May 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAYMOND E. BROWN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-06-1347.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 30, 2008
Before Judges Cuff and Lisa.
On March 5, 2003, defendant entered a negotiated guilty plea to first degree aggravated sexual assault, N.J.S.A. 2C:14-2a. He is serving an eight-year term of imprisonment subject to a NERA*fn1 parole ineligibility term. He appeals from the denial of his petition for post-conviction relief. We affirm.
At the time defendant entered his plea, he executed the applicable forms attendant to the plea. Defendant acknowledged that he was subject to confinement at the Adult Diagnostic and Treatment Center (Avenel), if a psychological examination revealed that his conduct was characterized by a pattern of repetitive and compulsive behavior. Defendant also acknowledged that he was subject to involuntary commitment at the conclusion of his sentence "if the court finds, after a hearing, that you are a sexually violent predator in need of involuntary civil commitment."
Defendant acknowledged that he was subject to the registration, address verification, notification, community supervision for life and DNA testing requirements of Megan's Law, N.J.S.A. 2C:7-1 to -21; 2C:43-6.4. Defendant executed a supplemental plea form for cases governed by NERA. He acknowledged that he was pleading guilty to first degree aggravated sexual assault and would be "required to serve 85% of the sentence imposed for that offense before [he] will be eligible for parole on that offense[.]"
At the plea hearing, the assistant prosecutor reviewed the terms of the plea agreement. In the course of outlining the ramifications of the plea, the assistant prosecutor stated that defendant must serve eighty-five percent of the sentence and he could be committed for longer if he was subject to an involuntary commitment. Judge Donio asked defendant if his attorney had explained everything on the plea forms. Defendant responded affirmatively.
On July 18, 2003, defendant was sentenced in accordance with the plea agreement to an eight-year term subject to the NERA eighty-five percent parole ineligibility term. Furthermore, in accordance with the Avenel assessment, the judge provided that defendant would serve his term at Avenel.
Defendant filed a notice of appeal. The appeal was dismissed because counsel opined that the issues he sought to raise were best presented through a petition for post-conviction relief. In his petition, defendant asserted that he did not receive effective assistance of counsel because counsel failed to completely investigate the charges, coerced defendant to enter a guilty plea, failed to fully advise him of the provisions of the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and failed to provide proper advice regarding NERA. Counsel was assigned and submitted a brief which argued that the plea colloquy did not comport with the rule announced in State v. Bellamy, 178 N.J. 127 (2003).
In his oral opinion, Judge Donio held that defendant was adequately informed of the possibility of civil commitment at the conclusion of his penal sentence pursuant to the SVPA. The judge also noted that defendant was extended term eligible and received a very favorable sentence. He rejected the contention that defendant was uninformed of all of the consequences, direct and indirect, of his plea or that trial counsel was ineffective.
On appeal, defendant presents the following arguments:
THE COURT COMMITTED PLAIN ERROR CAPABLE OF PRODUCING AN UNJUST RESULT IN ACCEPTING A PLEA WITHOUT INFORMING THE DEFENDANT THAT HE FACES THE POSSIBILITY OF A CIVIL COMMITMENT, THAT MAY BE FOR AN INDEFINITE PERIOD OF TIME, INCLUDING A LIFETIME COMMITMENT.
THE COURT COMMITTED PLAIN ERROR CAPABLE OF PRODUCING AN UNJUST RESULT IN ACCEPTING A PLEA THAT CONTAINED THE WRONG N.E.R.A. FORM, INCLUDED INACCURATE REFERENCES TO AVENEL, AND MISSTATED THE NUMBER OF JAIL CREDIT DAYS DEFENDANT WOULD RECEIVE (PARTIALLY RAISED BELOW).
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.
THE CUMULATIVE EFFECT OF THE ERRORS IN THE POINTS ABOVE DENIED PETITIONER HIS RIGHT TO A FAIR HEARING.
Pursuant to the Sixth Amendment of the United States Constitution, every criminal defendant is guaranteed assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 691-92 (1984). "[W]hether retained or appointed," such counsel must "ensure that the trial is fair"; therefore, "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 685-86, 104 S.Ct. at 2063, 80 L.Ed. 2d at 692 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed. 2d 763, 773 n.14 (1970)). The New Jersey Constitution extends the same right to counsel. N.J. Const. art. I, ¶ 10; State v. Fritz, 105 N.J. 42, 58 (1987).
In order to establish a prima facie case of ineffective assistance of counsel, defendant must demonstrate a reasonable likelihood of succeeding under the two-prong test established by Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. First, defendant must show that defense counsel's performance was indeed deficient. Ibid. Second, defendant must demonstrate that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. at 2068, 80 L.Ed. 2d at 698. The precepts of Strickland and its tests have been adopted by New Jersey. Fritz, supra, 105 N.J. at 57-58.
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. Further, because prejudice is not presumed, Fritz, supra, 105 N.J. at 61-62, a defendant must demonstrate how specific errors of counsel undermined the reliability of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S.Ct. 2039, 2047 n.26, 80 L.Ed. 2d 657, 668 n.26 (1984).
Defendant's ineffective assistance of counsel claim rises or falls on the information presented to defendant and known by him at the time of his plea. As outlined in this opinion, defendant was advised through the forms he executed, the explanation of his attorney, and the discussion in the courtroom at the time of his plea that the offense to which he pled guilty was subject to NERA. Therefore, he would be required to serve at least eighty-five percent of the sentence imposed before he could be eligible for parole. It is of no consequence that the form used referred to the initial iteration of NERA adopted in 1997. At the time defendant committed the offense to which he pled guilty, aggravated sexual assault was designated as an offense that was subject to the extended parole ineligibility provisions of NERA. N.J.S.A. 2C:43-7.2d.*fn2
Defendant correctly states that he should have been informed of the possible impact of SVPA at the time of his plea. The record reveals that defendant possessed this information.
In State v. Bellamy, supra, the Court held that a defendant must be informed of the civil commitment possibilities of the SVPA prior to acceptance of a guilty plea to a sexual offense. 178 N.J. at 138-40. Although involuntary civil commitment under the SVPA is a civil remedy and a collateral consequence of a plea, the Court held that disclosure of the possibility of future confinement for an indefinite period was required to allow a defendant to enter a knowing and voluntary plea. Id. at 138-39. The Court directed that this rule should be afforded pipeline retroactivity. Id. at 143.
Once defendant dismissed his appeal, he surrendered the protection of the benefits of the Bellamy rule. Nevertheless, we address the merits of his contention.
The Court directed the Criminal Practice Committee and the Administrative Director to revise the plea form to include an appropriate reference to the SVPA. Id. at 140. We are mindful that a form that specifically addresses the consequences of the SVPA has been devised and that the form used at the time of this plea differs from the current version. On the other hand, the plea form in use at the time of defendant's plea expressly referred to the possibility of involuntary civil commitment following the completion of defendant's term of imprisonment. Moreover, Judge Donio received an acknowledgement from defendant that he had reviewed the forms with his attorney and that his attorney had explained each entry to him. Under the totality of the circumstances, the plea appears to be a knowing and voluntary plea in all respects. Therefore, defendant has also failed to establish that he was deprived of the ineffective assistance of counsel.