June 27, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RICHARD GIBBS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 96-02-0105.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 20, 2008
Before Judges Skillman and LeWinn.
Defendant appeals from an order of the trial court entered on June 26, 2006, denying his petition for post-conviction relief. He raises the following issues for our consideration:
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
DEFENDANT'S PLEA WAS COERCED BY VINDICTIVE PROSECUTION.
THE PETITION FOR POST-CONVICTION RELIEF SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING WHEREIN DEFENDANT COULD HAVE ESTABLISHED THOSE CLAIMS WHICH REQUIRED THAT EVIDENCE BE TAKEN.
Having reviewed the entire record, we conclude that defendant's arguments are without merit. We affirm substantially for the reasons set forth in the decision of Judge Patricia LeBon. We add only the following comments.
Burlington County Indictment No. 97-02-0105 charged defendant as follows: four counts of first-degree kidnapping in violation of N.J.S.A. 2C:13-1(b)(1); five counts of first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2 (a)(1); eight counts of second-degree sexual assault in violation N.J.S.A. 2C:14-2(b); fifteen counts of second-, third-, and fourth-degree endangering the welfare of a child in violation of N.J.S.A. 2C:24-4; and three counts of fourth-degree lewdness in violation of N.J.S.A. 2C:14-4(b)(1).
The charges stemmed from defendant's ongoing sexual abuse of six girls, all under the age of twelve, including his own daughter. Over a period of time, in some cases dating back to 1993, defendant not only engaged in sexual conduct with these girls but also videotaped them naked and in various sexual poses for his own sexual gratification.
Defendant's conduct was brought to the attention of the Medford Township Police Department on August 21, 1996, when the mother of one of the young girls reported to the police information she had just learned from her daughter. On August 29, 1996, officers from the Medford Township Police Department, the Burlington County Prosecutor's Office and the New Jersey State Police executed a search warrant on defendant's residence and automobile. The officers seized numerous videocassettes that revealed child pornography and depicted defendant committing acts of sexual penetration and other sexual conduct against several of the children.
Defendant was arrested immediately following execution of the search warrant. He provided statements to the Medford Township Police Department and to the Burlington County Prosecutor's Office, in which he admitted to having had a sexual relationship with one of the girls, to filming the girls depicted in the seized videocassettes, and to possessing and trading child pornographic materials via the Internet.
Defendant filed a motion to suppress the evidence seized pursuant to the search warrant. Following a hearing on September 10, 1997, the court denied defendant's motion.
On January 22, 1998, defendant entered into a plea agreement whereby he pled guilty to the following charges: two counts of second-degree sexual assault; six counts of second-degree endangering the welfare of a child; and one count, as amended, of first-degree aggravated assault. At the time of his plea, defendant had a Miranda*fn1 motion pending, as well as a motion to recuse the trial judge.
At his plea hearing, defendant was represented by two attorneys. Under questioning by the court, defendant stated his understanding and acceptance of the plea agreement, including:
(1) the sentencing recommendations; (2) the fact that he would be evaluated at the Adult Diagnostic and Treatment Center in Avenel; and (3) that he would be subject to Megan's Law, N.J.S.A. 2C:7-1 to -19.
The court questioned defense counsel about defendant's pending motions: "Is it your anticipation at the time of sentencing to withdraw those motions?" Counsel answered: "Yes, Your Honor." The court asked defendant if he understood that he was waiving his pre-trial motions as part of the plea agreement. Defendant responded: "Correct."
Defendant acknowledged that he had read and understood his plea form and signed it voluntarily. Defendant then gave the court a factual basis for his plea. Defendant stated that he was satisfied with the services of both his attorneys and thought that they had "done a good job on [his] behalf so far[.]"
On July 16, 1998, defendant was sentenced, pursuant to the negotiated plea agreement, to an aggregate forty-five-year term of imprisonment with a fifteen-year parole ineligibility period.
Defendant filed an appeal to this court, alleging a lack of probable cause to justify the search warrant and that his sentence was excessive. In an unpublished decision, we rejected defendant's arguments regarding the search warrant, affirmed his convictions, but remanded the matter for reconsideration of sentence. State v. R.A.G., No. A-1517-99 (App. Div. February 6, 2001).
