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State v. Gray


July 6, 2009


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 02-12-2914.

Per curiam.


Submitted May 28, 2009

Before Judges Axelrad and Parrillo.

Defendant Mitchell Gray appeals from a Law Division order denying his motion for post-conviction relief (PCR). We affirm.

On October 20, 2003, the eve of trial, pursuant to a negotiated agreement, defendant pled guilty to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). In return, the State agreed to dismiss two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and another count of child endangerment. The State retained the right at sentencing to seek the maximum term, including a period of parole ineligibility.

At the plea hearing, defendant acknowledged under oath that he had touched a six-year-old child's vaginal area for his own sexual gratification. After being assured that defendant was satisfied with his attorney, Judge Meehan conducted an extensive inquiry into defendant's understanding of the consequences of his plea. Specifically, defendant was probed as to his awareness that his guilty plea to child endangerment subjected him to Megan's Law, N.J.S.A. 2C:7-1 to -11; community supervision for life; an Avenel evaluation; and the possibility of doing more time should he be found compulsive and repetitive and committed to the Adult Diagnostic and Treatment Center (ADTC) at Avenel. Immediately thereafter, defendant was also advised that he could be subject to involuntary civil commitment after completing his sentence pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38:

THE COURT: Do you understand that if you are confined to the Adult Diagnostic and Treatment Center, you may, upon completion of your term or confinement be involuntarily committed to another facility if a Court finds that after your hearing that you're, indeed can have a voluntary civil commitment; do you understand that?


THE COURT: That's something that will take place in the future, I can't tell you whether we'll have such a hearing or whether you're required to go to such a hearing.


In questioning defendant, the judge essentially paraphrased paragraph 8 of the supplemental plea form, which is titled "Additional Questions for Certain Sexual Offenses Committed on or After December 1, 1998." Defendant's signature appears at the bottom of the form, along with those of defense counsel and the assistant prosecutor. In addition to defendant's signature, indicating that he understood the eight additional warning paragraphs, "[YES]" is circled in response to Question Number 8, which indicates that defendant was aware he could be involuntarily civilly committed. The question on the form indicates that defendant understood that he could, at the conclusion of his term, be civilly committed if he were determined to be a sexually violent predator.

Based on the Avenel evaluation, defendant qualified for commitment to the ADTC, but at sentencing, defendant requested not to be committed there for treatment. Accordingly, he was sentenced to a five-year state prison term with a two-and-one-half-year parole bar. Appropriate fees, penalties and conditions were also imposed. At the expiration of his sentence, on June 21, 2006, the State initiated commitment proceedings against defendant, as a result of which defendant was temporarily civilly committed, and, shortly thereafter, indefinitely committed as a sexually violent predator, pursuant to the SVPA, to the Special Treatment Unit (STU) Annex in Avenel, where he is presently confined.

Defendant did not appeal his judgment of conviction, but instead filed a timely PCR application seeking to have his guilty plea vacated, alleging that counsel was constitutionally ineffective for failing to discuss the possible SVPA consequences with him prior to his guilty plea and that the court failed to accurately inform him of the possibility of involuntary commitment. Judge Meehan, who also presided over defendant's guilty plea hearing and sentencing, denied the PCR application, concluding:

The defendant relies upon State v. Bellamy, 178 N.J. 127 (2003), to support his position that this court should permit the defendant's plea to be withdrawn.

Specifically, Bellamy held that defendants who plead guilty to a predicate offense under the S.V.P.A. must be informed by the court of the possibility of future confinement prior to accepting the guilty plea. However, after review of the transcripts and plea form itself, this court notes that the defendant was not only made aware of the possibility of this, but also he initialed and signed the plea form indicating that these are the consequences.


Here, all transcripts and the plea bargain forms show the defendant understood the plea and the rights he was waiving.


In the case at bar, the defendant states in his own certification that when asked by the court if he understood that he could be involuntarily committed, he answered yes, of course, because he feared he could lose the benefit of the plea bargain. Thus, this court is hard-pressed to believe that even if the defendant did not understand the conditions, the decision to plead guilty would not have changed.

The transcript shows that he wanted to enter his plea. The court went over the Sexual Violent Predators Act provision that could apply to him, and he said yes, and I'm sure that was done because of the Bellamy case, which told us that we should tell everybody about it, and we told him about it specifically, it was adopted and changed at that time to have them answer that question, the plea form was, and now he comes back after the event's happened.

Finding no support in the record for any of defendant's claims, the PCR judge denied defendant's request for an evidentiary hearing and any further relief.

On appeal, defendant reiterates the same arguments he made below. We deem them not of sufficient merit to warrant extended discussion in a written opinion, Rule 2:11-3(e)(2), and accordingly affirm for the reasons stated by Judge Meehan in his oral opinion of December 14, 2007. We add, however, only the following comments.

It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that but for counsel's deficiency, he would not have pled guilty and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 56, 59, 106 S.Ct. 366, 369-70, 88 L.Ed. 2d 203, 208-10 (1985); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. DiFrisco, 137 N.J. 434, 456-57 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

Relying on Bellamy, supra, 178 N.J. at 140-43, defendant contends that even though he was advised of the possibility of civil commitment under the SVPA, he was under the impression that this consequence would only attend completion of an Avenel commitment. We disagree.

To be sure, the judge at one point while discussing an Avenel placement, also mentioned the possibility of civil commitment under the SVPA upon completion of defendant's sentence. However, that reference, neither expressly nor implicitly, precluded the civil commitment consequence attending a state prison term as well. And nothing in the plea colloquy reasonably gave rise to the restrictive limitation that defendant now belatedly advances. On the contrary, the plea colloquy, in conjunction with the plea form, leaves no doubt that defendant was properly and adequately informed of the collateral consequences of his guilty plea, consistent with Bellamy. Indeed, if defendant harbored any confusion or doubt on this score, he was afforded ample opportunity for clarification from both counsel, with whom he expressed satisfaction, and the court. Instead, he expressed both knowledge of the plea consequences after adequate consultation with counsel and completion of the plea form, and a willingness to plead guilty to avoid significant penal exposure otherwise.

Furthermore, the PCR judge explicitly found that defendant would have pled guilty irrespective of the prospect of indefinite civil commitment, a factual finding made by the same judge presiding over defendant's guilty plea and sentencing, and therefore deserving of our deference. See State v. Smullen, 118 N.J. 408, 416 (1990).



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