                             RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE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-3590-16T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

GRADY RADFORD,

     Defendant-Appellant.
_______________________________________

              Submitted March 21, 2018 – Decided August 13, 2018

              Before Judges Fuentes and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Cumberland County, Indictment
              No. 09-07-0600.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (David J. Reich, Designated
              Counsel, on the brief).

              Damon G. Tyner, Atlantic County Prosecutor,
              attorney for respondent (John J. Santoliquido,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Grady Radford appeals from the order of the Criminal

Part denying his post-conviction relief (PCR) petition. We affirm.
     Defendant was forty-six years old and worked as a registered

nurse at Bridgeton Hospital at the time the State alleged he

sexually assaulted a seventeen-year-old girl, A.M.1, who had been

admitted as a psychiatric patient in the Hospital's Crisis Center.

According to A.M., defendant sexually assaulted her on multiple

occasions from June 2008 to July 2008.             On July 22, 2009, a

Cumberland County2 Grand Jury returned an indictment charging

defendant with three counts of second degree sexual assault of

A.M., N.J.S.A. 14-2(c), two counts of fourth degree criminal sexual

contact of A.M. and another victim, A.H., N.J.S.A. 2C:14-3(b), and

one count of third degree tampering with a witness, A.H., N.J.S.A.

2C:28-5(a).

     Defendant retained private counsel, who employed a private

investigator   to   probe   into   the   State's   case   and   develop    an

appropriate defense strategy.        The record contains a number of

internal memoranda written by defense counsel, as well as reports

submitted by the investigator memorializing the discussions they

had with defendant and summarizing the strengths and weaknesses



1
   We use initials or pseudonyms to refer to the victims of these
crimes pursuant to Rule 1:38-3(c)(9) and N.J.S.A. 2A:82-46(b).
2
  Although this case originated in Cumberland County, the Attorney
General transferred the prosecution to Atlantic County due to a
conflict of interest with the Cumberland County Prosecutor's
Office.

                                    2                               A-3590-16T4
of the State's case.    These records show defendant believed a key

aspect of his defense strategy involved the physical layout of the

nurses' station, where A.M. alleged she was sexually assaulted by

defendant.   An internal confidential memorandum written by defense

counsel on March 26, 2010, documents in great detail what was

discussed at a pretrial conference held before the trial judge

concerning the State's plea offer.       Defense counsel noted that the

trial judge viewed the State's offer of probation to be very

generous to defendant.

      On June 15, 2010, defendant negotiated an agreement with the

State through which he agreed to plead guilty to fourth degree

child abuse of A.M., N.J.S.A. 9:6-3, and the petty disorderly

persons offense of harassment, for offensive touching of A.H.,

N.J.S.A. 2C:33-4(b).    In exchange, the State agreed to dismiss the

charges in the indictment and recommend that the court sentence

defendant to a term of probation, subject to the mandatory fines

and penalties.       Although defendant would not be required to

register as a convicted sex offender under N.J.S.A. 2C:7-1 to -

19,   he   was   required   to   surrender   his   nursing   license   "in

perpetuity."

      The record of the plea hearing shows the judge addressed

defendant directly as required under Rule 3:9-2, to ensure he

understood the terms of the plea agreement.         With respect to the

                                     3                            A-3590-16T4
forfeiture of his nurse's license, the judge asked defendant: "Do

you understand that the surrendering of that license means that

you will never be able to hold an R.N. license again in this or

any other State?"    Defendant responded: "[T]hat's fine.     Yes."

After reviewing the content of the plea form, the judge asked

defendant:   "One more time.   Do you feel that you need more time

to talk to [defense counsel] about any of these issues?" Defendant

responded: "No."

     In response to his attorney's and the judge's questions,

defendant provided the following factual basis in support of his

guilty plea for fourth degree child abuse:

          Q. Mr. Radford, on dates between June 2nd of
          2008 and July 5th of 2008, were you in the
          City of Bridgeton?

          A. Yes.

          Q. Between those dates, were you employed by
          the Crisis Unit in the City of Bridgeton?

          A. Yes.

          Q. While employed by the Crisis Unit, did you
          come to know a female minor with the initials
          "A.M"?

          A. Yes.

          Q. On one of those dates between June 2nd of
          2008 and July 5th of 2008, did you place your
          hand under A.M.'s shirt and over her bra on
          her breast?

          A. Yes.

                                 4                          A-3590-16T4
Q. Do you agree that this singular act would
tend to debauch A.M.'s morals?

A. Yes.

Q. And do you agree that that act constitutes
an act of abuse under [N.J.S.A.] 9:6-3, the
statute that you . . . went over?

