September 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIK S. MEYERS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 97-07-1331.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 2, 2008
Before Judges Payne and Alvarez.
Defendant, Erik S. Meyers, appeals from an order of the Law Division denying his petition for post-conviction relief (PCR) and his request for an evidentiary hearing. We affirm.
On July 16, 1997, defendant was charged in a Monmouth County indictment with four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4), and one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). He pled guilty on January 11, 1999 to one count of second-degree sexual assault in exchange for the State's agreement to dismiss the remaining charges and to recommend a sentence of five years of imprisonment. Defendant was sentenced on May 28, 1999 in accord with the agreement.
When defendant's guilty plea was placed on the record, the trial judge reviewed the plea form with defendant in detail, including the section that explained that defendant would be sentenced to "a special sentence of community supervision for life." During his colloquy with the court, defendant acknowledged that he would be subject to community supervision for life and his understanding that if he violated those conditions he could be charged with a separate fourth-degree crime. See N.J.S.A. 2C:43-6.4.
On January 22, 2004, defendant submitted a pro se petition for PCR, which was amplified by counsel on August 22, 2006, asserting that he was not adequately informed as to the meaning of "community supervision for life." In fact, when he signed his conditions of parole before his release from prison, defendant wrote "under duress" on the contract and noted his further objection that he was signing the document without an opportunity to consult an attorney. That is the crux of defendant's objection, as contained in the single point raised in his brief:
THE TRIAL COURT COMMITTED ERROR BY DENYING THE APPELLANT'S MOTION FOR POST CONVICTION RELIEF ON THE GROUNDS THAT HIS COUNSEL WAS INEFFECTIVE FOR NOT FULLY ADVISING HIM OF THE COMMUNITY SUPERVISION FOR LIFE REQUIRED UNDER THE MEGAN'S LAW.
Judge Citta denied the PCR motion after concluding that the plea form sufficiently notified defendant of the imposition of community supervision for life and that, in any event, defendant had failed to prove that he was prejudiced by the lack of a more detailed explanation. The PCR judge further found that the colloquy at the time of the entry of the plea established defendant's detailed understanding of, and satisfaction with, the agreement. The judge concluded that defendant's current dissatisfaction stemmed not from a real lack of understanding when the plea was entered, but rather, from a desire to avoid significant parole conditions.
We note first that the amendments to N.J.S.A. 2C:43-6.4 which clarified that lifetime community supervision was the equivalent of parole supervision for life, were not enacted until 2003. The amending bill, however, did not change the substance of the law. See Pressler, Current N.J. Court Rules, on N.J.S.A. 2C:43-6.4 (2008). This defendant pled guilty approximately four years prior to the amendments.
Every criminal defendant is "entitled to know, with reasonable exactitude, the penal consequences of any criminal charge he or she is called upon to defend against." State v. Thomsen, 316 N.J. Super. 207, 214 (App. Div. 1998) (citing State v. Howard, 110 N.J. 113, 124-25 (1988)). Undoubtedly, plea bargaining is a critical stage of the criminal proceeding at which time a defendant is entitled to the effective assistance of counsel and to which a constitutional right to representation attaches. State v. Taccetta, 351 N.J. Super. 196, 200 (App. Div.) certif. denied, 174 N.J. 544 (2002). Imposition of community supervision for life is "a penal and not a collateral consequence of the sentence." State v. Jamgochian, 363 N.J. Super. 220, 224 (App. Div. 2003); see also, State v. Lucky, 366 N.J. Super. 79, 89-90 (App. Div. 2004).
The underlying principles are well settled. In order to succeed on a claim of ineffective assistance of counsel, a defendant must establish that his counsel's performance was seriously deficient and that the deficient performance prejudiced his right to a fair disposition of the charges.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42 (1987).
The two Strickland prongs may be satisfied if plea counsel misinforms a defendant such that he cannot fairly evaluate a plea offer, and accepts a plea agreement that he otherwise likely would have rejected. Taccetta, supra, 351 N.J. Super. at 200. The first prong of Strickland requires us to assess whether counsel's failure to detail the meaning of community supervision for life constituted deficient representation, as defendant claims.
