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State v. Veres


August 22, 2008


On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 98-07-0690.

Per curiam.


Submitted August 12, 2008

Before Judges Sapp-Peterson and Baxter.

Defendant Russell Veres appeals from an August 10, 2007 order that denied his petition for post-conviction relief (PCR). We affirm.


On July 27, 1999, defendant entered a negotiated plea of guilty to one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b). During the plea colloquy, the judge advised defendant, who was under oath, that his conviction for second-degree sexual assault subjected him to community supervision for life (CSL) pursuant to the provisions of N.J.S.A. 2C:43-6.4. The following discussion occurred:

THE COURT: Do you understand also that there will be an obligation of community supervision?


THE COURT: Do you understand that that could be a community supervision obligation for your lifetime?


Immediately thereafter, the judge discussed the plea form entitled "Additional Questions for Certain Sexual Offenses" (supplemental plea form). Question four on that two-page supplemental plea form provides as follows:

Community Supervision for Life

Do you understand that if you are pleading guilty to the crime of . . . sexual assault . . . the Court, in addition to any other sentence, will impose a special sentence of community supervision for life?

Defendant answered "yes" to that question. The judge asked defendant during the plea colloquy whether he had read the supplemental plea form and understood it at the time he signed it. He answered "yes." Defendant also said that if he had any questions concerning the material on that supplemental plea form, his attorney had answered such questions to his satisfaction. Finally, defendant acknowledged that all of the answers he provided on the supplemental plea form were "true and accurate."

After defendant provided a factual statement for his plea of guilty to the crime in question, the judge accepted defendant's plea of guilty. At the conclusion of the proceeding, the judge specifically found that defendant "has demonstrated his understanding of the plea agreement and its terms."

Defendant was sentenced on January 7, 2000, by a different judge. During that sentencing proceeding, the judge did not impose the community supervision for life that is required by N.J.S.A. 2C:43-6.4. Specifically, the judge neither mentioned CSL during the sentencing proceeding nor included CSL in the judgment of conviction (JOC) that he prepared and signed. Six months later, the judge apparently became aware of his error. Consequently, on July 10, 2000, he prepared an amended JOC that added the requirement of community supervision for life.*fn1 As we understand the record, the amended JOC was filed without the court conducting a new sentencing proceeding. Stated differently, the judge appears to have simply prepared and filed the amended JOC and forwarded it to prison authorities without bringing defendant back to court for a re-sentencing proceeding. Defendant did not file a direct appeal from either the January 7, 2000 or the July 10, 2000 JOC.

On August 10, 2006, defendant filed a petition for post-conviction relief in which he raised a single claim: his January 7, 2000 conviction should be vacated because trial counsel was ineffective for failing to explain to defendant his possible civil commitment as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 2C:47-5.*fn2

Early in 2007, counsel for defendant became aware for the first time of the July 10, 2000 amended JOC that added the CSL requirement. Defendant did not file an amended or supplemental petition. Instead, he chose to rely on a March 12, 2007 letter from his attorney to the judge as the mechanism by which he raised additional PCR claims.

In that letter, he argued: 1) the preparation of the July 10, 2000 amended JOC constituted an in absentia proceeding that was conducted in violation of Rule 3:21-4(b); 2) during the plea colloquy on July 27, 1999, the court failed to establish that defendant understood the full extent of his obligations under CSL and additionally failed to provide defendant with a copy of the document entitled "Community Supervision for Life General Conditions"; 3) the judge misstated the nature of CSL during the plea colloquy when he advised defendant that such supervision "could be community supervision for your lifetime" (emphasis added) when, in fact, N.J.S.A. 2C:43-6.4 requires lifetime supervision; and 4) defendant's failure to file a direct appeal should be excused because at the time any such appeal would have been filed, defendant was unaware of the existence of the July 10, 2000 amended JOC that added the CSL requirement.

A hearing on defendant's PCR petition was conducted on July 23, 2007. During that hearing, the judge addressed defendant's claims arising under the SVPA,*fn3 as well as the CSL claims that were raised in his attorney's March 12, 2007 letter.

As to defendant's claims concerning CSL, the judge began by addressing defendant's argument that the issuance of the July 10, 2000 amended JOC, which contained the CSL requirement, constituted an impermissible in absentia sentencing proceeding. The judge disagreed, reasoning that the preparation of the amended JOC was not a re-sentencing proceeding, but was instead simply a technical correction of the original JOC. The judge stated: "What was . . . done was administerial [sic] duty . . . . It does not change things and I do find and hold that it does not require a defendant to be brought back to be advised of the same sentence he was previously getting and just to watch the judge write it on there and sign it again." Consequently, the judge rejected defendant's claim that the failure of the court to formally re-sentence him in open court in July 2000 was a due process violation that entitled defendant to vacate that sentence.

