July 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MARK ARTIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 01-05-0639.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 19, 2010
Before Judges Alvarez and Coburn.
Defendant Mark Artis appeals the denial of his application for post-conviction relief (PCR). We affirm, essentially for the reasons expressed by the motion judge in his July 16, 2008 written opinion. We add only the following brief comments.
Defendant's points on appeal are:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE THE MERITS OF HIS CONTENTION THAT HE WAS DENIED THE RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY DOES NOT APPLY TO APPELLANT'S CASE.
C. TRIAL COUNSEL FAILED TO GIVE PETITIONER SOUND LEGAL ADVICE AND DID NOT INFORM PETITIONER OF THE CONSEQUENCES OF HIS GUILTY PLEA, SPECIFICALLY, CIVIL COMMITMENT.
Defendant's only substantive claim is that his attorney was ineffective because he failed to inform him about the possibility that, after serving his sentence, he could be civilly committed under the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We will limit our discussion to that claim.
Defendant's initial plea bargain could not be consummated because when he was evaluated at the Adult Diagnostic and Treatment Center (ADTC), pursuant to N.J.S.A. 2C:47-1, he was found to be a repetitive and compulsive offender requiring seX offender treatment. Defendant thereafter negotiated a new plea agreement with the State, in which he entered a guilty plea to fourth-degree sexual contact, N.J.S.A. 2C:14-3b. Defendant, who was nineteen at the time the offenses occurred and twenty-one when he entered his guilty plea, had been indicted for his sexual conduct with two persons who were between the ages of thirteen and sixteen, while all were housed at the Juvenile Medium Security Facility in Burlington County.
Defendant was sentenced in accord with the agreement on February 19, 2003, to eighteen months imprisonment to be served at the ADTC. Defendant received a credit for time served of 512 days. As a result of the substantial credits, defendant was scheduled for release shortly after his arrival. He did not appeal his judgment of conviction. Defendant was not paroled, however, but was instead civilly committed under the SVPA.
Defendant's plea and sentence took place on February 19, 2003. The following exchange occurred between the court and defendant:
Now, you also understand that if you are confined at Avenel... you may, upon completion of your term of confinement, be involuntarily committed to another facility if the Court finds, after hearing that you are a sexually violent predator in need of involuntary... civil commitment. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Did you discuss that with [defense counsel]?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. All right.
Okay. Now, in total, is that your understanding of the plea agreement?
THE DEFENDANT: Yes, Your Honor.
State v. Bellamy, 178 N.J. 127 (2003), was decided on December 11, 2003, nearly ten months after defendant's sentence. In Bellamy, the Court ruled that a defendant who pleads guilty to a sexual offense must be advised, in accord with fundamental fairness, of the possibility of civil commitment under the SVPA. Id. at 138. The Court decided that the rule would be applied prospectively only and to "those cases pending in which the defendant ha[d] not yet exhausted all avenues of direct review." Id. at 140-43. Defendant's matter preceded Bellamy, and was not a pipeline case.
As the motion judge noted, defendant does not dispute the fact that the court advised him about the possibility of civil commitment. Furthermore, he does not deny having signed the pages appended to his plea form setting forth additional questions for certain sexual offenses, which clearly advised him of the possibility of civil commitment under the SVPA. Despite having said in court that he understood that he faced possible commitment, having signed a written acknowledgment of the possibility of commitment, and saying under oath that he discussed the consequences of his plea with his attorney, defendant now asserts that his attorney told him that only individuals who have a "mental condition" are committed, and that, therefore, he would not be included in that group. As a result, defendant contends that he was not given "sound legal advice."
To even characterize this claim of ineffective assistance of counsel as a bare assertion gives it credit to which it is not entitled. In order to successfully assert a prima facie case requiring an evidentiary hearing on PCR, a petitioner "must do more than make bald assertions that he was denied... effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999). The facts contained on the record entirely contradict defendant's claim. He offers nothing but an unsustainable assertion in order to establish ineffective assistance of counsel.
In order to successfully assert an ineffective assistance of counsel claim, a defendant must show that counsel has made errors so grievous that he or she has failed to fulfill the right to counsel guarantee contained in the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987 (citation omitted). A petitioner must also establish that the performance was so deficient as to create a reasonable likelihood that the ineffective assistance materially contributed to the outcome of the proceeding. Fritz, supra, 105 N.J. at 58.
Defendant has not articulated any ineffective assistance. His attorney gave him an explanation, according to defendant's own statement, of the meaning and potential effect of the SVPA upon his freedom. He indisputably acknowledged this during the plea colloquy on February 19, 2003. At the time, Bellamy had not been decided and as a result, even if counsel had failed to explain the possibility of civil commitment, it would not be grounds for a claim of error. Therefore, we concur with the motion judge that defendant has failed to establish any basis for PCR and has fallen far short of establishing a prima facie case for ineffective assistance of counsel.
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