October 29, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
THADDEUS J. THOMAS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 90-02-0258.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 29, 2008
Before Judges Lisa and Sapp-Peterson.
Defendant appeals from an order denying his post-conviction relief (PCR) petition. On July 16, 1990, pursuant to a plea agreement, defendant pled guilty to first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a. As recommended in the plea agreement, he was sentenced on April 19, 1991 to sixteen years imprisonment with an eight-year parole disqualifier, to be served concurrently with a sentence defendant was then serving. Defendant did not appeal his conviction or sentence. On September 8, 2000, as defendant was about to be released from incarceration, the State initiated a civil commitment action against him pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Defendant was found to be in need of commitment under the SVPA, and, as of the time of the PCR proceedings, he remained confined under the SVPA.
On September 21, 2005, defendant filed a pro se PCR petition. He alleged he was wrongfully civilly committed because he pled guilty to aggravated sexual assault in 1990 although he was innocent. He alleged he was pressured into pleading guilty because his attorney informed him he would probably be found guilty and could receive an extended term sentence as a persistent offender of as much as forty years imprisonment with a twenty-year parole disqualifier. He contended his civil commitment was improper because it "violates the plea contract" and because he has "iron-clad, genetic evidence of [his] innocence." He attached to his PCR petition the referenced evidence, namely a report of the Federal Bureau of Investigation (FBI) laboratory of June 15, 1990.
The matter came before Judge Wertheimer on August 18, 2006. Defendant had been assigned counsel. At the hearing, counsel referred to the memorandum he had filed, but we have not been furnished with a copy of that document. Defendant's attorney argued that defendant's guilty plea was fatally defective as not being knowing and voluntary because he was not advised of the potential SVPA consequences after he completed service of his sentence. He further argued that because the FBI laboratory report indicated that DNA analysis was inconclusive, defendant would have had a good chance of acquittal had he gone to trial, and that defendant told his trial attorney he wanted to go to trial. Appellate counsel further argues that because the six-year-old victim had been seriously injured in the attack, she might have had difficulty in providing a reliable identification of defendant as her assailant. PCR counsel contended that trial counsel pressured defendant into pleading guilty.
Without ordering an evidentiary hearing, Judge Wertheimer issued a written decision on August 18, 2006 and entered an order denying the PCR petition. This appeal followed.
Defendant argues on appeal:
DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD BE GRANTED.
THE COURT SHOULD SET ASIDE DEFENDANT'S PLEA AGREEMENT BECAUSE THE PLEA WAS COERCED AND THE DEFENDANT WAS NEVER INFORMED OF THE FULL CONSEQUENCES OF THE PLEA AGREEMENT.
THE DEFENDANT WAS DENIED HIS BASIC CONSTITUTIONAL RIGHT TO EFFECTIVE COUNSEL.
THE SENTENCE IMPOSED BY THE COURT PURSUANT TO THE DEFENDANT'S PLEA AGREEMENT WAS ILLEGAL AND EXCESSIVE.
We reject these arguments and affirm.
Judge Wertheimer accepted defendant's plea on July 16, 1990. Defendant acknowledged under oath that he was pleading guilty voluntarily, that his attorney answered all of his questions, and that he was satisfied with his attorney's representation. He understood and voluntarily waived his constitutional rights, including the right to a trial by jury. The judge expressly asked defendant whether anyone forced him to give up his rights, to which defendant answered in the negative. The judge asked defendant whether he had "any questions or concerns that you feel your attorney has not satisfactorily answered for you," to which defendant answered in the negative.
In providing his factual basis, defendant stated he had sexual intercourse with the victim, who he knew was six years old. The victim was the daughter of defendant's paramour, and looked to him as a father figure. Evidence in the record revealed that this was a brutal attack. Judge Wertheimer described it in his August 18, 2006 opinion thusly:
Petitioner abducted a six year old female, the child of his then-girlfriend, led her to Warinaco Park, brutally raped her and then left her for dead. The girl was found in a coma, barely alive with her teeth knocked out, dirt in her mouth and tearing from her vagina to her rectum.
If a defendant argues that the ineffective assistance of counsel led to the entry of a guilty plea, the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), applies. Hill v. Lockhart, 474 U.S. 52, 57-58, 106 S.Ct. 366, 369-70, 88 L.Ed. 2d 203, 209-10 (1985); State v. Chung, 210 N.J. Super. 427, 434 (App. Div. 1986) (applying the Strickland test to guilty pleas entered in state court). Accordingly, to prevail on the ineffective assistance claim, the defendant must satisfy two prongs.
