July 14, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRE JACKSON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Accusation No. 95-02-0049.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 12, 2010
Before Judges Cuff and C.L. Miniman.
Defendant Andre Jackson appeals the denial of his verified petition for post-conviction relief (PCR) in connection with his convictions of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a, and second-degree sexual assault, contrary to N.J.S.A. 2C:14-2c. On July 21, 1995, defendant was sentenced to concurrent five-year prison terms on each count. Defendant is no longer in custody but is subject to community supervision for life, N.J.S.A. 2C:43-6.4. The issues in this appeal surround the community supervision for life to which defendant is subject. We affirm.
The facts may be briefly stated.*fn1 Defendant pled guilty to the offenses charged and at his plea hearing testified that on October 2, 1994, he committed an act of sexual penetration on K.M. when she was less than thirteen years old. Specifically, defendant held K.M. down and had vaginal intercourse with her. Defendant also acknowledged punching K.M. in the course of committing the offense. Defendant also pled guilty to committing an act of sexual penetration on O.C. on December 22, 1994. Defendant admitted that he punched O.C. during the commission of the sexual offense.
Defendant signed a Supplemental Plea Form for Sexual Offenses in which he acknowledged, among other things, that he would be required to submit to an examination at the Avenel Diagnostic and Treatment Center to determine if he was a repetitive offender and, if so, might be confined at the Adult Diagnostic and Treatment Center. He also signed a two-page list of "Additional Questions for Certain Sexual Offenses" in which he acknowledged that he must register with the chief law enforcement officer in any municipality in which he might reside and that he would have to re-register if he moved. He further acknowledged that the judge "in addition to any sentence authorized by the code will impose a special sentence of community supervision for life and that any person who violates a condition of a special sentence of community supervision is guilty of a crime of the fourth degree."
At the plea hearing, the court examined defendant's understanding of community supervision for life:
THE COURT: Then the next question is this new law, called Megan's Law.*fn2 Because you're pleading guilty to this crime, you're going to be required to register with the chief law enforcement officer of the municipality in which you reside or, if that place doesn't have a chief law enforcement officer, with the Superintendent of State Police. And if you're considering changing your residence, you must notify the law enforcement agency where you are registered and must reregister with the appropriate law enforcement agency no less than ten days before you intend to reside at the new address. Do you understand that?
THE DEFENDANT: I understand.
THE COURT: And if they find that you are repetitive and compulsive, then you must verify your address every ninety days with the law enforcement people. And if not, if you're not so characterized, then you've got to do it once a year. Do you understand that?
THE DEFENDANT: I understand.
THE COURT: You have to register. If you fail to register, you could be guilty of a fourth degree crime which carries with it a maximum term of eighteen months.
THE DEFENDANT: I understand.
THE COURT: And in addition to all these other things, you will be sentenced to a special sentence of community supervision for life. Do you understand that?
THE DEFENDANT: Community supervision for life. What does that mean?
THE COURT: Your guess is as good as mine if you want to know the truth. I suspect that you will be required to register and check information with somebody just to make sure you're not -- just to make sure that you are properly registered, and if you don't do that, that you could go to jail for eighteen months. I think that's what it means.
Tell you the truth, Mr. Jackson, what it means, I don't think anybody in this room knows what it means.
THE DEFENDANT: It just seems rather vague, that's all.
THE COURT: It is rather vague. I don't know if it's constitutionally vague but it's not specific, that's for sure.
So do you still want to go ahead with this?
THE DEFENDANT: Yes.
THE COURT: I can't tell you what it means so all I can tell you is by agreeing to go ahead with this plea, you take your chances.
THE DEFENDANT: We'll find out.
THE COURT: You want to take your chances?
THE DEFENDANT: Okay.
THE COURT: All right. Also you've got to provide a D.N.A. sample. Okay?
THE DEFENDANT: Okay.
THE COURT: Do you have any questions?
THE DEFENDANT: No.
THE COURT: Anything you want to add, Mr. Barker?*fn3
MR. BARKER: Judge, for purposes of the record, I also informed Mr. Jackson that we don't know what community supervision means at this point. And, furthermore, we don't know whether or not Megan's Law is applicable to someone convicted in New Jersey but residing outside the State of New Jersey.
THE COURT: These are all new questions. It's a brand-new law that went through rather quickly.