Next, the judge concluded that defendant failed to demonstrate any excusable neglect for his failure to file his PCR petition within five years of July 10, 2000. See R. 3:22-12(a). Notwithstanding the judge's conclusion that defendant's claims concerning CSL were time-barred, the judge addressed those claims on the merits and rejected them. The judge reasoned:

[Defendant claims] that the court misstated the nature of the community supervision for life by stating that it could be for a lifetime, when the community supervision for life actually does not permit judicial discretion, but instead mandates a lifetime. . . . But . . . [a] court has no discretion when sentencing; it must sentence to community supervision for life.

In writing, the defendant was advised . . . that he had this exposure. Whether there is later on the possibility of a reduction after fifteen years, . . . I know not about that business, I never got involved in it, I do not comment on it. . . . [T]here are [statutory] provisions that can, in fact, reduce it.

It appears clear that the defendant received in writing and signed the straightforward advice, and that's the purpose of putting it in writing and giving the defendant a copy of the plea agreement thereafter. He signed it, it says it, and that's the fact. I deny the application on that ground. [(Emphasis added).]

Finally, the judge addressed defendant's claim that by failing to provide defendant with a copy of the document entitled "Community Supervision for Life General Conditions," the judge who had taken the plea failed to ensure that defendant understood the full extent of his obligations under CSL. The judge observed that the document in question is issued to inmates by the Department of Corrections once a defendant begins serving his sentence; however, the form "is not something that the court gives to a defendant or defendant's counsel during a plea or a sentencing." For that reason, the judge concluded that defendant failed to establish that the court was required to have provided a copy of the document in question to defendant at the time defendant entered his guilty plea on July 27, 1999.

On appeal, defendant argues:





We begin by addressing defendant's claim in Point I that the PCR judge erred when he concluded that defendant's claims concerning CSL were time-barred because defendant did not demonstrate "excusable neglect" for his failure to comply with the five-year filing requirement established by Rule 3:22-12(a). That Rule specifies that a PCR petition must be filed within five-years of the "judgment or sentence sought to be attacked." If the petition is filed after more than five years have elapsed, the defendant is required to demonstrate "exceptional circumstances" that excuse such delay. Ibid. We need not tarry long in discussing this claim. Contrary to defendant's assertions, the judge did not dismiss defendant's claims as time-barred. Although the judge did conclude that defendant had failed to demonstrate valid reasons for violation of the time-bar, the judge nonetheless addressed each of defendant's CSL claims on the merits. Consequently, there is no need for us to decide whether the judge's conclusions respecting the requirements of Rule 3:22-12(a) were correct.*fn4 Because the judge addressed defendant's claims concerning CSL on the merits, we do so as well and now turn to an analysis of defendant's contentions.


In Point II, defendant argues that the sentence imposed on July 10, 2000, was an impermissible in absentia sentencing proceeding that denied defendant his Fifth, Sixth and Fourteenth Amendment due process rights. Rule 3:22-2 provides four grounds for post-conviction relief. Those grounds include a "[s]ubstantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey." R. 3:22-2(a). Consequently, we must determine whether the imposition of CSL in the July 10, 2000 amended JOC constituted an in absentia sentencing proceeding that violates defendant's right to due process of law.

The State acknowledges that the imposition of CSL merely through the issuance of an amended JOC without defendant being present in court was "an error." We agree. No sentence shall be imposed "unless the defendant is present or has filed a written waiver of the right to be present." R. 3:21-4(b). Indeed, after imposing sentence, the judge is required to advise a defendant of the right to appeal and, if the defendant is indigent, of the right to appeal as an indigent. R. 3:21-4(h); see also State v. Molina, 187 N.J. 531, 543-44 (2006).

Thus, defendant correctly argues that the judge's imposition of CSL by merely preparing the amended JOC in July 2000 without bringing defendant before the court for re-sentencing violated the provisions of Rule 3:21-4(b) and (h). That violation of the Rule does not, however, inevitably lead to the conclusion that the impermissible in absentia sentencing proceeding, without more, violated defendant's right to due process. Additionally, defendant has not presented any support for his argument that the Rule violation entitled him to the vacating of his sentence. Accordingly, we reject the claim that defendant raises in Point II.


We turn next to Point III in which defendant argues: 1) trial counsel was ineffective because counsel failed to advise defendant that he would be subject to community supervision for his entire life rather than for a limited period; and 2) the judge who accepted defendant's guilty plea failed to assure himself that defense counsel had discussed with defendant all of the consequences of CSL. Defendant argues that "[w]ith all due respect to the trial court and former defense counsel, the . . . record is replete with mistruths, half-truths, contradictory and conflicting statements as to the penal and CSL consequences flowing from the plea, culminating in a virtually incomprehensible record [that] preclud[es] a knowing and intelligent plea."

To prove ineffective assistance of counsel, defendant must demonstrate that counsel's performance was deficient and that this deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2064, 80 L.Ed. 2d. 674, 693 (1984). Performance is deficient "when counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To show prejudice, the defendant must demonstrate that there is 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Ibid. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694. The New Jersey Supreme Court has adopted the Strickland test. State v. Fritz, 105 N.J. 42 (1987).

