April 6, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RALPH WALDRON, JR., DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, No. 01-11-0402.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 25, 2009
Before Judges Parrillo and Messano.
Defendant Ralph Waldron appeals from the denial of his petition for post-conviction relief (PCR). He raises the following issues on appeal:
THE COURT ERRED IN DENYING THE PETITION FOR [PCR] BECAUSE  DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, DUE TO TRIAL COUNSEL'S FAILURE TO INVESTIGATE AND PRESENT A DEFENSE.
THE COURT ERRED IN DENYING THE PETITION FOR [PCR] BECAUSE  DEFENDANT WAS ENTITLED TO AN EVIDENTIAL HEARING AS TO EACH OF THE CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL PURSUANT TO R. 3:22-10 ON THE BASIS THAT HE PRESENTED PRIMA FACIE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL.
THE TRIAL COURT ERRED IN DENYING THE PETITION FOR [PCR] BECAUSE THE DEFENDANT WAS NOT PROPERLY ADVISED OF THE CONSEQUENCES OF HIS PLEA.
THE TRIAL COURT ERRED IN NOT SUBMITTING THE ISSUE OF AGGRAVATING FACTORS TO THE JURY.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
On November 15, 2001, defendant pled guilty to a one-count accusation charging him with aggravated assault in the third degree, N.J.S.A. 2C:12-1(b)(7). On March 23, 2002, he was sentenced in accordance with the plea bargain to three years in prison. Contemporaneous with his anticipated release, the State filed a petition pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and on July 13, 2004, defendant was civilly committed.
In June 2006, defendant filed a pro se PCR petition in which he claimed that the "court failed to inform [him] prior to accepting the plea of th[e] possibility" he would face commitment under the SVPA. After PCR counsel was assigned, defendant filed a supplemental certification in which he alleged he "was not properly, or effectively represented by [his] attorney as he never advised [defendant] of the possibility of civil commitment." He further alleged that "[n]owhere in the judgment of conviction, the plea agreement, the pre-sentence report or in any court hearing was [he] advised that there was the possibility that [he] would be civilly committed[.]"
At the hearing before Judge John H. Pursel held on March 30, 2007, defendant argued that neither the court nor his trial counsel advised him of the potential collateral consequences of his plea, i.e., civil commitment. While acknowledging that aggravated assault was not a "predicate offense" under the SVPA, he nonetheless claimed his counsel provided ineffective assistance by not advising him of the possible consequences before he pled guilty.*fn1
In a written opinion that accompanied his April 27, 2007 order denying defendant's petition, Judge Pursel reviewed defendant's prior criminal record that included convictions for "terroristic threats and sexual contact" in 1984, a conviction for "sexual assault, terroristic threats and criminal restraint" in 1986, and another conviction for "sexual assault," also in 1986. The judge noted "[t]his prior record . . . rendered [defendant] eligible for review to determine whether he qualified for civil commitment." Noting that the Supreme Court's holding in State v. Bellamy, 178 N.J. 127 (2003) was given "limited/pipeline retroactivity," and that defendant had never filed a direct appeal of his conviction, Judge Pursel concluded that the case was "not one to which Bellamy applies."
Lastly, Judge Pursel reasoned that because defendant had pled guilty to an offense that was not a predicate offense under the SVPA, "Bellamy's directive to warn of possible SVPA consequences [wa]s inapplicable. The reasons for [defendant's] current civil commitment [we]re the sexually violent offenses of which [he] has previously been convicted." He denied the petition.
We refuse to consider the arguments raised by defendant in Points I and IV since both are procedurally-barred. Any allegation that trial counsel was ineffective because he did not "conduct the necessary investigation into all the facts of [defendant's] case" could and should have been raised before Judge Pursel. It was not, and we refuse to consider it now. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Moreover, defendant's belated claim of inadequate investigation is nothing more than a "bald assertion," unsupported by the record or even by defendant's own certification. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Rule 3:22-4 provides that
Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or . . . in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.
Defendant's argument in Point IV alleging that the trial judge improperly considered certain aggravating factors in imposing the sentence could and should have been raised on direct appeal, and was not. It is barred by R. 3:22-4. Nor did defendant raise the argument before Judge Pursel. Nieder, supra, 62 N.J. at 234.
We turn then to Points II and III in which defendant contends that his trial counsel provided ineffective assistance because he failed to "properly advise [defendant] of the consequences of his plea." He alternatively argues that he was entitled to an evidentiary hearing on the issue before Judge Pursel considered the argument on its merits. We disagree with both contentions.
While a "claim of ineffective assistance of trial . . . counsel is more likely to require an evidentiary hearing because the facts often lie outside the trial record and because the attorney's testimony may be required[,]" it remains within the Court's discretion whether such a hearing is necessary. State v. Preciose, 129 N.J. 451, 462 (1992); R. 3:22-10. In considering defendant's petition, Judge Pursel accepted the factual claim that he was not advised at the time of his guilty plea that civil commitment under the SVPA was a possible collateral consequence. Having resolved any disputed facts, if indeed any existed, in defendant's favor, Preciose, supra, 129 N.J. at 462-63, there was no need for Judge Pursel to conduct an evidentiary hearing to resolve an essentially legal issue.
To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test formulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 57 (1987). First, he must show "'that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693). Second, a defendant must prove that he suffered prejudice due to counsel's deficient performance. Strickland, supra, 466 U.S. at 691-92, 104 S.Ct. at 2066-67, 80 L.Ed. 2d at 696. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, supra, 105 N.J. at 58. Further, in order to demonstrate ineffective assistance of counsel in the context of a guilty plea, a defendant can meet the second prong of the Strickland/Fritz test only by demonstrating "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.'" State v. DiFrisco, 137 N.J. 434, 528 (1994) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 210 (1985)).
We have held "that current incarceration for an SVPA index offense is not a prerequisite for commitment under the SVPA." In re Commitment of P.Z.H., 377 N.J. Super. 458, 459 (App. Div. 2005). Thus, defendant was exposed to civil commitment not based upon the aggravated assault to which he pled, but rather based upon his prior convictions for sexual offenses, as Judge Pursel noted.*fn2
In Bellamy, supra, 178 N.J. at 139-40, the Supreme Court held that "prior to accepting a plea to a predicate offense under the [SVPA], the trial court should ensure that a defendant understands that, as a result of his  plea, there is a possibility of future commitment and that such commitment may be for an indefinite period, up to and including lifetime commitment." The Court further concluded that the new 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 143. Thus, when Bellamy was decided, December 11, 2003, defendant's time to appeal had long expired, and the decision's limited retroactivity would not have extended to defendant's case.
Defendant's ineffective assistance of counsel claim, measured against the Strickland/Fritz analytic framework, must therefore obviously fail because trial counsel's performance was not deficient. When defendant pled guilty, there was no recognized obligation placed upon the court or counsel to advise defendant of the collateral consequences of a guilty plea to a SVPA predicate offense.
Moreover, defendant pled guilty to aggravated assault which is not a predicate offense under the SVPA. No decision has yet held that trial counsel, or the judge, has the duty to advise a defendant pleading guilty to a non-predicate offense that he might be subject to involuntary commitment under the SVPA based solely upon his prior convictions.*fn3 Thus, even if Bellamy was applicable to defendant's case, trial counsel's performance was not deficient.
We find the balance of defendant's arguments to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).