Anything to add, Prosecutor?
MS. McCLURE: No, your Honor.
THE COURT: Any questions, Mr. Jackson?
THE DEFENDANT: No.
Community supervision for life was not further discussed when sentence was imposed on July 21, 1995, nor was it mentioned in the judgment of conviction entered on that day.
Defendant filed his first PCR petition on August 30, 1996. He contended that his arrest with respect to one of the two incidents was illegal and his confession was obtained as a result of the exploitation of that illegal arrest. On January 9, 1997, defendant raised additional claims for relief, none of which relate to community supervision for life. On January 28, 1997, the criminal presiding judge scheduled a PCR conference for March 4, 1997. On the latter date, the judge scheduled the matter for a PCR hearing on May 13, 1997. Defense counsel was to submit his brief by April 15, and the prosecutor's response was due May 1. The judge ordered that defendant be produced for the hearing on May 13, 1997. There is no documentation regarding the disposition of defendant's first PCR petition.
Meanwhile, on February 6, 1997, the sentencing judge amended the judgment of conviction to specify that defendant was subject to community supervision for life. This was brought to defendant's attention by the Parole Board in a letter dated August 14, 1997. The Parole Board stated:
Please be advised that the community supervision for life component of your sentence will commence upon the expiration of the service of your present custodial term. Supervision will be provided by the Bureau of Parole and the conditions to be complied with will be established by the State Parole Board. You will receive notification of the conditions of supervision at the time you commence the community supervision for life component of your sentence.
On July 21, 1998, defendant executed an acknowledgment of the general conditions imposed by the Parole Board pursuant to N.J.S.A. 2C:43-6.4. That form required defendant to comply with more than two dozen conditions. Those conditions include residing at a residence approved by defendant's parole officer; obtaining permission to change residence; obtaining permission prior to leaving the state of the approved residence; submitting to drug or alcohol testing at any time; obtaining permission to secure, accept, or engage in any employment or business activity; complying with any curfew established by defendant's parole officer; and permitting defendant's parole officer to visit defendant at his home or elsewhere and confiscate any contraband in plain view. Defendant further acknowledged that he was required to refrain from initiating, establishing, or maintaining contact with any minor, or attempting to do so, and to refrain from residing with any minor without the prior approval of defendant's parole officer. Finally, defendant acknowledged he was required to submit to a search without a warrant of his person, residence, vehicle, or other personal property at any time his parole officer had a reasonable or articulable basis to believe the search would produce contraband or evidence of a parole violation.
When defendant was released from prison in 1998, he returned to New York to reside with his maternal grandmother at an address he had submitted for approval to prison authorities. However, he was charged with violating his parole in this regard. On April 6, 1999, defendant filed a notice of appeal from the February 19 and March 23, 1999, decisions of the Parole Board to disapprove his New York residence, deny his request for transfer to New York, and then to charge him with a fourth-degree parole violation for failing to reside at an approved residence and failing to obtain permission before leaving New Jersey.*fn4
Defendant filed an emergent application with the Appellate Division seeking relief with respect to being compelled by the Parole Board to relocate to New Jersey. Although we denied the relief, we accelerated the appeal, and the clerk required defendant's brief to be filed by June 21, 1999, and the respondent's opposition by July 12, 1999, with any reply filed by July 19, 1999. We summarily decided the appeal on May 11, 1999, dismissing the appeal without prejudice to its refiling upon resolution of the pending fourth-degree charges brought against defendant under N.J.S.A. 2C:43-6.4d.
Defendant wrote to the sentencing judge on May 6, 2001, respecting problems he was having with his lifetime parole. The judge responded on May 16, 2001, and informed defendant that he had to make a formal application. Defendant did so on August 6, 2001, when the Public Defender's Office filed a "Motion to Rescind Community Supervision for Life Requirement on Short Notice." This application was made exactly four years and six months after entry of the amended judgment of conviction and was, thus, timely under Rule 3:22-12(a).
In a certification supporting the motion, defendant's counsel recited various difficulties defendant began experiencing after March 10, 1999, with respect to his residence in New York, his arrest for violating the conditions of his parole, and the March 2001 dismissal of those charges. He related that defendant was being required to advise his employer of his criminal record and parole status, the denial of his application to transfer his parole to New York, and the requirement at the time of the motion that defendant move to New Jersey. The relief sought was rescission of community supervision for life. The record does not disclose whether this application was ever determined by the court.
