On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Accusation Nos. 01-01-0017; 01-10-0327 and 02-02-0072.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Cuff and C.L. Miniman.
Defendant Stephen Jaffe appeals from the denial of his petition for post-conviction relief (PCR) in connection with three separate pleas of guilty. First, on January 16, 2001, he pled guilty to an accusation charging him with one count of third-degree burglary, N.J.S.A. 2C:18-2a(1), and on March 26, 2001, the sentencing judge imposed a probationary term on this plea. Second, on October 22, 2001, he pled guilty to an accusation charging him with third-degree assault on a police officer, N.J.S.A. 2C:12-1b(5), and on April 17, 2002, the judge sentenced him to a four-year term of incarceration. Third, on February 11, 2002, defendant pled guilty to an accusation charging him with third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and fourth-degree stalking, N.J.S.A. 2C:12-10b, and on April 17, 2002, the judge sentenced him to a three-year term on the weapons charge, to be served consecutively to the four-year term imposed that day, and to a concurrent eighteen-month term on the stalking charge. The sentencing judge also imposed a concurrent four-year term for his violation of the probationary term imposed on March 26, 2001.
After he had served about three years in prison, defendant filed a motion for a change in custodial sentence, which was denied on April 1, 2005, without prejudice to reconsideration in a few months. A second motion for change of custodial sentence was considered on August 15, 2005, at which time the sentencing judge granted the motion and imposed a four-year probationary sentence with conditions. However, the following day, the judge vacated his order and delayed defendant's release until the Attorney General had time to review defendant's case pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, because defendant had been convicted of rape in 1977.*fn1
On October 12, 2005, the judge denied defendant's motion for a change in custodial sentence and defendant appealed. We affirmed. State v. Jaffe, No. A-1912-05 (App. Div. Dec. 4, 2006), certif. denied, 190 N.J. 256 (2007). By that time, defendant was confined at the Special Treatment Unit (STU) in Avenel.
After his petition for certification was denied, defendant filed a pro se petition for PCR. He alleged ineffective assistance of counsel because counsel failed to inform him that his 2001 and 2002 guilty pleas might subject him to civil commitment under the SVPA. Defendant asserted that, had he known incarceration might lead to civil commitment under the SVPA, he would not have pled guilty to any of the offenses.
Defendant also alleged, with respect to the assault charge, that his counsel did not show any police reports to him or review them with him. He further contended his attorney did not advise him that his ignorance of the victim's status as a police officer would constitute a defense to the charge. Also, his attorney never discussed intoxication as a defense and did not procure hospital records to verify the injuries the officer claimed. As a result, defendant believed he was guilty of the assault-on-an-officer charge and would not have so pled had he known its elements and the potential defenses he had to the charge.
With respect to the stalking, defendant asserted that his attorney did not review the possibility of filing a motion to suppress the evidence, did not review any discovery with him, never explained the requisite mens rea for stalking, and never advised him that mere possession of a weapon is not sufficient for a conviction of possession of a weapon for unlawful purpose. He denied having any unlawful purpose in connection with the knife in his possession. He also claimed he was forced to plead guilty because his attorney required additional money to try the case.
After hearing oral argument on the PCR petition, the judge denied the application without an evidentiary hearing. He found defendant had freely and voluntarily pled guilty and established a factual basis for the pleas. The judge found that State v. Bellamy, 178 N.J. 127 (2003), which requires the judge and counsel to advise a defendant pleading to a sexually violent crime of the potential for civil commitment, applied only to cases on direct appeal at the time the decision was announced. He also found defendant had no direct appeal pending when the Bellamy decision was announced on December 11, 2003. He noted defendant had not pled to a sexually violent crime and, thus, Bellamy did not apply to the pleas at issue here. This appeal followed.
Defendant raises the following issues on appeal:
POINT ONE: DEFENDANT WAS DENIED HIS RIGHT TO FUNDAMENTAL FAIRNESS IN THE CONVICTION PROCEEDINGS BECAUSE HE WAS NOT ADVISED OF THE SERIOUS AND LIFELONG CONSEQUENCES OF THE SEXUALLY VIOLENT PREDATOR ACT AND THE EFFECT THAT HIS INCARCERATION WOULD HAVE ON HIS POSSIBLITY OF A LIFELONG CIVIL COMMITMENT. POINT TWO: THE COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.
We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 121 S.Ct. 2973, 162 L.Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S.Ct. 3055, 120 L.Ed. 2d 921 (1992)), and accord deference to credibility determinations, ibid. (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 552 U.S. 1119, 118 S.Ct. 1059, 140 L.Ed. 2d 121 (1998)). However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the PCR judge." Ibid. (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the ...