September 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEROY KNIGHT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 95-10-1755.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 2, 2008
Before Judges Payne and Alvarez.
This is an appeal from the denial of a petition for post-conviction relief (PCR) filed by defendant, Leroy Knight. Pursuant to a negotiated plea agreement, on March 12, 1998, defendant was sentenced on count four of Hudson County Indictment No. 1755-10-95, third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), to a five-year term concurrent to a Passaic County sentence defendant was then serving at Adult Diagnostic & Treatment Center (ADTC). Defendant did not pursue a direct appeal. On June 6, 2006, he filed this PCR petition pro se asserting that plea counsel's ineffective assistance warranted the withdrawal of the entry of his guilty plea and a new trial. The application was supplemented by counsel. PCR was denied without an evidentiary hearing. We affirm.
On appeal, defendant raises the following argument:
LEGAL ARGUMENT DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED BECAUSE HIS CLAIMS RAISED WERE OF A CONSTITUTIONAL NATURE AND HE DEMONSTRATED INEFFECTIVE ASSISTANCE OF COUNSEL.
After considering this contention in light of the record, the applicable law, and the motion court's findings, we are satisfied that defendant's argument does not warrant extended discussion on the merits. R. 2:11-3(e)(2). We agree with the trial court's assessment of defendant's PCR motion and affirm, substantially for the reasons stated by Judge Kenny in her oral decision dated March 8, 2007, with only the following comments.
As he did before the PCR judge, defendant claims on appeal that his argument raises constitutional issues, and that he demonstrated ineffective assistance of counsel that warrants relief. When defendant signed his plea form on January 15, 1998, the "Additional Questions for Certain Sexual Offenses" form in paragraph six, captioned "Involuntary Commitment," asked: "Do you understand that if you are incarcerated as a repetitive and compulsive sex offender you may be subject to involuntary commitment following the expiration of your sentence?" In answer to this question, defendant circled "No."
Although no order is included in defendant's appendix, it appears that he has since been committed pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to .38 (SVPA). That act went into effect on August 12, 1999, almost twenty months after the plea agreement was signed.
Although no copy of defendant's presentence report was supplied, we can glean his prior criminal history from the record. On March 12, 1998, the sentencing judge noted that defendant "has a conviction in 1985 for larceny in Superior Court, a sexual assault conviction in 1989, an aggravated sexual assault conviction in 1996, and a burglary conviction in 1994." Defendant was at ADTC when sentenced in 1998, serving twelve years, with a six-year period of parole ineligibility, resulting from the Passaic County conviction for aggravated sexual assault.
Defendant contends that he was misled when he signed the plea form, as he was advised he would not be subject to involuntary commitment. He asserts that had he known that he would be subjected to the SVPA, he would never have pled guilty. The failure to explain this possibility to him, he argues, constitutes ineffective assistance of counsel.
As Judge Kenny pointed out during her oral decision on the PCR, however, defendant's commitment pursuant to the SVPA is not a result of this conviction. N.J.S.A. 30:4-27.26 authorizes commitment for the predicate offense of child endangering only when particular findings are made at sentence. No such findings were made at that time as to defendant.
Most significantly, defendant does not explain how he would have avoided application of the SVPA, even if he were acquitted of the Hudson County indictment, as he was serving a sentence for first-degree aggravated sexual assault and had a prior sexual assault conviction. These two convictions do come within the act's purview and would have subjected him to civil commitment, regardless of the outcome on the Hudson County offense. The SVPA had been in effect for years when defendant became eligible for parole on the Passaic County offense. The assertion that the Hudson County conviction caused the SVPA commitment, therefore, does not have merit.
Had this conviction been the cause of the commitment, defendant would still face the significant procedural obstacle of the time bar contained in Rule 3:22-12(a), which provides:
A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than [five] years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.
This rule is necessary in order to give some finality to judgments of conviction and some closure to litigants.
As time passes after conviction, the difficulties associated with a fair and accurate reassessment of the critical events multiply. Achieving "justice" years after the fact may be more an illusory temptation than a plausibly attainable goal when memories have dimmed, witnesses have died or disappeared, and evidence is lost or unattainable. . . . Moreover, the Rule serves to respect the need for achieving finality of judgments and to allay the uncertainty associated with an unlimited possibility of relitigation. . . . When the petitioner demonstrates excusable neglect, a court may disregard the five-year bar. And as with all of our Rules, where the interests of justice so require, the Rule will be relaxed. [State v. Mitchell, 126 N.J. 565, 575-76 (1992).]
Defendant was convicted of the crime that he now challenges more than ten years ago. Although it is our obligation to closely examine the record to determine whether the interests of justice call for a relaxation of the time bar, defendant does not proffer any reason for the delay in filing.
As defendant did not establish a prima facie case in support of PCR, an evidentiary hearing to resolve his ineffective assistance of counsel claims was not warranted. See State v. Preciose, 129 N.J. 451, 462 (1992). Accordingly, the decision is affirmed.
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