May 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONALD EPPS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, 97-01-0485.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2008
Before Judges Lintner and Alvarez.
This is an appeal of the denial of defendant's petition for post-conviction relief (PCR) without an evidentiary hearing. On appeal, defendant raises the following points:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO APPELLANT'S CASE.
C. APPELLANT'S PETITION FOR POST CONVICTION RELIEF SHOULD NOT BE BARRED AS OUT OF TIME.
D. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO NOTIFY HIS CLIENT THAT HE WOULD BE SUBJECT TO THE SEXUALLY VIOLENT PREDATOR ACT, UNDER N.J.S.A. 30:4-27.
E. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO EFFECTIVELY COMMUNICATE WITH HIS CLIENT.
We reject defendant's contentions and affirm.
On February 26, 1997, defendant, Ronald Epps, in exchange for a recommended custodial sentence not to exceed five years, entered a plea of guilty to first-degree armed robbery of Pamela Davis with the use of a deadly weapon, a razor/box cutter, N.J.S.A. 2C:15-1 (Count One), and fourth-degree possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d (Count Two).*fn1 At the time of entry of the original plea, counsel and the court were under the misapprehension that defendant had no past criminal record. A subsequent presentence report revealed that defendant had a prior record, including three convictions for first- and second-degree aggravated sexual assault and attempted aggravated sexual assault.
On April 21, 1997, the State was permitted to withdraw its original plea bargain and offer a new one. The State's new offer recommended a fifteen-year custodial term with five years of parole ineligibility in return for a plea to the first two counts of the indictment. Defendant accepted the new plea offer and was sentenced to the recommended term. The third count of the indictment was dismissed.
After defendant became eligible for parole, a hearing was conducted on April 11, 2006, to determine whether he should be civilly committed pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Following the hearing, defendant was found highly likely to re-offend and involuntarily civilly committed. On June 15, 2006, defendant filed this PCR petition, claiming ineffective assistance of counsel and excusable neglect for not filing within the five year bar, pursuant to Rule 3:22-12(a).
In State v. Bellamy, 178 N.J. 127, 140 (2003), the Supreme Court held that, prior to entering a plea to a predicate offense under the SVPA, defendants must be advised of the potential of future commitment and that such commitment may be for an indefinite period of up to and including life. The Court made it clear that every sex offender not adequately advised of the possibility of commitment under the SVPA can seek to withdraw his guilty plea by raising the issue while the matter remains on direct appeal. Id. at 140-43. Thus, the decision in Bellamy provided only limited retroactive application, that is, it applied only to pending cases in which the defendant had not exhausted all avenues of direct appeal.
In rendering his decision, the motion judge noted that the SVPA became effective August 12, 1999. Indeed, it was first approved by the Legislature on August 12, 1998, over one year following defendant's revised plea and sentence. Concluding that there is no requirement for a counsel to advise of the consequences of an Act that had not been passed at the time of a plea, the judge correctly denied defendant a PCR hearing on his claim of ineffectiveness of counsel. The judge also appropriately noted that, because defendant's case was not under direct appeal at the time Bellamy was decided, the decision in Bellamy could not be retroactively applied to defendant. Beyond that, Bellamy applies to defendants who plea to an SVPA offense, and defendant's SVPA offenses occurred in 1981 and 1983.
The judge additionally found that defendant failed to demonstrate a prima facie case to warrant an evidentiary hearing on his claim that he received ineffective assistance of counsel because defense counsel only met with him on two occasions and did not discuss appellate issues or explore possible defenses. The judge pointed out that defendant did not allege any specific facts to support a prima facie case that counsel's performance was deficient or that there existed a reasonable likelihood of a different result, but for counsel's deficiency.
It is not necessary for us to set forth or explore the formidable procedural obstacles to any grant of relief. See R. 3:22-3; R. 3:22-4; R. 3:22-5; State v. Mitchell, 126 N.J. 565 (1992). We are satisfied that defendant failed to present a prima facie case to warrant an evidentiary hearing on his claim of counsel's lack of advice as to appellate or trial strategy. When "defendant's allegations are too vague, conclusory, or speculative to warrant an evidentiary hearing, then an evidentiary hearing need not be granted." State v. Marshall, 148 N.J. 89, 158 (citations omitted), cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997). On the record before us, we are satisfied that the judge properly identified defendant's allegations of ineffective assistance as conclusory and devoid of factual assertions to warrant an evidentiary hearing.
Finally, we address briefly defendant's claim that he should not be procedurally barred under Rule 3:22-12(a) because his failure to file for PCR within the five-year limitation period was due to excusable neglect. Although the time bar was raised by the State, the judge never reached the issue. In its appellate brief, the State asserts that we should decide the issue on appeal because enforcement of the time bar will prevent federal intrusion into our sovereign power to sentence offenders. Defendant argues that he did not know during his incarceration that he had become subject to civil commitment upon completing his term for robbery because counsel did not advise him of the consequences of the SVPA and, therefore, the interest of justice requires a relaxation of the time bar.
We decline to respond to the issue. To do so would require us to give an advisory opinion. It is not our function to render advisory opinions. See Crescent Park Tenants Ass'n v. Realty Equities Corp., 58 N.J. 98, 107 (1971); In re Quinlan, 137 N.J. Super. 227, 252 (Ch. Div. 1975), modified and remanded, 70 N.J. 10, cert. denied, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed. 2d 209 (1976). Moreover, in our view the time bar is not applicable here because defendant's reliance on Bellamy, as providing a basis for his claim of ineffective assistance of counsel, is misplaced. Stated another way, even if defendant had filed his motion for PCR after the Court's decision in Bellamy and within the five-year limitation period, his claim of ineffective assistance based upon plea counsel's failure to advise of the SVPA would have been unavailing. For the reasons previously given, a timely PCR filing on those grounds would not have met the limited retroactivity requirement enunciated in Bellamy, much less qualified as deficient performance of counsel.