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State v. Bautista


December 17, 2008


On appeal from the Superior Court of New Jersey, Law Division, Warren County, Accusation No. 03-03-0106-A.

Per curiam.



Submitted December 3, 2008

Before Judges Stern and Lyons.

Defendant appeals from the denial of his petition for post conviction relief, and argues "the trial court erred in denying [his] motion for post-conviction relief without conducting an evidentiary hearing." He had pled guilty to an accusation charging two counts of first-degree aggravated sexual assault and one count of endangering the welfare of a minor over a four-year period, in exchange for a "flat" fifteen-year sentence. He received that sentence, with the last five years to be served at the Adult Diagnostic and Treatment Center (ADTC) because he was found to come within the purview of the Sex Offender Act. See N.J.S.A. 2C:47-1 to -3.*fn1 Significantly, while the assaults occurred at different times, defendant was charged in an accusation with offenses that ended as of the day before the June 29, 2001, amendment to the No Early Release Act (NERA) took effect, so NERA did not apply. See N.J.S.A. 2C:43-7.2.

We affirm the order denying PCR, substantially for the reasons expressed by Judge John H. Pursel in his memorandum attached to his order of April 23, 2007. We add only the following: Question 8 on the form defendant executed relating to "Additional Questions for Sexual Offenses Committed on or after December 1, 1998" asks if defendant understands the possibility of an "involuntary civil commitment" if he is found to be "a sexually violent predator." The question is designed to satisfy the command of State v. Bellamy, 178 N.J. 127 (2003).

Moreover, defendant has acknowledged that he was assisted by an interpreter while reviewing the form with counsel and during the plea colloquy. In addition, although somewhat summary, the judge through the interpreter expressly asked defendant at the time of plea whether he understood the consequences of a finding by the court "after hearing that you are a violent sexual predator, in the need of involuntary civil commitment."

In this case the plea colloquy leaves a lot to be desired in terms of assuring an understanding by a non-citizen who does not speak English (and who was preoccupied by potential deportation), but we nevertheless cannot conclude that enough was developed in the petition or by counsel at the PCR hearing, to warrant an evidentiary hearing, see State v. Cummings, 321 N.J. Super. 154, 164 (App. Div.), certif. denied, 162 N.J. 199 (1999). The complaints about defendant's lack of understanding about the ADTC commitment and sentence must fail because these subjects were reviewed in detail at the plea hearing. Moreover, at least prior to any commitment under the Sexually Violent Predator Act (SVPA) the record provides no basis on which to conclude that, even with additional information, defendant would have rejected the plea offer which was negotiated to avoid NERA. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 210 (1985).*fn2

The saving of the child "from the humiliation of a trial" was not "cooperation" within the meaning of factor 12, N.J.S.A. 2C:44-1(b)(12), and even if it was, the absence of its consideration would not make the sentences "illegal" and cognizable on PCR. Nor does counsel's failure to advance the cooperation constitute ineffective assistance, as it undoubtedly would not have impacted on the negotiated sentence.

In any event, the absence of a finding of a mitigating factor does not make a sentence within the authorized statutory range illegal for purposes of post conviction relief. See e.g., State v Flores, 228 N.J. Super. 586, 591-92 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989).

The order denying PCR is affirmed.

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