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State v. Gray

July 6, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MITCHELL GRAY, DEFENDANT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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?

DEFENDANT: Yes.

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.

DEFENDANT: Yes.

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 ...


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