                                      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                                NOT FOR PUBLICATION WITHOUT THE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-2542-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DOUGLAS S. COOK,

     Defendant-Appellant.
________________________

                   Submitted November 18, 2019 – Decided December 13, 2019

                   Before Judges Sabatino and Geiger.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Mercer County, Indictment No. 10-03-0304.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Abby P. Schwartz, Designated Counsel, on
                   the brief).

                   Angelo J. Onofri, Mercer County Prosecutor, attorney
                   for respondent (Laura Sunyak, Assistant Prosecutor, of
                   counsel and on the brief).

PER CURIAM
      Defendant Douglas S. Cook appeals from a November 27, 2018 Law

Division order denying his petition for post-conviction relief (PCR) without an

evidentiary hearing. We affirm.

      A Mercer County Grand Jury returned an indictment charging defendant

with two counts of second-degree sexual assault of a child less than thirteen

years old, N.J.S.A. 2C:14-2(b) (counts one and two); two counts of second-

degree endangering the welfare of a child less than sixteen years old that he had

the legal duty to care for, or whom he had assumed responsibility for the care

of, N.J.S.A. 2C:24-4(a) (counts three and four); and fourth-degree endangering

the welfare of a child (count five), N.J.S.A. 2C:24-4(b)(5)(b). The offenses were

alleged to have occurred on August 2, 2009.

      Defendant entered into a plea agreement with the State on August 18,

2011, pleading guilty to count three in exchange for the State agreeing to

recommend treating the second-degree endangering charge as a third-degree

offense for sentencing purposes, and a suspended three-year term, together with

dismissal of the other four counts.

      At the plea hearing, the assistant prosecutor described the terms of the

plea agreement. Included within that description was the assistant prosecutor's

statement that the sentence "would carry with it the requirements of Megan's


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                                       2
Law, as well as parole supervision for life." The assistant prosecutor also

posited that the State would be asking the court to issue a Nicole's Law

restraining order. The State would further request the court to restrict defendant

"from use of the Internet, particularly, that he be restricted from going onto any

social networking sites or that his internet usage be restricted entirely, as a

condition of his parole." Defense counsel confirmed that those representations

were accurate.

      After being sworn, defendant testified he was fifty-four years old, a high

school graduate, and could read, write, and understand the English language

without difficulty. When asked if the terms of the plea agreement set forth by

the assistant prosecutor were accurate, defendant answered in the affirmative.

The judge then reviewed the terms of the plea agreement with defendant.

Defendant confirmed that he understood the plea agreement included being

subject to Megan's Law and the recommendation that a restraining order would

be imposed, pursuant to Nicole's Law, prohibiting both contact with the victim

and unsupervised contact with children under the age of sixteen. The judge also

discussed the State's intention to request restrictions on Internet usage.

      Defendant acknowledged that no one had threatened or coerced him into

pleading guilty. Defendant also acknowledged that he had reviewed all of the


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                                         3
discovery with his attorney, that his attorney had answered all of his questions,

that he did not have any questions that had not been answered, and that he was

satisfied with his attorney's legal representation.

      The judge then proceeded to review the plea forms with defendant.

Defendant confirmed he had initialed and signed the plea forms, including the

supplemental plea form for sexual offenses. He acknowledged that he had

reviewed each of the questions on the plea forms with his attorney and that his

answers to the questions were true. He testified that he wanted to give up the

right to a trial and the rights associated with a trial and plead guilty. He further

indicated he was given enough time to think about the plea agreement and to

discuss it with his attorney.

      Defendant confirmed that he knew what Megan's Law is and that he

understood he was pleading guilty to a Megan's Law offense. He acknowledged

understanding he would be subject to registration and notification requirements

under Megan's Law for the rest of his life.           Defendant also indicated he

understood that if he failed to comply with those requirements he could be

criminally prosecuted for a fourth-degree offense.

      A discussion between counsel and the judge followed with respect to

whether the questions on the supplemental plea form pertaining to community


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                                         4
supervision for life (CSL) or parole supervision for life (PSL), should be

answered. Counsel agreed that since the offense occurred after January 14,

2004, PSL applied.        Defendant's attorney explained that when defendant

answered the supplemental plea form initially, he answered the questions for

PSL.      Defendant's attorney then inadvertently had defendant answer the

questions for CSL. Counsel reiterated that defendant would be subject to PSL.

