

                    Nicole Paton, Assistant Prosecutor, argued the cause
                    for respondent (Mark Musella, Bergen County
                    Prosecutor, attorney; Nicole Paton, of counsel and on
                    the brief).

PER CURIAM
      Defendant appeals from an order of the Law Division dated October 19,

2018, which denied his motion to withdraw his guilty plea and his petition for

post-conviction relief. We affirm.

                                        I.

      In April and July 2009, defendant shared several files containing child

pornography in an online chat room with an undercover detective of the Suffolk

County Police Department. The detective subsequently referred the matter to

the Bergen County Prosecutor's Office, which conducted an investigation that

identified defendant's residence as the source of the child pornography files.

      On October 15, 2009, law enforcement executed a search warrant on

defendant's home and arrested defendant.       Defendant's computer contained

numerous images of child pornography, which depicted, among other things,

full body nudity and sexual assaults.

      Defendant was charged in a complaint-warrant with second-degree

endangering the welfare of a child by transmitting child pornography, N.J.S.A.

2C:24-4(b)(5)(a); and fourth-degree endangering the welfare of a child by

possessing child pornography, N.J.S.A. 2C:24-4(b)(5)(b).              Thereafter,

defendant's attorney negotiated a plea agreement, which required defendant to

plead guilty to a single charge of third-degree endangering the welfare of a child


                                                                          A-0925-18T4
                                        2
under N.J.S.A. 2C:24-4(a).1 The State agreed to recommend a sentence of 364

days in county jail; compliance with the registration and community notification

requirements of 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(a).

       On September 27, 2010, defendant pled guilty to one count of

endangering the welfare of a child under N.J.S.A. 2C:24-4(a), as charged in

Accusation No. 10-09-1568. At the plea hearing, defendant provided the factual

basis for his plea in response to questions by his attorney and the assistant

prosecutor:

              [Defense Counsel]: Directing your attention to the
              accusation in this case, the specific allegations therein,
              do you admit, and is it true, that, on April 3, 2009 and
              July 24, 2009, from your computer at your home in
              Woodcliff Lake, by virtue of a file trading program, that
              you knowingly shared images and videos containing
              child pornography to another person who happened to
              be an undercover law enforcement person, which
              images depicted children under the age of [sixteen] in
              acts of sexual penetration and nudity for purposes of
              sexual stimulation, and that, as a result of that, you
              impaired the morals of the children engaged in those


1
    N.J.S.A. 2C:24-4(a) was amended in 2013. In relevant part, the 2013
amendment divided section (a) into subsections (1) and (2). L. 2013, c. 51, §
13. The current version of subsection (1) is substantially the same as the statute
in effect when defendant committed the offense. Compare N.J.S.A. 2C:24-4(a)
(2010), with N.J.S.A. 2C:24-4(a)(1) (2019). In this opinion, we cite to the 2010
version of the statute.
                                                                           A-0925-18T4
                                          3
            acts and therefore endangered the welfare of those
            children; do you admit that or do you deny that?

            [Defendant]: I admit that.

            [Defense counsel]: Is it true?

            [Defendant]: Yes, sir.

            ...

            [Assistant Prosecutor]: Th[e]re – were a lot of facts in
            that particular question. You weren't – you're admitting
            to every single component of that; is that correct?

            [Defendant]: Yes, sir.

            [Assistant Prosecutor]: And these children that
            appeared to be under the age of [sixteen], they, in fact,
            looked like they were real; those weren't photo-shopped
            or anything like that to your knowledge; is that correct?

            [Defendant]: That is correct.

            [Assistant Prosecutor]: Many of them looked like real
            children.

            [Defendant]: Yes, sir.

      The judge accepted the plea. On May 20, 2011, the judge sentenced

defendant to 364 days in jail, required compliance with Megan's Law, sentenced

defendant to PSL, and imposed applicable fines and penalties.

      In 2012, the trial court found that for purposes of Megan's Law,

defendant's risk assessment score placed him in the "middle range" of "risk to

                                                                        A-0925-18T4
                                         4
reoffend." The resulting tier classification required notification to local law

enforcement, educational institutions and other organizations, and defendant's

placement on the Internet registry.        Defendant appealed the trial court's

determination. We remanded the matter for classification of defendant in the

"low range" of "risk to reoffend" and application of appropriate registration and

notification standards. In re Registrant P.B., 427 N.J. Super. 176, 189 (App.

Div. 2012).

