On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-04-0256.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner and Sabatino.
Defendant, Nelson Ferrer, appeals the Law Division's March 7, 2007 order denying his petition for post-conviction relief ("PCR"). We vacate the order, and remand for an evidentiary hearing. For the reasons we shall explain, such a hearing is warranted to explore whether trial counsel consulted with defendant about potentially filing a direct appeal of his fourth-degree conviction for violating N.J.S.A. 2C:7-2(e).
Defendant has been employed for the past eighteen years as a custodian at the New Jersey Veterans Memorial Home. He has a prior conviction of a sex offense that requires him to register with the police under Megan's Law. Defendant duly registered and re-registered for four consecutive years in 2000 through 2003.
In 2004, defendant moved to Millville. He failed to reregister and notify the police that he had moved, in violation of the requirements of Megan's Law. Defendant claims that he overlooked his registration obligations because he was then having some marital difficulties.
Subsequently, a Cumberland County grand jury issued a two-count indictment against defendant. Count I charged defendant with violating N.J.S.A. 2C:7-2(e), for failing to re-register in 2004 as a convicted sex offender. Count II alleged that defendant simultaneously violated N.J.S.A. 2C:7-2(d), for failing to give the police at least ten days advance notice of his intention to move prior to his change of address to Millville. At the time of the indictment, both N.J.S.A. 2C:7- 2(e) and N.J.S.A. 2C:7-2(d) were believed to be classified as fourth-degree offenses.
On September 26, 2005, defendant reached a plea agreement in which the State agreed to dismiss Count II in exchange for a guilty plea to Count I. The State also agreed to recommend a sentence of probation, with a cap of 364 days in the County jail. The plea was presented in open court that same day.
Thereafter, on November 4, 2005, defendant appeared for sentencing and was sentenced to a three-year term of probation on Count I, plus various fines. The probation was designated as consecutive to the probation on an offense that defendant committed years earlier.
Defendant did not file a direct appeal of his judgment of conviction for the registration offense. The forty-five days to file such an appeal expired on December 19, 2005. See R. 2:4-1(b). Fifty-five days after defendant's sentencing, on December 29, 2005, the Supreme Court decided State v. Gyori, 185 N.J. 422 (2005). The Court reversed a prior 2-1 decision that we had issued on December 22, 2004, in State v. Gyori, 373 N.J. Super. 559 (App. Div. 2004). Adopting Judge Wecker's dissenting opinion from our court, the Supreme Court held that a violation of N.J.S.A. 2C:7-2(e) did not constitute a fourth-degree crime, because the statute did not adequately specify such a criminal exposure.*fn1 Gyori, supra, 185 N.J. at 422; see also Gyori, supra, 373 N.J. Super. at 567 (Wecker, J.A.D., dissenting).
Defendant argues that his trial counsel was ineffective in failing to file a direct appeal of his judgment of conviction. If such an appeal had been filed, defendant contends he would have been in the litigation pipeline and have obtained the benefit of the Supreme Court's ruling in Gyori. Alternatively, defendant contends that his counsel was at least ineffective in neglecting to confer with him and to advise him about the possibility of filing such an appeal. Defendant further asserts that his trial counsel was ineffective at sentencing, in failing to argue several mitigating factors.
After hearing oral argument, the PCR judge dismissed defendant's petition without conducting an evidentiary hearing. The judge held that even if the Supreme Court intended Gyori to have pipeline retroactivity, the new precedent would not apply to defendant because he did not file a direct appeal of his September 2005 conviction under N.J.S.A. 2C:7-2(e). The judge also ruled that trial counsel was not ineffective because, at the time of his client's conviction, the law of our State treated a violation of the statute as a fourth-degree offense. The judge made no finding as to whether or not defense counsel had consulted with his client about the prospect of appealing the judgment of conviction.
Additionally, the PCR judge noted that even if Count I had been stricken on appeal pursuant to the Supreme Court's opinion in Gyori, the charges in Count II involving N.J.S.A. 2C:7-2(d) would have been unaffected by that new case. Hence, the judge reasoned that Count II would have provided an alternate route to convict defendant of a fourth-degree ...