February 19, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENNETH J. THOMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Accusation No. A-00-02-0190.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 19, 2007
Before Judges Axelrad and Sapp-Peterson.
Petitioner, Kenneth Thoms, appeals from the May 30, 2007 order of the Law Division denying his motion to vacate the guilty plea he entered on February 14, 2000 to second-degree sexual assault, N.J.S.A. 2C:14-2(b). We affirm.
On October 20, 2002, as part of a negotiated plea agreement, defendant was sentenced, as a third-degree offender, to a four-year custodial term, together with community supervision for life (CSL). Appropriate fines and penalties were also imposed. No appeal was taken of the conviction and sentence imposed.
On January 24, 2002, however, defendant moved for post-conviction relief (PCR) pursuant to Rule 3:22-1. Defendant cited ineffective assistance of counsel, alleging that defense counsel (1) failed to present the court with his psychiatric history, (2) failed to have him psychologically evaluated for competency to enter the guilty plea, and (3) advised defendant to plead guilty to second-degree aggravated sexual assault. The PCR judge denied defendant's motion, concluding that it was frivolous. No appeal of that decision was filed.
On February 1, 2007 defendant filed a motion to vacate his guilty plea pursuant to Rule 3:21-1, arguing that his plea was illegal because (1) defense counsel failed to adequately inform him of the consequences of his guilty plea, specifically the CSL aspect of the sentence; (2) defense counsel joined the prosecutor's office shortly after representing him, creating a conflict of interest; and (3) during the colloquy between the court and defendant, there was no mention of the CSL. The motion judge denied the motion, finding that the issue raised had been the subject of the prior PCR filed in 2002, during which defendant's PCR counsel "firmly discussed the issue . . . raised before the Court on this application. This is the same exact application." The court concluded that characterizing the matter as a motion to vacate the entry of guilty plea did not alter the fact that the issue had been previously raised and addressed in a prior proceeding from which no appeal was taken. The present appeal followed.
On appeal defendant raises the following points for our consideration:
THE DEFENDANT'S MOTION TO VACATE HIS GUILTY PLEA SHOULD HAVE BEEN GRANTED.
THE PETITION FOR POST[-]CONVICTION RELIEF SHOULD HAVE BEEN GRANTED OR AN EVIDENTIARY HEARING HELD - PETITIONER HAD INEFFECTIVE TRIAL COUNSEL.
After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that the points raised are without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2). We add the following comment.
CSL derives from Megan's Law, N.J.S.A. 2C:7-1 to -19, and "establishe[s] a system of registration and community notification for 'sex offenders and offenders who commit other predatory acts against children.' N.J.S.A. 2C:7-1." State v. S.R., 175 N.J. 23, 28 (2002). There can be no dispute that community supervision for life is a penal as opposed to a collateral consequence of a guilty plea. State v. Jamgochian, 363 N.J. Super., 220, 224 (App. Div. 2003). Consequently, a guilty plea entered without full disclosure of such consequences will ordinarily be set aside. Ibid.
In his colloquy with defendant at the time he entered his plea on February 14, 2000, the following occurred:
Q: All right. Now, with regard to the Megan's Law violation, you have to register in the town where you are going to be living. Do you understand that?
A: Yes, your Honor.
While the judge never used the words CSL, defendant was clearly advised of his registration obligation and, depending upon his classification, the frequency of the registration. Several months later at sentencing on October 20, 2000, the court specifically referenced CSL:
THE COURT: The judgment of conviction must note that this defendant is subject to community supervision for life. The judgment of conviction should also note that this is a so-called Megan's Law violation.
I'm required to advise you, sir, that you're going to have to comply with the registration laws in that regard. You'll be given a Megan's Law hearing later on down the road that you need not be concerned with [at] this moment. And you'll have to comply with those. If you fail to comply with those requirements, you could then do up to 18 months in jail as a result of the complaint being filed against you for failure to comply. Do you understand that?
[THE DEFENDANT]: Yes, your Honor.
A motion to vacate the entry of a guilty plea is governed by Rule 3:21-1, which requires that the motion be made "before sentencing, but the court may permit it to be made thereafter to correct manifest injustice." A defendant bears the initial burden of demonstrating a plausible basis for the relief sought and that burden is heavier if the plea was entered as part of a negotiated agreement, as was the case here. State v. Luckey, 366 N.J. Super. 79, 87 (App. Div. 2004). In such circumstances, a defendant must demonstrate that at the time the plea was entered, he or she was misinformed or not advised of a material element of the plea agreement. Id. at 88. Failure to advise a defendant of the penal consequences of a plea has been held to justify vacating the orders denying PCR. Jamgochian, supra, 363 N.J. Super. at 227.
Here, at the time defendant entered his plea, the judge never used the words "community supervision for life." We are nonetheless satisfied that the substance of CSL was adequately explained by the court. Further, defendant acknowledged that his attorney reviewed the plea forms with him and that he understood the forms. The plea forms contained a supplemental form entitled, "Additional Questions for Certain Sexual Offenses," which included an explanation of CSL. Defendant answered "Yes" to the question of whether he understood that by pleading guilty, he would be subject to CSL. Moreover, he acknowledged that his attorney also reviewed the forms with him as well.
We conclude that the colloquy between the court and defendant at the time defendant entered his plea was far more than an utterance of community supervision for life label. Jamgochian, supra, 363 N.J. Super. at 227. Consequently, defendant failed to carry his burden of establishing that he was misinformed or not advised of CSL at the time he pled guilty to second-degree sexual assault, and the Law Division judge properly denied his motion to vacate the entry of his guilty plea and there is no basis here to intervene in order to correct a manifest injustice. R. 3:21-1.
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