      In June 2018, defendant filed a motion to vacate his guilty plea and a

petition for post-conviction relief (PCR). The PCR judge heard oral argument

and denied both applications in a written opinion. The judge memorialized his

decision in an order dated October 19, 2018. This appeal followed. On appeal,

defendant argues:

              POINT I
              THE PCR COURT ERRED IN CONCLUDING THAT
              THE LANGUAGE OF [N.J.S.A. 2C:24-4(a)], THE
              GENERAL ENDANGERING THE WELFARE OF A
              CHILD STATUTE, PROHIBITED THE POSSESSION
              AND DISTRIBUTION OF CHILD PORNOGRAPHY
              WHICH IS SPECIFICALLY PENALIZED IN A
              SEPARATE AND DISTINCT SUBSECTION.

              POINT II
              THE PCR COURT ERRED IN CONCLUDING THAT
              THE FACTUAL BASIS MET THE ELEMENTS
              UNDER     [N.J.S.A.  2C:24-4(a)] WHERE


                                                                         A-0925-18T4
                                       5
            [DEFENDANT] DID NOT ENGAGE IN PROHBITED
            SEXUAL CONDUCT.

            POINT III
            THE PCR COURT ERRED IN CONCLUDING THAT
            THERE WAS A FUNDAMENTAL INJUSTICE
            WHERE [DEFENDANT] WAS [SENTENCED TO
            PSL] AS A RESULT OF PLEA COUNSEL
            COUNSELLING HIM TO ACCEPT A PLEA TO AN
            OFFENSE FOR WHICH A FACTUAL BASIS
            COULD NOT BE ELICITED.

            POINT IV
            THE PCR COURT ERRED IN FINDING THAT PLEA
            COUNSEL'S   PERFORMANCE      WAS     NOT
            DEFECTIVE AND THEREBY DENYING THE
            PETITION   WIHTOUT    AN    EVIDENTIARY
            HEARING WHERE [DEFENDANT] WAS:

            1) MISINFORMED [ABOUT] THE APPLICABILITY
            OF [PSL];

            2) ADVISED THAT [A] SENTENCE UNDER
            [N.J.S.A. 2C:24-4(a)] OR [N.J.S.A. 2C:24-4(b)(5)(B)]
            WOULD INCLUDE THE SPECIAL SENTENCE OF
            PAROLE SUPERVISION; AND

            3) ADVISED TO TAKE A PLEA TO [N.J.S.A. 2C:24-
            4(a)] WITHOUT HAVING COMMITTED AN ACT
            OF "SEXUAL CONDUCT."

                                       II.

      We turn first to defendant's argument that the trial court erred by denying

his motion to vacate the guilty plea. He contends he did not provide an adequate

factual basis for a plea to endangering the welfare of a child under N.J.S.A.

                                                                         A-0925-18T4
                                       6
2C:24-4(a). In October 2009, when defendant committed the offense, the statute

provided that:

            Any person having a legal duty for the care of a child
            or who has assumed responsibility for the care of a
            child who engages in sexual conduct which would
            impair or debauch the morals of a child, or who causes
            the child harm that would make the child an abused or
            neglected child . . . is guilty of a crime of the second
            degree. Any other person who engages in conduct or
            who causes harm as described in this subsection to a
            child under the age of [sixteen] is guilty of a crime of
            the third degree.

            [Ibid.]

Defendant contends possession and distribution of child pornography is not

"sexual conduct which would impair or debauch the morals of a child," under

N.J.S.A. 2C:24-4(a). We disagree.

      A person cannot be convicted for violating a criminal statute "unless he

has been convicted at trial or he has admitted his guilt through the entry of a

plea." State v. Tate, 220 N.J. 393, 405 (2015). "[A]t a plea hearing, a judge

must be satisfied that the defendant has given a factual account that makes him

guilty of the crime." Ibid. (citing R. 3:9-2). "A factual basis for a plea must

include either an admission or the acknowledgement of facts that meet 'the

essential elements of the crime.'" Id. at 406 (quoting State ex rel. T.M., 166 N.J.

319, 333 (2001)).

                                                                           A-0925-18T4
                                        7
      "The remedy for an inadequate factual basis is an order vacating the guilty

plea and restoring both parties to their positions prior to the trial court's

acceptance of the plea"; that is, "the plea, the judgment of conviction, and the

sentence must be vacated, the dismissed charges [must be] reinstated, and

defendant [should be] allowed to re-plead or to proceed to trial." State v.

Campfield, 213 N.J. 218, 232 (2013) (citing State v. Barboza, 115 N.J. 415, 420

(1989)).