A. Yes.

THE COURT: Let me ask you a few more questions
of you . . . .

By this "Crisis Unit" you are talking about
. . . the Child and Adolescent Unit[,] or
. . . the Intermediate Unit I believe it is
referred to at Bridgeton Hospital of South
Jersey Healthcare Systems; is that correct?

A. That's correct; yes.

THE COURT: And you were employed there at the
time; is that correct?

A. Yes.

THE COURT: And in that capacity, do you agree
that you had care, custody, or control of a
child who is referred to as . . . "A.M."?

A. Yes.

THE COURT: And you were, in fact, caring for
her; is that correct?

A. Yes.

THE COURT: And she was a patient at that unit;
is that correct?

A. Yes.

     . . . .

                      5                          A-3590-16T4
          THE COURT: And at the time that this happened,
          she was 17 years old; is that correct?

          A. Yes.

     Defendant provided the following factual basis with respect
to his guilty plea to the petty disorderly persons offense of
harassment involving A.H.:
          Q. Mr. Radford, . . . on dates between June
          2nd of 2008 and July 5th of 2008, were you in
          the City of Bridgeton?

          A. Yes.

               . . . .

          Q. Were you employed there as a registered
          nurse?

          A. Yes.

          Q. While employed at the Crisis Unit, did you
          come to know a female minor with the initials
          "A.H."?

          A. Yes.

          Q. All right. On one of those dates between
          June 2nd of 2008 and July 5th of 2008, while
          employed at the Crisis Unit in Bridgeton, did
          you grab A.H.'s buttocks over her clothes?

          A. Yes.

          Q. Do you agree that this singular act
          constitutes harassment by offensive touching?

          A. Yes.

     The sentencing hearing occurred on July 16, 2010.     A.M. and

members of her immediate family addressed the court and described


                                6                           A-3590-16T4
the great emotional and psychological harm they had suffered as a

result   of    defendant's   criminal      conduct.      They   were   greatly

disappointed     and   frustrated   that    the   plea   agreement     did   not

authorize the court to impose a term of imprisonment. In response,

the prosecutor addressed the court as follows:

              I myself have 27 years [of] experience as a
              Prosecutor in the criminal justice system,
              trying cases of this type. These are perhaps
              . . . the most difficult kinds of cases to
              resolve. And in this particular case, Judge,
              there were significant proof issues. And they
              are significant enough that I and [the First
              Assistant Prosecutor and the Prosecutor]
              . . . were doubtful about being able to prevail
              at trial.    And by that I mean prove these
              charges beyond a reasonable doubt.

                   . . . .

              I have conferred with [defense counsel] on
              many, many occasions regarding this case and
              regarding possible pleas. I am satisfied that
              the plea agreement that is presently entered
              into which calls for a period of probation, a
              criminal conviction for Mr. Radford, and a
              voluntary surrender of his nursing license in
              perpetuity is the most we are going to get by
              way of a plea in this case, which leaves us
              with the alternative of going to trial. So
              that's the alternative that we have, Judge.

              [(Emphasis added).]

     Defendant declined to make any statement or address the court.

Before imposing sentence, the judge made the following comments

with respect to his views concerning the fairness of the plea

agreement:

                                     7                                  A-3590-16T4
Now I have an advantage in this case. I've
had other cases where victims have come in and
objected.    But I have an advantage in this
case because at . . . a stage of this case
before a plea was entered, I was asked to
review   the   full  hospital   records   from
Bridgeton Hospital . . . where the victim was
a patient for a lengthy period of time.

I also have an advantage in this case because
for almost an eight-year period, I was the
Judge who went two weeks in Bridgeton Hospital
and conducted civil commitment hearings.
Although . . . I'm sure this victim appeared
before me many times at those hearings.

The Bridgeton Intermediate Unit is a unit that
is designed, set-up, and functions to deal
with the our most damaged - - our most
vulnerable, our most in need - - citizens. It
is a unit - - because I dealt with these
children for eight years - - I have a great
deal of respect for what they are able to do
and how they're able to get these kids back
on their feet and get better.

     . . . .

But I, . . . have to look at my role as a
Judge in deciding whether the Prosecutor has
abused his discretion. I have to look at what
I saw in [the victim's] records. I know what
lawyers can do at trial; I know what defense
lawyers can do to witnesses at trial; I know
what defense lawyers can do to witnesses at
trial. I know how difficult this trial would
have been on this victim. I saw these records.
I spent hours and hours and hours going
through these records. I felt that, myself,
I was violating this victim by going through
her most personal records.    And I know how
difficult this trial would have been.

