August 20, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAMUEL WILSON A/K/A SAMMIE WILSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 95-01-0093.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 11, 2009
Before Judges Lihotz and Baxter.
Defendant Samuel Wilson appeals from an order denying his petition for post conviction relief (PCR) alleging ineffective assistance of counsel requires his conviction be vacated and he be permitted to withdraw a guilty plea. Specifically, defendant argues:
DEFENDANT DID NOT ENTER HIS GUILTY PLEA KNOWINGLY AND VOLUNTARILY BECAUSE THE COURT DID NOT INFORM HIM THAT IT MIGHT LEAD TO CIVIL COMMITMENT. (Partially Raised Below).
DEFENDANT DID NOT ENTER HIS GUILTY PLEA KNOWINGLY AND VOLUNTARILY BECAUSE TRIAL COUNSEL DID NOT INFORM HIM THAT IT MIGHT LEAD TO CIVIL COMMITMENT.
WHERE THE SUBSTANCE OF DEFENDANT'S CLAIM ON PCR IS THAT HIS GUILTY PLEA IS INVALID BECAUSE HE WAS NOT TOLD IT COULD LEAD TO CIVIL COMMITMENT, HE SHOULD BE PERMITTED TO FILE HIS PCR OUT OF TIME BECAUSE: 1) HE DID NOT LEARN THAT HE FACED COMMITMENT UNTIL AFTER THE DEADLINE FOR APPLYING FOR PCR HAD PASSED; 2) HIS CLAIMS INVOLVE CONSTITUTIONAL VIOLATIONS; AND 3) TRIAL COUNSEL WAS INEFFECTIVE FOR NOT RAISING THE CLAIM.
A Passaic County Grand Jury returned Indictment No. 95-01-0093 charging defendant with first-degree robbery, N.J.S.A. 2C:15-1(3) (count one); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) and (4) (count two); first-degree terroristic threats, N.J.S.A. 2C:12-3(a) and (b) and N.J.S.A. 2C:13-3 (count three); third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four); and fourth-degree unlawful possession of a weapon (knife), N.J.S.A. 2C:39-5(d) (count five).
Prior to trial, on April 3, 1995, defendant assented to the terms of a plea agreement. In exchange for defendant's plea to one count of second-degree sexual assault (count two), the State agreed to dismiss all remaining charges. The recommended term of incarceration was ten-years, with a five-year period of parole disqualification.
In a detailed colloquy with defendant, the trial judge sought a factual basis for entry of the plea, and confirmed defendant's knowledge and understanding of the details and consequences of a guilty plea, including Megan's Law requirements, N.J.S.A. 2C:7-1 to -19; community supervision for life, N.J.S.A. 2C:43-6.4; and the need for evaluation and possible confinement at the Adult Diagnostic Treatment Center (ADTC) at Avenel. Further, the court was assured defendant was fully aided by counsel and entered his plea voluntarily.
Subsequently, the court sentenced defendant to a ten-year term of incarceration, requiring five years be served prior to parole consideration, and giving credit for time served. Applicable fines and penalties were imposed. The court dismissed the remaining counts of the indictment. No direct appeal was taken.
In November 2001, prior to the completion of defendant's sentence, the attorney general filed a petition for defendant's civil commitment, pursuant to the provisions of the Sexually Violent Predator Act (Act), N.J.S.A. 30:4-27.24 to -27.38, which became effective August 12, 1999. Defendant was involuntarily committed as a sexually violent predator by order dated November 8, 2001. After annual reviews, defendant's continued commitment has been ordered.
On August 11, 2006, defendant filed his pro se PCR petition. Counsel was appointed and the PCR petition was supplemented. Citing State v. Bellamy, 178 N.J. 127 (2003), defendant argued his conviction must be vacated as a result of counsel's failure to advise him he could face civil commitment when he pled guilty to aggravated sexual assault in April 1995. Defendant asserted he should be permitted to withdraw his plea and proceed to trial. In a written opinion, the court denied defendant's petition.
On appeal, defendant has modified his argument and now suggests counsel's representation was deficient because he failed to advise defendant of possible civil commitment, pursuant to N.J.S.A. 30:4-82.4(b), which was amended in 1994 to broaden the definition of "mental illness" to encompass certain "sexually violent offenders." Defendant's argument is without merit.
We first note, defendant failed to raise this argument below. State v. Arthur, 184 N.J. 307, 327 (2005) (citing Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)). Moreover, defendant's civil commitment was not pursuant to N.J.S.A. 30:4-82.4, but as a sexually violent predator, pursuant to the Act. Defendant cannot challenge his plea asserting he was not advised of a possible collateral consequence, which had no actual impact as a consequence of his plea.
Defendant alternatively suggests he should be afforded the benefits of the relief set forth in Bellamy. In that matter, the Court concluded, civil commitment under the Act is a collateral consequence of a defendant's decision to plead guilty to an enumerated offense. Bellamy, supra, 178 N.J. at 138. Thus, "[t]he failure of either the court or defense counsel to inform defendant that a possible consequence of a plea to a predicate offense under the Act is future confinement for an indefinite period deprives that defendant of information needed to make a knowing and voluntary plea." Id. at 139. The matter was remanded to permit defendant to move to withdraw his plea. Id. at 140.
When determining the retroactive effect of its decision, the Court stated:
[W]e recognize that full retroactivity of this decision would have a disruptive effect on the administration of justice. The lack of data regarding the number and kinds of cases that would be affected by a rule of complete retroactivity and the impact that complete retroactivity would have on the administration of justice mandates that the new rule should apply only to cases pending direct review at the time of the rule's announcement.
We conclude that the rule announced in today's decision--that prior to accepting a guilty plea to a predicate offense, trial courts must inform defendants of possible consequences under the Act--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 (internal citation omitted).]
However, "an inmate convicted prior to enactment of the SVPA 'of a predicate offense under the Act' need not have been informed of the Act's consequences." In re Commitment of J.M.B., 197 N.J. 563, 575 (2009) (quoting Bellamy, supra, 178 N.J. at 138-39).
Thus, Bellamy makes clear that, although it is desirable, and now required, for a person whose convictions may subject him or her to commitment under the SVPA to be informed of such a consequence prior to entering a guilty plea, the lack of that notice does not preclude application of the SVPA to those whose convictions preceded the Bellamy holding. [Ibid.]
As to whether counsel's inability to be prescient and advise defendant he might be subject to civil commitment, pursuant to legislation, which would be adopted more than four years following his plea, we are satisfied this fails to establish a prima facie case of ineffective assistance of counsel. In order to establish ineffective assistance of counsel, a defendant must prove: 1) counsel's performance was deficient, that is, it fell below an objective standard of reasonableness; and 2) counsel's deficient performance prejudiced the defense, that is, there is a reasonable probability that counsel's errors changed the outcome. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Allah, 170 N.J. 269, 283 (2002). With respect to the second prong, a defendant must do more than "show that errors had some conceivable effect on the outcome of the trial." Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Rather, the error "must be so serious as to undermine [the reviewing court's] confidence in the jury's verdict." State v. Sheika, 337 N.J. Super. 228, 242 (App. Div.), certif. denied, 169 N.J. 609 (2001).
Measured by this standard, defendant failed to establish a prima facie case of ineffective assistance of trial counsel. We are further satisfied that Judge Guzman properly analyzed each contention and his order will not be disturbed.
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