Defendant's attorney stated the original version with the PSL questions

answered would be attached to the plea forms. The following colloquy took

place between the judge and defendant:

        Q. You understand that you're subject to {[PSL], correct?

        A. Yes.

        Q. And you're agreeable to that --

        A. Yes.

        Q. --as part of the plea?

        A. Yes.

        Defendant then provided a factual basis for his plea.            Defendant

acknowledged that on August 2, 2009, he was babysitting M.D., 1 who was then

four years old, in his home. Defendant admitted touching her vagina and that


1
    We identify the victim by initials to protect her identity. R. 1:38-3(d)(10).
                                                                            A-2542-18T2
                                          5
by doing so his "conduct would impair or debauch her morals, as defined in the

statute." On questioning by the assistant prosecutor, defendant admitted that his

touching of M.D. was under her clothing. When asked do "you understand that

this would have a tendency to impair or debauch that child's morals based upon

the conduct and her age," defendant answered "yes."

      The judge accepted the plea, finding it was made "freely, voluntarily and

knowing all consequences thereto, including Megan's Law, Nicole's Law, [PSL]

and the forfeiture, as well as the other terms of the plea agreement." The judge

also found defendant had not been threatened or promised anything outside of

the terms of the plea agreement and understood the terms of the agreement and

the rights he was waiving. The judge further found defendant gave a sufficient

factual basis for the plea.

      Defendant was sentenced on April 10, 2012.           During the hearing,

defendant's attorney noted this was defendant's first felony conviction and that

he had cooperated by entering into the plea agreement. She further noted that

the presentence report was accurate. Defense counsel stated defendant had

earned 743 days of jail credit. She argued against a lifetime Internet ban,

claiming a lifetime ban would infringe defendant's First Amendment rights.




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                                       6
      The assistant prosecutor requested that defendant's Internet access be

"limited to that which is reasonable in his position" but noted that Internet bans

are a matter for parole to enforce.       Defendant's allocution was limited to

discussing Internet restrictions.

      The court found aggravating factor nine, the need to deter defendant and

others from violating the law, N.J.S.A. 2C:44-1(a)(9). It gave "partial credit" to

mitigating factor twelve, the willingness of defendant to cooperate with law

enforcement officials, N.J.S.A. 2C:44-1(b)(12).           The court found the

aggravating factor slightly outweighed the mitigating factor.

      The court sentenced defendant in accordance with the terms of the plea

agreement to a suspended three-year term, subject to Megan's Law, a restraining

order pursuant to Nicole's Law, PSL, and imposed the applicable fines and

penalties. As to Internet restrictions, the court barred defendant "from any social

networking website. . . .      However, online banking, bill paying shall be

permitted."

      Following a discussion with counsel at sidebar, the court modified its

sentence, stating, it was "not going to impose any ban on Internet access as part

of the sentence." The court noted parole "has its own ability to impose whatever

restrictions on his Internet use, or even a total Internet ban in its administrative


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                                         7
authority conferred upon it by the statute."       The court indicated it would

"remove" the Internet restriction as a sentencing condition, leaving such

considerations to the discretion of parole. The court dismissed the remaining

counts.

        Defendant did not file a direct appeal from his conviction or sentence.

        Defendant filed a pro se petition for PCR on March 23, 2017. Counsel

was appointed to represent defendant. An amended petition and letter brief were

filed on defendant's behalf.     Defendant's petition was based on a claim of

ineffective assistance of counsel. The petition as amended alleged his attorney

did not apprise him of the consequences of his guilty plea and, therefore, his

plea was not knowing and voluntary. Defendant further alleged that: (1) his

attorney failed to conduct investigation through witness interviews or file

motions to compel discovery; (2) the factual basis for his plea was insufficient;

(3) the PSL statute is unconstitutional; (4) he should be allowed to withdraw his

plea under State v. Slater;2 (5) cumulative error compels the court to grant PCR;

and (6) the judgment of conviction (JOC) contains errors.         Defendant also

claimed he was entitled to an evidentiary hearing.




2
    State v. Slater, 198 N.J. 145 (2009).
                                                                          A-2542-18T2
                                            8
      Following oral argument, Judge Timothy P. Lydon issued a November 27,

2018 order and comprehensive twenty-five page written opinion denying PCR

without an evidentiary hearing. The opinion addressed each of defendant's

claims, concluding they were procedurally barred, lacked merit, and did not

establish a prima facie case for PCR.