      "The standard of review of a trial court's denial of a motion to vacate a

guilty plea for lack of an adequate factual basis is de novo." Tate, 220 N.J. at

403-04 (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378

(1995)). We exercise de novo review because we are "in the same position as

the trial court [whe]n assessing whether the factual admissions during a plea

colloquy satisfy the essential elements of an offense." Id. at 404.

      Furthermore, to determine whether defendant's factual admissions

established the essential elements of the offense, we must interpret N.J.S.A.

2C:24-4(a). Our interpretation of the statute is de novo. Id. at 405 (citing

Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215 N.J. 242, 253

(2013)). Therefore, we owe no deference to the trial court's legal conclusions.

Willingboro Mall, 215 N.J. at 253.


                                                                         A-0925-18T4
                                        8
      "The role of [a c]ourt in statutory interpretation 'is to determine and

effectuate the Legislature's intent.'" Marino v. Marino, 200 N.J. 315, 329 (2009)

(quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553 (2009)). We begin

our analysis by considering the plain language of the statute, reading the words

in accordance with their ordinary meaning, and "seeking further guidance only

to the extent that the Legislature's intent cannot be derived from the words it has

chosen." Ibid. (quoting Pizzullo v. N.J. Mfrs. Ins., 196 N.J. 251, 264 (2008)).

      As noted previously, N.J.S.A. 2C:24-4(a) provided that a person may be

found guilty of endangering the welfare of a child if he engages in "sexual

conduct which would impair or debauch the morals of the child . . . ." The term

"sexual conduct" is not defined in the statute, but it includes "sexual assaults

and sexual contact." State v. Perez, 177 N.J. 540, 553 (2003).

      The statute also encompasses some "forms of sexual conduct [that] are by

their nature more ambiguous, and involve no touching of the child . . . ." State

v. Bryant, 419 N.J. Super. 15, 24 (App. Div. 2011). Indeed, in State v. Hackett,

166 N.J. 66, 70-71, 76 (2001), the Court held that the defendant engaged in

"sexual conduct" under N.J.S.A. 2C:24-4(a), when he exposed his genitals in

front of a window in his home, where he could be seen by children waiting

outside. See also State v. White, 105 N.J. Super. 234, 236-37 (App. Div. 1969)


                                                                           A-0925-18T4
                                        9
(holding that a person who displayed explicit photos of adults to children

engaged in "sexual conduct" under N.J.S.A. 2A:96-3, the predecessor to

N.J.S.A. 2C:24-4(a)).

      Here, defendant's factual admissions established that his possession of

child pornography was "sexual conduct." Defendant admitted he possessed and

distributed images of children, some of whom were less than sixteen years old.

The pornography included depictions of children who were naked and others

being subjected to acts of sexual penetration. Some of the children appeared to

be under the age of sixteen. Defendant admitted he possessed these images for

sexual stimulation.

      Defendant's factual admissions also established that his conduct "would

impair or debauch the morals of the child . . . ." N.J.S.A. 2C:24-4(a). As we

noted in P.B., a market for child pornography "is essential in order to support

[its] production and distribution." P.B., 427 N.J. Super. at 183 (citing United

States v. Meiners, 485 F.3d 1211, 1213 (9th Cir. 2007); In re Registrant J.W.,

410 N.J. Super. 125, 140 (App. Div. 2009)).

      By participating in the market for child pornography, defendant fostered

the production of these materials. Therefore, he engaged in conduct "which

would impair or debauch the morals" of the children who were used to create


                                                                       A-0925-18T4
                                     10
these pornographic images. In his plea colloquy, defendant admitted that he

impaired the morals of the children depicted in the pornography he possessed

and distributed.

      In arguing that his factual admissions did not establish a basis for

conviction under N.J.S.A. 2C:24-4(a), defendant relies upon State v. Sisler, 177

N.J. 199 (2003). Defendant's reliance upon Sisler is misplaced. In that case,

the Court held that in N.J.S.A. 2C:24-4(b), the Legislature intended to impose

more severe penalties upon individuals who create, distribute, or sell child

pornography, than upon individuals who possess such materials. Id. at 207.

That may be so, but possession and distribution of child pornography

nevertheless remains "sexual conduct that impairs or debauches the morals of

the child" under N.J.S.A. 2C:24-4(a).

      In support of his argument, defendant also relies upon P.B. As noted

previously, in that case, defendant challenged the risk assessment analysis used

for his tier classification under Megan's Law. P.B., 427 N.J. Super. at 180, 185.