Although this court must defer to the trial court's factual findings that underpin its determination, this court owes no deference to the determination itself. State v. Cleveland, 371 N.J. Super., 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004). Whether the trial court's fact-finding satisfies the applicable legal standard is a question of law subject to plenary review on appeal. Ibid.

We begin our analysis by recognizing that community supervision for life is a mandatory part of defendant's sentence resulting from his guilty plea. See N.J.S.A. 2C:43-6.4(a). Thus, to enter a plea voluntarily and knowingly, defendant must be made aware of this consequence of his plea. See R. 3:9-2 (providing that a court may not accept guilty plea unless the plea is made voluntarily "and with an understanding of the . . . consequences of the plea").

The judge must ensure that the defendant is made fully aware of the "direct" and "penal" consequences of his guilty plea. State v. J.J., 397 N.J. Super. 91, 99 (App. Div. 2007), certif. granted, 194 N.J. 446 (2008). CSL is considered a direct and penal consequence of a plea of guilty. Ibid. A defendant who asserts that he was not fully advised of the meaning of community supervision for life must show that he was "'misinformed about a material element of a plea negotiation' or that his or her 'reasonable expectations, grounded in the terms of the plea agreement' were not fulfilled, and that he or she 'is prejudiced by the enforcement of the agreement.'" State v. Luckey, 366 N.J. Super. 79, 88 (App. Div. 2004)(quoting State v. Howard, 110 N.J. 113, 122-23 (1988)). However, "the plea will not be vacated if knowledge of the consequences would not have made any difference in the defendant's decision to plead." Howard, supra, 110 N.J. at 123. With these principles in mind, we turn to an analysis of defendant's claims. Those claims fail for several reasons.

First, defendant has never asserted, either by way of a supplemental PCR petition or a certification, that he would not have pled guilty if he had understood that he would be on community supervision for his entire life as opposed to merely facing the possibility that CSL would last for his entire life. Because defendant has not demonstrated that any such alleged misunderstanding would have made a difference in his decision to plead guilty, his claim that trial counsel and the judge violated his rights must fail. See ibid.

Second, the record supports the judge's conclusion that defendant was indeed aware that community supervision would last for his entire life. Not only did defendant answer affirmatively to the question on the supplemental plea form that made that requirement clear, but he also acknowledged, in his answer to the judge's question, that when he signed the supplemental plea form, he understood its provisions. He also stated under oath that if he had any questions concerning the material on the supplemental plea form, his attorney had answered such questions to his satisfaction. Not only did that plea form specifically provide that the court "will impose a special sentence of community supervision for life" (emphasis added), but defendant acknowledged during the plea colloquy his understanding "that there will be an obligation of community supervision."

While it is true that the judge explained that such supervision "could be" for a lifetime, rather than explaining that such supervision "would be" for a lifetime, we are satisfied, as was the PCR judge, that the plea colloquy, when analyzed in conjunction with defendant's answer to the unambiguous question on the supplemental plea form, demonstrates that defendant fully understood that he would be subject to community supervision for his entire life. That conclusion is strengthened by the absence of any evidence in the record that trial counsel failed to explain the mandatory nature of lifetime supervision. As we have observed, defendant has never submitted a certification or an amended petition making any such allegation. His failure to do so lends support to our conclusion that defendant has failed to overcome the presumption established by Strickland that counsel rendered "reasonable professional assistance." Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694.

Third, we reject defendant's claim that his guilty plea must be vacated because the trial judge failed to fully explain to him all of the details of his obligations under community supervision for life. We agree that "the mere utterance of a label," State v. Jamgochian, 363 N.J. Super. 220, 227 (App. Div. 2003), does not satisfy the court's obligation under Rule 3:9-2 to determine whether "a defendant fully understands 'the nature of the charge and the consequences of the plea.'" State v. Kovack, 91 N.J. 476, 484 (1982)(quoting Rule 3:9-2). Nonetheless, as we observed in Jamgochian, "the court should at least assure itself that defense counsel has discussed the matter with his client and defendant understands the nature of community supervision for life as the functional equivalent of life-time parole." Jamgochian, supra, 363 N.J. Super. at 227.

Here, the record demonstrates that defense counsel did discuss CSL with defendant. Unlike J.J., supra, 397 N.J. Super. at 100, where the question on the supplemental plea form would not have alerted the defendant "to the possibility that he could not reside in a home with his new wife and any children she might have," here, defendant has failed to point to any particular aspect of his obligations under CSL that were not explained. As we observed in Jamgochian, "[i]f the trial court is aware that a particular aspect of a penal consequence needs clarification then it should take the time to explain further. In some instances, the community supervision can have a greater deleterious effect on the defendant than the actual period of incarceration." 363 N.J. Super. at 227.

Defendant points to no aspect of community supervision that will have a particularly "deleterious effect." See ibid. Consequently, defendant's acknowledgment that his attorney explained to him the features of CSL, when combined with defendant's failure to point to any aspect of CSL about which he was not informed, satisfy the requirement of Rule 3:9-2 that a defendant understand "the consequences of the plea." See Rule 3:9-2.


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