      Defendant argues his attorney did not review the actual conditions

imposed by PSL, including the possibility he could be "sent to prison through

the parole review process." He claims that if he had known the consequences

of PSL, he would have rejected the State's plea offer. Judge Lydon rejected this

claim, reviewing the contents of the plea forms and plea hearing in detail. The

judge found:

                   Th[e] discrepancy between the two [plea] forms
            was identified and resolved at the plea hearing on
            August 18, 2011. Defendant's attorney informed the
            court that she completed two versions of the form. The
            court inquired whether [d]efendant properly understood
            the terms of the plea agreement and that he was subject
            to PSL. Defendant replied in the affirmative and
            explicitly acknowledged that he was being placed on
            PSL.

      The PCR judge found defense counsel's error did not compromise

defendant's Sixth Amendment rights. He noted, "[d]efendant agreed on the first

set of plea forms to receive a sentence of PSL and accept its respective


                                                                        A-2542-18T2
                                        9
conditions." The judge also concluded defendant "failed to demonstrate that

counsel's performance 'affected the outcome of the plea process.'" (Quoting Hill

v. Lockhart, 474 U.S. 52, 59 (1985)). The judge noted "[d]efendant verbally

confirmed to the court that he was subject to PSL and was 'agreeable' to the

associated conditions." The judge determined there was "nothing in the record"

supporting defendant's claim that he would not have accepted the plea offer if

his "[attorney] or the [c]ourt explained what PSL actually meant."

       The judge also noted that defendant's attorney negotiated a favorable plea

agreement that resolved four second-degree charges that exposed defendant to

five to ten years imprisonment on each count, and also imposed a three-year

suspended sentence. The judge explained:

                    Because of these compelling terms, it is
             improbable that [d]efendant would have rejected the
             plea agreement. Defendant has not presented any
             evidence that he was in a position to negotiate a better
             plea agreement or achieve a more advantageous result
             at trial. Thus, [d]efendant has failed to establish
             prejudice under prong [two] of the Strickland 3 test.

       The judge next addressed defendant's claim that his attorney failed to

compel discovery, interview witnesses, or file any motions to protect his rig hts.

The judge rejected these "generalized, non-specific claims," noting that


3
    Strickland v. Washington, 466 U.S. 668 (1984).
                                                                          A-2542-18T2
                                       10
defendant "may not rely on 'bald assertions that he was denied the effective

assistance of counsel.'" (Quoting State v. Cummings, 321 N.J. Super. 154, 170

(App. Div. 1999)). The judge explained:

                      Defendant has failed to identify any deficiencies
               concerning discovery or motion practice. He does not
               cite any motions that should have been filed or describe
               any missing discovery. Most significantly, he has not
               explained the effect of these vague allegations on the
               outcome of his case.

                      His remaining contention is also unavailing.
               Defendant has not identified any witnesses or proffered
               any testimony that would have impacted his plea or a
               trial.

         Defendant claimed the factual basis for his plea was insufficient because

it did not "establish the elements of sexual conduct or a tendency to debauch."

The judge held this claim was procedurally barred by Rule 3:22-4(a) since it

reasonably could have been raised in a direct appeal. The judge found the

information necessary to support the claim was available to defendant by way

of a transcript of the plea hearing at the time a direct appeal could have been

filed. The judge also found that imposing the procedural bar would not result

in a fundamental injustice since "[d]efendant's factual basis supported his guilty

plea."




                                                                          A-2542-18T2
                                         11
      The judge noted that knowledge that the acts would impair or debauch the

child's morals was not an element of the offense. Instead, "defendant merely

ha[d] to acknowledge that his conduct had the propensity to do so." Defendant

admitted that his conduct "would" and "would have a tendency" to "impair or

debauch her morals."

      The judge rejected defendant's claim that he did not engage in sexual

contact. He explained that "sexual contact 'means an intentional touching by the

victim or actor, either directly or through clothing, of the victim's or actor's

intimate parts for the purpose of degrading or humiliating the victim or sexually

arousing or sexually gratifying the actor.'" (Quoting N.J.S.A. 2C:14-1(d)).

Defendant acknowledged that he touched the victim's vagina under her clothing.

The judge noted some forms of sexual contact with a child, such as touching her

intimate parts, are obviously of a sexual nature.

      The judge next addressed defendant's request to withdraw his guilty plea.

Because defendant's application was made after sentencing, the judge analyzed

the application under the "manifest injustice" standard imposed by Rule 3:21-1.

Applying the four-prong test adopted by the Court in State v. Slater, 198 N.J.




                                                                         A-2542-18T2
                                       12
145 (2009),4 the judge noted that a bare assertion of innocence was insufficient

to warrant withdrawal of a guilty plea.        Instead, defendant "must present

specific, credible facts." (Quoting Slater, 198 N.J. at 158).