A registrant's "degree of contact" with the victim of a sexual offense is one of

the factors in the risk assessment. Id. at 182.

      In P.B., we held that the "high risk" standard of "penetration" under the

risk analysis was not satisfied if "a registrant merely possessed depictions of


                                                                         A-0925-18T4
                                        11
penetrative sexual activity with children, without any concomitant indication

that [the registrant] played a role in the penetrative activity either as a participant

or a producer." Id. at 182-83. We stated that the simple act of possessing child

pornography does not have "the same heinous qualities as generating them." Id.

at 183 (citing Sisler, 177 N.J. at 208).

      P.B. does not, however, address the question raised in this appeal, which

is whether possession and distribution of child pornography is "sexual conduct

which would impair or debauch the morals of the child" under N.J.S.A. 2C:24-

4(a). Although possession and distribution of child pornography may be less

heinous than the production of such materials, the conduct nevertheless comes

within the purview of N.J.S.A. 2C:24-4(a).

      We therefore conclude that defendant provided an adequate factual basis

for his guilty plea under N.J.S.A. 2C:24-4(a). Accordingly, the trial court did

not err by denying defendant's motion to vacate his guilty plea.

                                           III.

      We next consider defendant's argument that the court erred by denying his

petition for PCR. He contends he presented a prima facie case of ineffective

assistance of counsel, and the PCR court should have conducted an evidentiary

hearing on his petition. Again, we disagree.


                                                                               A-0925-18T4
                                           12
      A defendant is entitled to an evidentiary hearing on a PCR petition if he

or she establishes a prima facie case in support of PCR, the court finds "that

there are material issues of disputed fact that cannot be resolved by reference to

the existing record," and the court determines "that an evidentiary hearing is

necessary to resolve the claims for relief." State v. Porter, 216 N.J. 343, 354

(2013) (quoting R. 3:22-10(b)).

      Furthermore, a defendant establishes a prima facie case for PCR if he or

she shows "a reasonable likelihood that his or her claim, viewing the facts

alleged in the light most favorable to the defendant, will ultimately succeed on

the merits." Id. at 355 (quoting R. 3:22-10(b)).

      The standard for establishing ineffective assistance of counsel is "the same

under both the Federal and State Constitutions." State v. Pierre, 223 N.J. 560,

578 (2015) (quoting State v. O'Neil, 219 N.J. 598, 610 (2014)). To prevail on

the claim, a defendant must meet the two-pronged test articulated in Strickland

v. Washington, 466 U.S. 668 (1984):

            First, the defendant must show that counsel's
            performance was deficient. This requires showing that
            counsel made errors so serious that counsel was not
            functioning as the "counsel" guaranteed the defendant
            by the Sixth Amendment. Second, the defendant must
            show that the deficient performance prejudiced the
            defense. This requires showing that counsel's errors
            were so serious as to deprive the defendant of a fair

                                                                          A-0925-18T4
                                       13
              trial, a trial whose result is reliable. Unless a defendant
              makes both showings, it cannot be said that the
              conviction or death sentence resulted from a breakdown
              in the adversary process that renders the result
              unreliable.

              [Id. at 687.]

      The defendant first must show that his "counsel's representation fell below

an objective standard of reasonableness." Id. at 688. The defendant must show

that counsel's "acts or omissions were outside the wide range of professionally

competent assistance."        Id. at 688, 690.     There is, however, a "strong"

presumption that counsel provided adequate assistance and exercised reasonable

professional judgment in his handling of the case. Id. at 690.

      Even a "professionally unreasonable" error by counsel does not warrant

setting aside a criminal conviction "if the error had no effect on the judgment."

Id. at 691.    Therefore, under the second prong of the Strickland test, the

defendant must show there is a "reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different."

Id. at 694. "A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Ibid.

      It is well established that the Strickland standard applies to claims of

ineffective assistance of counsel associated with a guilty plea. State v. Gaitan,


                                                                            A-0925-18T4
                                         14
209 N.J. 339, 350-51 (2012) (citing Hill v. Lockhart, 474 U.S. 52, 57 (1985)).

To establish the prejudice prong under Strickland in the context of a plea, a

defendant must establish 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 (quoting State v. Nuñez-Valdez, 200 N.J. 129, 139

(2009)). A defendant must show that it would have been rational to reject the

plea offer and insist on going to trial and, that, "he probably would have done

so . . . ." State v. Maldon, 422 N.J. Super. 475, 486 (App. Div. 2011).