First, the defendant must show that the attorney's representation "fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Specifically, the voluntariness of a represented defendant's guilty plea "depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.'" Hill, supra, 474 U.S. at 56, 106 S.Ct. at 369, 88 L.Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed. 2d 763, 773 (1970)). Reviewing courts must indulge in a strong presumption that counsel provided reasonable assistance. Chung, supra, 210 N.J. Super. at 434 (citing Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695).
The defendant must also demonstrate that the attorney's deficient performance prejudicially affected the plea process. "[T]he defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, supra, 474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed. 2d at 210. Prejudice is not presumed. State v. Fritz, 105 N.J. 42, 61-62 (1987).
The SVPA did not exist when defendant pled guilty and when he was sentenced. It became effective on August 12, 1999. L. 1998, c. 71 §§ 1-15. We agree with Judge Wertheimer's conclusion that counsel could hardly be faulted for failing to advise defendant of the potential consequences of a law that did not exist. Further, defendant is not assisted in this argument by his reliance on State v. Bellamy, 178 N.J. 127, 131 (2003), which held that prior to accepting a plea to a predicate SVPA offense, the trial court must inform a defendant of the possible consequences under the SVPA. The Court "recognize[d] that full retroactivity of this decision would have a disruptive effect on the administration of justice," and therefore held that the rule "shall be applied in this case and those cases pending in which the defendant has not yet exhausted all avenues of direct review." Id. at 142-43. As we stated, defendant never filed an appeal, and his opportunity for direct review ended forty-five days after entry of his judgment of conviction on April 19, 1991. See R. 2:4-1(a). Therefore, defendant was not even close to being in the Bellamy pipeline and is not entitled to invoke the Bellamy rule.
We find unpersuasive defendant's argument that his trial counsel was deficient for not taking the case to trial. The victim knew defendant and indeed viewed him as a father figure. Identification was never an issue in this case. Strong forensic evidence existed to establish the occurrence of the sexual assault, and strong medical evidence supported the viciousness of the attack. Defendant left the home with the victim, and his story to the police that he was attacked by a group of individuals and did not again see the victim, was simply incredible. The FBI laboratory report does not enhance defendant's position. Issued one month before defendant pled guilty, the report concluded by stating:
Additional Laboratory examinations consisting of Mineralogy, latent fingerprint and DNA analyses are continuing. You will be advised of the results of these examinations and the disposition of the submitted items in subsequent reports. The current caseload in the Laboratory is such that these examinations may be expected to require approximately 5 months to complete. If any developments occur in this case such as dismissal of the charges or guilty pleas which would eliminate, the necessity for conducting these examinations, please advise the FBI Laboratory DNA Analysis Unit immediately (202-324-5436).
While awaiting that further analysis, defendant decided to plead guilty.
In entering his guilty plea, defendant freely admitted his guilt under oath and described with sufficient specificity the events supporting his guilt. Judge Wertheimer evaluated defendant's credibility and was satisfied that his sworn testimony was credible, thus establishing that defendant committed the crime and that he freely and voluntarily admitted to it, without coercion or threats.
The plea agreement also provided that the State would refrain from seeking an extended term sentence as a persistent offender, for which defendant was apparently eligible (although we have not seen the documentary evidence regarding his prior crimes). Defendant chose to limit his exposure and accept a negotiated plea agreement. Trial counsel cannot be faulted for assisting in that regard, and Judge Wertheimer did not err in concluding there was no ineffective assistance here.
Defendant's contention that his current confinement constitutes an illegal sentence which is beyond that agreed to in the plea agreement and imposed by the sentencing judge lacks merit. He is not serving a criminal sentence. He is civilly committed under the SVPA. In re Civil Commitment of J.H.M., 367 N.J. Super. 599 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). Therefore, defendant is not serving a criminal sentence at all, let alone an illegal sentence.
Finally, we find no mistaken exercise of discretion in failing to convene an evidentiary hearing. Such hearings in PCR proceedings are discretionary, and a defendant must first establish a prima facie case of ineffective assistance. State v. Preciose, 129 N.J. 451, 462 (1992). Defendant's pro se petition made no such showing. See R. 3:22-8 (requiring that a PCR petition must set forth with specificity the facts upon which the claim is based). Nor was anything raised at oral argument in the PCR proceeding to satisfy the threshold showing requirement.
Judge Wertheimer decided the PCR issue on substantive grounds. He did not invoke the five-year time bar provided by Rule 3:22-12(a), and neither do we. However, we note in passing that defendant has asserted no facts showing that his delay of nearly ten years beyond the limitation period was due to excusable neglect, nor has he demonstrated any exceptional circumstances to justify relaxation of the time bar. State v. Goodwin, 173 N.J. 583, 595 (2002).
© 1992-2008 VersusLaw Inc.