        The judge rejected defendant's claim of innocence. He found defendant

provided an adequate factual basis, "[h]is acknowledgement of guilt was

unequivocal," and his statements satisfied every element of the offense. The

judge noted "[d]efendant also reaffirmed his culpability during his presentence

interview."

        As to the second Slater prong, the court observed that defendant waited

until shortly before five years had elapsed since he was sentenced to seek to

withdraw his plea.      The court also found his reasons for withdrawal were

unavailing.     The court concluded there was no indication defendant was



4
    In Slater, the Court held that:

              trial judges are to consider and balance four factors in
              evaluating motions to withdraw a guilty plea: (1)
              whether the defendant has asserted a colorable claim of
              innocence; (2) the nature and strength of defendant's
              reasons for withdrawal; (3) the existence of a plea
              bargain; and (4) whether withdrawal would result in
              unfair prejudice to the State or unfair advantage to the
              accused.

              [Id. 157-58.]
                                                                         A-2542-18T2
                                        13
pressured into pleading. Defendant acknowledged during the plea hearing that

he was not threatened or coerced into pleading guilty.         He reviewed the

discovery and was satisfied with his attorney's services. He had sufficient time

to consider the plea offer and ask any questions he may have had.

      Regarding the third Slater prong, the court observed the plea was entered

as part of a plea agreement. Therefore, "it [was] afforded a higher degree of

finality," with a heavier burden placed on defendant to justify the withdrawal.

The court found that because defendant "received a favorable agreement and he

entered into it freely and voluntarily, this factor weighs against his request to

withdraw his plea."

      The fourth Slater prong considers the prejudicial impact on the State if

withdrawal were permitted. The court noted that the State is not required to

show prejudice since defendant had not established the other three prongs, citing

Slater, 198 N.J. at 162. Balancing the four Slater factors, the court denied

withdrawal of the plea. The court also determined this case did not present a

manifest injustice.

      Defendant contended PSL is unconstitutional because it allows the Parole

Board to impose penalties for PSL violations, constituting an illegal delegation

of "the powers of the judiciary to the Executive branch of government." He


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                                      14
further contended PSL allows the Parole Board to "'play judge and jury' and send

free men to prison." The court characterized this claim as a separation of powers

argument.

      The court determined this challenge was procedurally barred as it could

have been raised on direct appeal, citing Rule 3:22-4(a)(3). It found that none

of the exceptions to the procedural bar applied since defendant did not rely on a

new rule of constitutional law that had been retroactively applied and

enforcement of the bar would not result in a fundamental injustice.

      The court also found the argument to be substantively without merit. It

noted PSL has been previously upheld as a lawful form of indefinite parole by

our Supreme Court, citing Riley v. New Jersey State Parole Board., 219 N.J.

270, 288 (2014). Quoting Morrissey v. Brewer, 408 U.S. 471, 480 (1972), the

court concluded parole revocation "is constitutional because [it] 'deprives an

individual, not of the absolute liberty to which every citizen is entitled, but only

of the conditional liberty properly dependent on observance of special parole

restrictions.'" The court noted defendant agreed to be sentenced to PSL and "to

be subjected to parole revocation in the event he violated the conditions of PSL."

      Finding no error, other than the inadvertent error of counsel in the

supplemental plea form that was addressed and corrected at the plea hearing, the


                                                                            A-2542-18T2
                                        15
court rejected defendant's claim of cumulative error. The court also concluded

defendant had "failed to produce any evidence to suggest his counsel's

performance had a deleterious impact on this case." The court found "counsel's

errors were harmless, and their cumulative effect was negligible."

      Based on those findings, the court held defendant had not established a

prima facie case for PCR. Therefore, he was not entitled to an evidentiary

hearing. More fundamentally, the court found that "an evidentiary hearing will

not aid the court's analysis of [defendant's] petition."

      Finally, the court addressed defendant's claims that the JOC contains

several errors. The court found the JOC errantly contains a ban on social

networking despite the sentencing judge's statement during the sentencing

hearing that he was "not going to impose any ban on Internet access as part of

the sentence."

      Defendant also argued that the JOC contains errors as to the aggravating

and mitigating factors.      During the sentencing hearing, the court found

aggravating factor nine applicable and assigned partial credit to mitigating factor

twelve, concluding "the aggravating factors slightly outweigh the mitigating

factors."   The JOC, however, states that "[t]he [c]ourt finds no mitigating

factors" and that "[t]he [c]ourt is clearly convinced that the aggravating factors


                                                                           A-2542-18T2
                                        16
outweigh the mitigating factors." The PCR court held that "the JOC must be

amended to include mitigating factor [twelve] and [to] accurately reflect the

weight that was accorded to each sentencing factor."