The sentencing remand resulted from our conclusion that, in "rendering her findings with respect to aggravating and mitigating factors, the judge did not link her conclusions to the separate convictions entered. She instead considered each offense as a fragment of the same overall criminal episode." Id. at 10. We added:
We also perceive no sound basis to disturb the sentencing judge's specific findings that the aggravating factors described in N.J.S.A. 2C:44-1a(1), -1a(2), -1a(3), -1a(4) and -1a(9) were present, and that no mitigating factors existed. These were awful crimes. Defendant took advantage of his position as athletic coach and lured his young victim into illicit sexual activities. There can be no excuse for defendant's despicable conduct.
We do not suggest that the overall sentence was necessarily excessive. We are nevertheless persuaded that fairness calls for amplification of the judge's reasons for imposing the sentence. [Id. at 10-11.]
On July 24, 2002, the trial judge re-imposed the same sentence upon defendant, after placing on the record further amplification of her reasons. Defendant appealed the resentencing. On July 10, 2003, following argument on the excessive sentence oral argument calendar, Rule 2:9-11, we affirmed. The Supreme Court denied defendant's petition for certification on January 21, 2004. State v. Gibbs, 178 N.J. 454 (2004).
On June 24, 2003, defendant filed his petition for post-conviction relief as well as a motion to recuse the trial judge.
The recusal motion was heard and denied on February 17, 2006; the trial judge thereafter denied defendant's motion for post-conviction relief on June 27, 2006.
In her decision, Judge LeBon found first that defendant's ineffective assistance of counsel claim relating to his sentence was procedurally barred, as his sentencing arguments had been previously heard and adjudicated on appeal. R. 3:22-5. The judge next rejected defendant's argument that he received ineffective assistance because counsel did not explain that, by pleading guilty, he was waiving his right to pursue previously filed motions, including his Miranda motion. The judge read into the record excerpts from the transcript of defendant's plea hearing on January 22, 1998, wherein defendant stated that he understood he was waiving his then-pending motions, and his attorney affirmed his intention to dismiss those motions at sentencing. The judge concluded on this point:
[C]learly [defendant] was present when this discussion took place. And, if that was not [defendant]'s understanding, he had the opportunity at that point in time to say something to somebody. . . . [A]nd the proceedings could have been stopped and there could have been some further discussion. But, in any event, he had the opportunity to raise that issue on direct appeal, because he knew about it, and he didn't [a]nd, therefore he is procedurally barred.
The trial judge rejected defendant's claim that his counsel was ineffective for failing to advise him that he could face civil commitment after his parole date pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. In support of this argument, defendant relied upon the Supreme Court's decision in State v. Bellamy, 178 N.J. 127, 139-40 (2003), holding:
In the future, prior to accepting a plea to a predicate offense under the [Sexually Violent Predator] Act, the trial court should ensure that a defendant understands that, as a result of his or her plea, there is a possibility of future commitment and that such commitment may be for an indefinite period, up to and including lifetime commitment. [(Emphasis added.)]
The Court established "pipeline retroactivity" for that holding, meaning that the new requirement would apply "in this case and those cases pending in which the defendant has not yet exhausted all avenues of direct review." Id. at 143. Bellamy was decided on December 11, 2003.
As noted, on January 21, 2004, the Supreme Court denied defendant's petition for certification from our July 10, 2003 order affirming his sentence. On February 2, 2004, defendant filed a motion for reconsideration of the denial of his petition for certification. In that motion, defendant raised the same argument he later presented on post-conviction relief, seeking relief under Bellamy, supra. On April 26, 2004, the Supreme Court denied defendant's motion for reconsideration.
In denying post-conviction relief on this issue, the trial judge noted:
[T]he claim . . . was raised on motion for reconsideration, and it is not clear to the Court that that was the state of the law in 1998. And, there is nothing presented in any of this that that was the state of the law to the extent that [defendant] would be entitled to any of that.
We concur with the trial judge's conclusion that defendant is entitled to no relief under Bellamy, supra. As of December 11, 2003, defendant had "exhausted all avenues of direct appeal." Ibid.
Finally, we consider defendant's "vindictive prosecution" claim to be "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(2).