I am not going to articulate things I saw; I'm
not going to put the victim through any

                      8                          A-3590-16T4
            particular further damage here.       But by
            reviewing those records and by hearing the
            comments of the Prosecutor, I cannot conclude
            that   this   Prosecutor   is   abusing   his
            discretion.   And therefore, I won't reject
            this plea agreement.

     The court sentenced defendant in accordance with the plea

agreement to a three-year term of probation, subject to the

mandatory   fines    and   penalties,     and   to   defendant   voluntarily

surrendering his Registered Nurse's license.             Defendant did not

file a direct appeal challenging any aspect of his sentence or the

propriety of the plea hearing.

     On August 5, 2014, defendant filed what appears to be a pro

se PCR petition.       Thereafter, defendant's PCR counsel filed an

amended petition in which defendant claimed, inter alia, that his

original counsel "failed to discuss or recommend any measures that

[defendant] could take to gain access to the facility [(Bridgeton

Hospital)], its records or its employees for the purpose of

investigating and developing the defense."           The matter came before

the PCR judge for oral argument on February 3, 2017.              The judge

found defendant did not make out a prima facie case of ineffective

assistance of counsel warranting an evidentiary hearing.              The PCR

judge   noted   that   defense    counsel's     memoranda    documented    the

discussions     he   had   with   defendant     concerning   access   to   the

location.     The PCR judge concluded that defendant failed to show


                                      9                               A-3590-16T4
"that   trial   counsel      deviated    from     [his]    responsibilities       in

failing to conduct the investigation."                    The PCR judge denied

defendant's petition in an order dated February 3, 2017.

     Defendant now appeals raising the following arguments:

            POINT I

            THE COURT BELOW ERRED IN DENYING [DEFENDANT'S]
            PETITION WITHOUT AN EVIDENTIARY HEARING
            CONCERNING HIS CLAIM THAT HIS COUNSEL'S
            FAILURE TO PROPERLY INVESTIGATE AND PREPARE
            HIS CASE DEPRIVED HIM OF HIS RIGHT TO THE
            EFFECTIVE ASSISTANCE OF COUNSEL AND COMPELLED
            HIM TO PLEAD GUILTY.

            POINT II

            THE COURT BELOW ERRED IN DENYING [DEFENDANT'S]
            REQUEST FOR AN EVIDENTIARY HEARING IN VIEW OF
            NEWLY DISCOVERED EVIDENCE OF DEPOSITION
            TESTIMONY BY [DEFENDANT'S] ACCUSER WHICH
            CONTRADICTED HER EARLIER STATEMENT.

     New    Jersey    courts    have    adopted     the    rule   formulated      in

Strickland v. Washington, 466 U.S. 668 (1984) for determining

whether counsel's performance was ineffective for purposes of

the Sixth Amendment.         See State v. Fritz, 105 N.J. 42 (1987).              To

show ineffective assistance of counsel, a defendant must: (1)

"show that counsel's performance was deficient" such that "counsel

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

the Sixth Amendment," and (2) "show that the deficient performance

prejudiced the defense."         Strickland, 466 U.S. at 687.            "Unless a

defendant    makes    both    showings,      it   cannot    be    said   that   the

                                        10                                 A-3590-16T4
conviction . . . resulted from a breakdown in the adversary process

that renders the result unreliable."         Ibid.

       To establish a prima facie case of ineffective assistance of

counsel when a defendant pleads guilty, a defendant must produce

evidence that: (1) "counsel's assistance was not 'within the range

of competence demanded of attorneys in criminal cases;'" and (2)

"'there is a reasonable probability that, but for counsel's errors,

[the defendant] would not have pled guilty and would have insisted

on going to trial.'"        State v. Agathis, 424 N.J. Super. 16, 23

(App. Div. 2012) (alteration in original) (quoting State v. Nunez-

Valdez, 200 N.J. 129, 139 (2009)).        Defendant did not satisfy this

standard.    The record shows defense counsel conducted a thorough

investigation of the evidence the State had against defendant and

used   the   fruits   of   these   efforts   to   negotiate   an   extremely

favorable plea agreement.      Defendant thereafter made a strategic,

well-informed decision to accept the State's plea offer to avoid

the uncertainty of a jury trial with a potentially emotionally

compelling juvenile victim.

       Affirmed.




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