      This appeal followed.    Defendant raises the following point for our

consideration:

            POINT I

            DEFENDANT WAS DENIED THE EFFECTIVE
            ASSISTANCE OF COUNSEL BECAUSE HIS
            ATTORNEY FAILED TO EXPLAIN THE MEANING
            OF PAROLE SUPERVISION FOR LIFE. BECAUSE
            OF   THIS   AND   BECAUSE    DEFENDANT
            MAINTAINS HIS INNOCENCE, HIS PLEA OF
            GUILTY    SHOULD    BE    VACATED    OR
            WITHDRAWN OR AN EVIDENTIARY HEARING
            SHOULD BE HELD.     FAILURE TO [DO] SO
            WOULD VIOLATE DEFENDANT'S RIGHT TO
            COUNSEL AND A FAIR TRIAL.

            A. Failure to Explain Parole Supervision for Life

            B. Motion to Withdraw Guilty Plea

      We affirm substantially for the reasons expressed by Judge Lydon in his

November 27, 2018 written opinion.         We add the following additional

comments.

      To prove ineffective assistance of plea counsel, a "defendant must show

that counsel's performance was deficient," Strickland, 466 U.S. at 687, and but


                                                                       A-2542-18T2
                                     17
for counsel's errors, "there is a reasonable probability that . . . [the defendant]

would not have pled guilty," State v. DiFrisco, 137 N.J. 434, 457 (1994) (second

alteration in original) (quoting Hill, 474 U.S. at 59). The court must consider

the facts in the light most favorable to the defendant to determine if a defendant

has established a prima facie claim. State v. Preciose, 129 N.J. 451, 462-63

(1992).

      The record fully supports the findings made and conclusions reached by

Judge Lydon. Defendant understood and agreed to be subjected to PSL. He

likewise understood that violations of Megan's Law or PSL could result in

criminal prosecution and incarceration if convicted.

      Defendant's claim that counsel was ineffective by not compelling

discovery, interviewing witnesses, or filing unspecified motions amount to

nothing more than mere unsupported, bald assertions that are insufficient to

establish a claim of ineffective assistance of counsel under Strickland, in any

event. See Cummings, 321 N.J. Super. at 169-71 (also finding a petitioner's bald

assertions did not support a prima facie case of ineffectiveness). Defendant must

allege specific facts "sufficient to demonstrate counsel's alleged substandard

performance." Id. at 170. "Thus, when a petitioner claims his trial attorney

inadequately investigated his case, he must assert the facts that an investigation


                                                                           A-2542-18T2
                                       18
would have revealed, supported by affidavits or certifications based upon the

personal knowledge of the affiant or the person making the certification." Ibid.

Similarly, if defendant claims trial counsel failed to pursue certain defenses or

motions, he must specify those defenses and motions. Here, defendant has failed

to provide such certifications or affidavits setting forth any facts in support of

his bald assertions. For that reason, his argument is unavailing.

      We agree that defendant has not made a colorable claim of innocence. His

claim that PSL is unconstitutional is without merit. Several of his claims were

procedurally barred because he did not raise them in a direct appeal. Applying

the Slater factors, he has not demonstrated a basis to withdraw his plea.

      Moreover, defendant received the benefit of a highly favorable plea offer,

thereby avoiding the possibility of conviction on multiple counts of second-

degree offenses and the resulting exposure to much longer sentences. He has

not shown it would have been rational for him to forego the plea offer and face

trial and the risk of an increased sentence. See Lee v. United States, ___ U.S.

___, ___, 137 S. Ct. 1958, 1967 (2017) (holding "[c]ourts should not upset a

plea solely because of post hoc assertions from a defendant about how he would

have pleaded but for his attorney's deficiencies" and "[j]udges should instead




                                                                            A-2542-18T2
                                       19
look to contemporaneous evidence to substantiate a defendant's expressed

preferences"); Strickland, 466 U.S. at 687, 694; DiFrisco, 137 N.J. at 457.

      Defendant did not make a prima facie case of ineffective assistance of

counsel. Moreover, an evidentiary hearing was not necessary to decide the

issues raised by defendant. Thus, he was not entitled to an evidentiary hearing.

      In sum, we find no error or abuse of discretion by the PCR court.

Defendant's petition was properly denied without an evidentiary hearing.

      Affirmed.




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                                      20