      Here, defendant claims he was denied the effective assistance of counsel

because plea counsel: (1) misinformed him regarding the applicability of PSL

to the offenses with which he was initially charged; (2) erroneously advised him

that a conviction under either N.J.S.A. 2C:24-4(a) or 2C:24-4(b)(5)(b) would

carry a sentence of PSL; and (3) erroneously advised him to plead guilty to an

offense without a sufficient factual basis for the necessary prima facie elements.

      The PCR court found that defendant's plea counsel had skillfully

negotiated with the State in order to avoid a lengthy State-prison sentence. The

court noted that if defendant had been convicted of second-degree endangering

the welfare of a child by transmitting child pornography, N.J.S.A. 2C:24-

4(b)(5)(a), as initially charged, he would have been sentenced to a term of five


                                                                          A-0925-18T4
                                       15
to ten years in State prison, whereas defendant's conviction for third-degree

endangering under N.J.S.A. 2C:24-4(a) allowed defendant to avoid a lengthy

prison term.

      Here, the State agreed to recommend that defendant be sentenced to a term

of 364 days in county jail, but the sentence would include PSL. As the PCR

court pointed out in its opinion, at sentencing, the judge noted that if defendant

had been convicted of the second-degree offense as initially charged, he would

not be subject to PSL, but would have been sentenced to a minimum of five

years in State prison.

      The sentencing judge also noted that by pleading guilty to endangerment

under N.J.S.A. 2C:24-4(a), defendant would be subject to PSL, but a State prison

term would not be imposed. Defendant stated that he understood.

      The PCR court found that defendant was aware of his options and entered

the plea agreement to limit the time he would spend in jail. The court also found

that defendant was not misadvised or misinformed concerning PSL, and he

entered the plea knowingly and voluntarily.

      The PCR court further found that plea counsel was diligent in explaining

the consequences of the plea to defendant. The court noted that defendant had

signed the plea forms, provided an adequate factual basis for the plea, and


                                                                          A-0925-18T4
                                       16
admitted on the record that he was satisfied with the services his plea counsel

had provided. The court concluded that defendant failed to satisfy the first prong

on the Strickland test.

      In addition, the PCR court found that defendant failed to satisfy the second

prong on the test for ineffective assistance of counsel. He did not show that but

for counsel's alleged errors, he would have rejected the plea offer and insisted

on going to trial. As the court noted, defendant claimed that if he had been

aware he could have avoided PSL if he pleaded guilty to a different subsection

of the endangering statute, he would have rejected the State's plea offer.

      The court found, however, that plea counsel made reasonable efforts to

avoid imposition of a lengthy prison sentence. The court stated:

             Here, the State had a strong provable case. [Defendant]
             had gigabytes of child pornography directly on his
             computer[. H]e used a peer to peer file sharing
             application to store and share images, [and] directly
             shared images and interacted with an undercover
             officer in a chat[ ]room. When the police arrived at
             [defendant's] home he admitted that he knew why they
             were at his home and law enforcement found his
             computer system running child pornography when they
             walked through the door.

The court stated that defendant had not shown a rational person in his position

would not have accepted the plea agreement and would have instead insisted on

going to trial.

                                                                             A-0925-18T4
                                       17
       We are convinced that the record supports the court's findings. The record

shows that defendant was not misadvised regarding PSL. He knew his options

but agreed to plead guilty to endangering the welfare of a child under N.J.S.A.

2C:24-4(a) knowing that he would be sentenced to PSL, rather than plead to

another offense which would result in a longer prison sentence but not include

PSL.

       Moreover, as stated previously, defendant's factual admissions established

the essential elements of N.J.S.A. 2C:24-4(a).       Therefore, the PCR court

correctly determined that defendant failed to establish his claim of ineffective

assistance of counsel, and an evidentiary hearing was not required.

                                       IV.

       Defendant further argues that the PCR court erred by finding that his

petition was barred under Rule 3:22-12(a)(1). As noted previously, defendant

did not file his petition within five years after the entry of the judgment of

conviction, as required by the rule. The court found that defendant failed to

establish excusable neglect, or that enforcement of the time-bar would result in

a fundamental injustice. However, since the PCR court considered the merits

of defendant's claims and correctly determined that defendant had not




                                                                         A-0925-18T4
                                       18
established a right to relief, we need not consider defendant's argument on this

point.

         Affirmed.




                                                                        A-0925-18T4
                                      19