On two occasions, the Parole Board attempted to transfer defendant's parole to New York; it was successful in doing so in April 2006. Defendant promptly met with his New Jersey parole officer and filled out a transfer request form for permission to reside in New York. Supervision subsequently commenced in New York "under conditions [that] were minimal."
More than ten years after the judge amended the judgment of conviction, defendant filed this PCR petition on October 25, 2007. Relying on State v. Horton, 331 N.J. Super. 92 (App. Div. 1999), defendant sought to vacate his conviction and withdraw his plea. He urged that he had not been told by the sentencing judge that he would be placed on parole for the rest of his life. He asserted the facts of his case were on all fours with those in Horton. He further alleged in his amended verified PCR petition:
In September, 2007, New York parole authorities began supervision with additional conditions never before made known to [p]petitioner, including a curfew, restrictions on his ability to travel outside the five (5) boroughs of New York City and other harsh and burdensome terms of supervision[,] such as random searches of his person and home at any time. These restrictions seriously affected [p]petitioner's daily activities and his ability to find employment and to function at his current employment.
Petitioner never understood the actual restrictions of [c]ommunity [s]upervision for [l]ife prior to September, 2007, and he for the first time realized that his trial counsel was ineffective in representing him at the time of the plea in 1995 when the actual burdens and effects of [c]ommunity [s]upervision for [l]ife were never discussed and explained by his trial counsel prior to or at the time of entry of the plea.
On April 24, 2008, the PCR judge heard oral argument on the application. At the conclusion of the argument the judge placed his decision on the record. The judge found July 21, 1998, when defendant signed the acknowledgment of the conditions imposed through community supervision for life, to be critical in terms of defendant's primary arguments. He found that the issue of community supervision for life was raised at the plea hearing. The PCR judge quoted the colloquy between the plea judge and defendant respecting community supervision for life. The judge found it clear that all parties at the time of the plea lacked any understanding as to what the consequences or the ramifications of the community supervision provisions would be. However, it is further clear, from the context of the entire plea proceeding, that the defendant clearly understood that, in terms of the basic requirements, that he was going to be under the [c]ommunity [s]upervision for [l]ife.
The judge then considered our decision in State v. Jamgochian, 363 N.J. Super. 220 (App. Div. 2003), where we found that the affirmative misinformation given to the defendant respecting Megan's Law prior to his plea required PCR. The PCR judge here found Jamgochian not applicable and relied on State v. Williams, 342 N.J. Super. 83 (App. Div.), certif. denied, 170 N.J. 206 (2001), where defendant was uninformed, as opposed to misinformed, regarding the details of community supervision for life. The PCR judge here took particular note of the fact that defendant was advised by the plea judge that, in going ahead with the plea, he would be "taking his chances," yet defendant still opted to take the plea deal that was offered to him. The PCR judge also found that the application was time-barred because all of the conditions for community supervision for life had been spelled out in the 1998 acknowledgment. Thus, defendant was fully informed at that time, but waited nine more years before filing this PCR petition. The judge found no basis to excuse defendant's failure to have brought a timely petition and denied PCR. An order was entered that day. This appeal followed.
Defendant presents the following issues for our consideration:
POINT ONE -- THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT'S PETITION WAS PROCEDURALLY BARRED.
POINT TWO -- THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.
POINT THREE -- THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL.
POINT FOUR -- DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF (NOT RAISED BELOW).
Additionally, defendant has filed a supplemental pro se brief in which he has raised the following additional issue, which we have renumbered to run consecutively to the points raised in his counseled brief:
POINT FIVE -- COMMUNITY SUPERVISION FOR LIFE SUPERVISION HAS VIOLATED DEFENDANT'S FOURTEEN[TH] AMENDMENT CONSTITUTIONAL RIGHT[S] SINCE SEPTEMBER 2007.
Rule 3:22-12(a) provides in pertinent part:
A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.
This petition was clearly filed more than five years after the amended judgment of conviction was entered in this case on February 6, 1997. However, we are satisfied that defendant on appeal has established excusable neglect.
