May 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KAREEM WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 92-10-1407.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 16, 2008
Before Judges Cuff and Simonelli.
Defendant Kareem William is serving an aggregate fifteen-year term of imprisonment with a seven and one-half year period of parole ineligibility following his plea of guilty to two counts of aggravated sexual assault while armed, N.J.S.A. 2C:14-2a(4); one count of attempted aggravated sexual assault while armed, N.J.S.A. 2C:5-1; 2C:14-2a(4); one count of armed robbery, N.J.S.A. 2C:15-1; one count of armed burglary, N.J.S.A. 2C:18-2; and one count of aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5). He has been declared a sexually violent predator and has been involuntarily committed under the Sexually Violent Predator Act (SVPA).*fn1 Defendant appeals from the denial of his petition for post-conviction relief. We affirm.
Defendant entered his guilty plea in 1993. In his petition, defendant argues that his plea was not knowing and voluntary because he was not informed that he could be subject to involuntary civil commitment in accordance with the SVPA. He also contends that his attorney provided ineffective assistance of counsel because he did not inform defendant of this possible outcome.
Judge Meehan dismissed the petition. In doing so, he noted that the relief sought by defendant was akin to a motion to retract his guilty plea rather than post-conviction relief and he was not entitled to any relief. Alternatively, the judge suggested defendant could contest the order of commitment.
On appeal, defendant raises the following arguments:
POINT I- THE LOWER COURT ERRED IN DENYING THE PETITION SINCE DEFENDANT'S GUILTY PLEA WAS NOT KNOWING AND VOLUNTARY. DEFENDANT HAD NEVER BEEN ADVISED THAT HE COULD BE SUBJECT TO CIVIL COMMITMENT UNDER THE PROVISION OF THE SEXUALLY VIOLENT PREDATOR ACT.
POINT II- THE LOWER COURT ORDER MUST BE REVERSED SINCE LIMITED RETROACTIVE APPLICATION OF THE SUPREME COURT'S DECISION IN STATE V. BELLAMY, 178 N.J. 127 (2003) IS UNCONSTITUTIONAL.
POINT III-THE LOWER COURT ORDER MUST BE REVERSED SINCE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL DURING THE PLEA BARGAINING STAGE.
POINT IV- THE LOWER COURT ORDER MUST BE REVERSED SINCE THE FIVE-YEAR TIME BAR SHOULD NOT BE APPLIED TO BAR DEFENDANT'S CLAIMS. POINT V- THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING AND THE LOWER COURT ORDER MUST THEREFORE BE REVERSED.
We agree with the assessment of Judge Meehan that the relief sought by defendant is akin to a motion to withdraw a guilty plea. A plea may be withdrawn after sentence "to correct a manifest injustice." R. 3:21-1. The decision to allow withdrawal of a guilty plea is committed to the discretion of the trial judge. State v. Herman, 47 N.J. 73, 76 (1966).
In exercising its discretion the court must weigh the policy considerations which favor the finality of judicial procedures against those which dictate that no man be deprived of his liberty except upon conviction after a fair trial or after the entry of a plea of guilty under circumstances showing that it was made truthfully, voluntarily and understandingly. [Id. at. at 76-77.]
Moreover, when a defendant seeks to withdraw a plea after sentencing, the trial judge weighs the State's interest in finality more heavily and applies a higher standard than to a similar motion before sentencing. State v. Johnson, 182 N.J. 232, 237 (2005); State v. McQuaid, 147 N.J. 464, 487 (1997).
A trial court is not obliged to inform a defendant of all consequences that flow from a plea, but the judge is required to ensure that the defendant is informed of all direct and penal consequences of the plea. Johnson, supra, 182 N.J. at 236. Thus, when a defendant was not informed of the enhanced parole ineligibility term feature of the No Early Release Act, N.J.S.A. 2C:43-7.2, that applied to the offense to which he was prepared to plead guilty, the Court held that the defendant was entitled to seek the vacation of his plea. Id. at 241.
Generally, a defendant is not entitled to information about the collateral consequences of his guilty plea. State v. Bellamy, 178 N.J. 127, 134 (2003); State v. Howard, 110 N.J. 113, 122 (1988). Nevertheless, 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.
Here, defendant's argument that he should be allowed to vacate his plea fails for two reasons. First, the Bellamy rule applies only to those cases that were active at the trial level or on direct appeal at the time of rule announcement. Ibid. Defendant pled guilty in 1993 and was sentenced in 1994. He did not file a direct appeal. Defendant's case falls well outside of the limited relief afforded by the Bellamy retroactivity. Second, defendant's application to withdraw his plea is not founded on misinformation or no information of a known collateral or indirect consequence of his plea. Enacted in 1998, the SVPA was not effective until August 1999. Defendant could not expect to be informed of a consequence of his plea that did not exist at the time of his plea.
For the same reasons, defendant's ineffective assistance of counsel argument must fail. A defense attorney is required to provide accurate information about the penal consequences of a plea and must not misinform a defendant of the collateral consequences of a plea. State v. Garcia, 320 N.J. Super. 332, 339 (App. Div. 1999). A defense attorney is not required to be a prognosticator of legislative developments five years in the future.
We, therefore, affirm the April 19, 2007 order.