In Jamgochian, the defendant alleged that he was advised by plea counsel and the judge that he would be able to travel unrestricted even if sentenced to community supervision for life. We remanded for the PCR court to conduct an evidentiary hearing on the questions of whether defendant was actually misinformed about an issue of great importance to him and whether, had the travel restrictions been correctly explained, he would have elected to proceed to trial rather than to plead guilty. Jamgochian, supra, 363 N.J. Super. at 227. Had the travel restrictions been correctly explained, that defendant may indeed have elected to proceed to trial rather than to plead guilty. Ibid.; see also State v. Horton, 331 N.J. Super. 92, 102-04 (App. Div. 2000) (As defendant was told community supervision for life was only a possibility and not a certainty, the matter was remanded for an evidentiary hearing to determine if correct information would have changed defendant's mind as to his plea).
This case, in contrast to Jamgochian or Horton, involves pure speculation, more akin to the claim made in State v. Williams, 342 N.J. Super. 83, certif. denied, 170 N.J. 207 (2001). In Williams, the trial court permitted defendant to withdraw his guilty plea to third-degree endangering the welfare of a child because he asserted that he had not understood the consequences of community supervision for life. Id. at 86. The State appealed. As in this case, the defendant in Williams executed the basic three page plea form, as well as the two page standard supplemental plea form entitled "Additional Questions for Certain Sexual Offenses." Id. at 87. As in this case, the plea judge then engaged in a colloquy with defendant, during which Williams testified as to the knowing, intelligent, and voluntary entry of his guilty plea, his satisfaction with his attorney, and his complete understanding of the plea and its penal consequences. Id. at 87-88.
The court in Williams said:
The fact that defendant first learned of the specific details of community supervision for life when he signed the terms and conditions form two years after being sentenced, is inconsequential. . . .
We reject defendant's argument that . . . unless a defendant is expressly advised that he would be subject to lifetime "parole" he is entitled to withdraw his plea. [Id. at 92.]
We found no error had occurred in Williams, even though that defendant was not explicitly told that community supervision for life meant parole supervision for life as we concluded that the sentence met defendant's expectations. Ibid.
Counsel's performance cannot be judged from hindsight after the clarifying amendment, but rather, must be judged by the standards in effect at the time. When the plea was entered, the plea form that defendant signed, and the colloquy in which defendant engaged, sufficiently explained of the penal consequences of his plea. Therefore, defendant's attorney's representation was adequate.
Furthermore, even if we were to assume counsel's performance was inadequate, defendant has not shown "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed. 2d, 203, 210 (1985) (footnote omitted). The charges arose from the commission of an act of fellatio upon him by his seventeen-year old step-daughter, who was in his custody and care in her mother's absence. The State's proofs were strong, due to the age of the child and the several sexual assaults with which he was charged. If convicted at trial, defendant's sentence was potentially far more than five years. The sentence that he received was the lowest possible within the second-degree range and was imposed on only one count. There simply is no basis to conclude that, if defendant had understood the term "community supervision for life," he would not have entered a guilty plea.
In addition to failing to prove that his attorney's representation was inadequate, defendant has failed to prove that his asserted lack of understanding prejudiced his right to a fair disposition of the charges. Consequently, he does not meet either prong of the Strickland test.
On a final note, defendant suggests that State v. J.J., 397 N.J. Super. 91 (App. Div. 2007), supports his position. J.J. is readily distinguishable. That defendant entered a guilty plea to a Megan's Law offense. Id. at 95-96. He was not advised that, pursuant to Megan's Law, after he was sentenced, he would not be permitted to reside with his wife and her child. Id. at 99. That draconic consequence warranted withdrawal from the guilty plea. Id. at 100. As in Jamgochian, for the defendant in J.J., there was a consequence specific and personal to the defendant as a result of the entry of the plea, about which he was not informed, which might well have caused him to reject it. There is no such consequence to this defendant whose conviction and sentence should therefore stand.
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