Defendant sought to have community supervision for life rescinded within five years after the amended judgment of conviction was entered. The record is bereft of any determination made on that application, which although it was not styled as a PCR petition, nonetheless sought PCR. The prosecutor did not object to defendant's application to supplement the record with copies of his 2001 application and did not proffer any additional documents that would demonstrate the 2001 motion had been decided. If the Public Defender failed to ascertain whether the motion had been listed for disposition, counsel surely would have provided ineffective assistance to defendant. As a consequence, we are satisfied that excusable neglect exists, and we will treat this 2007 petition as a renewal of defendant's 2001 application.
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, 522 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]." Id. at 421 (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 factual findings and legal conclusions of the PCR court." Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here as there was no evidentiary hearing and no credibility determinations were made.
Defendant contends that his plea counsel was ineffective because defendant was not advised of the full penal consequences under N.J.S.A. 2C:43-6.4 of pleading guilty to a violation of N.J.S.A. 2C:14-2. In Strickland v. Washington, 466 U.S. 668, 685, 104 S.Ct. 2052, 2063, 80 L.Ed. 2d 674, 692 (1984), the United States Supreme Court explained the constitutional guarantee of effective assistance of counsel for every criminal defendant embodied in the Sixth Amendment. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, the defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).
"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695. Adequate assistance of counsel should be measured by a "reasonable competence" standard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Davis, 116 N.J. 341, 351 (1989).
The two-prong Strickland test applies to claims of ineffective assistance of plea counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed. 2d 203, 210 (1985). With respect to the first prong, the defendant must demonstrate that the advice of counsel was not "within the range of competence demanded of attorneys in criminal cases." Id. at 56, 58, 106 S.Ct. at 369-70, 88 L.Ed. 2d at 208, 210 (internal quotations omitted). The second prong requires proof that counsel's ineffective performance affected the outcome of the plea process. Id. at 59, 106 S.Ct. at 370, 88 L.Ed. 2d at 210. To satisfy the "prejudice" prong, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. Ibid.
"Clarity as to the direct and penal consequences of a defendant's guilty plea promotes the binding resolution of charges because it serves to ensure that a defendant's 'expectations [are] reasonably grounded in the terms of the plea bargain.'" State v. Johnson, 182 N.J. 232, 237 (2005) (quoting State v. Marzolf, 79 N.J. 167, 183 (1979)). A "guilty plea must be made voluntarily, knowingly, and intelligently." State v. Howard, 110 N.J. 113, 122 (1988) (citations omitted); see also Johnson, supra, 182 N.J. at 236 (holding a court may only accept a plea when made voluntarily, knowingly, and intelligently).
"For a plea to be knowing, intelligent and voluntary, the defendant must understand the nature of the charge and the consequences of the plea." Johnson, supra, 182 N.J. at 236. A court must ensure that the defendant is fully aware of the direct and penal consequences of a plea. Ibid. "[A] guilty plea entered without sufficient understanding of the penal consequences is ordinarily invalid. Even misinformation about a collateral consequence may vitiate a guilty plea if the consequence is a material element of the plea." Jamgochian, supra, 363 N.J. Super. at 225 (citations omitted).
The period of possible confinement is a critical piece of information in deciding whether to plead guilty. Howard, supra, 110 N.J. at 124. A defendant must be told the worst possible outcome. State v. Kovack, 91 N.J. 476, 483 (1982) (citation omitted); State v. Bailey, 226 N.J. Super. 559, 566 (App. Div. 1988). A guilty plea must be made with an understanding of the consequences for it to be considered voluntary. Howard, supra, 110 N.J. at 122. Community supervision for life is a direct and penal consequence of a guilty plea. Jamgochian, supra, 363 N.J. Super. at 224. We have previously considered PCR claims respecting community supervision for life on a number of occasions.
In Horton, supra, 331 N.J. Super. at 96, as here, the judge corrected the sentence initially imposed on January 12, 1996, to include community supervision for life. That correction was not made until January 25, 1999, after the defendant had been released from jail. Id. at 96. At the time of the plea, the defendant was advised he would have to register as a sex offender and "may, in fact, be subject to community supervision." Id. at 95. The defendant directly appealed the amended judgment of conviction. Id. at 96.
We rejected the defendant's claim that his resentencing was illegal because it did not "offend either the constitutional prohibitions against double jeopardy or any considerations of fundamental fairness generated by the lapse of time." Id. at 102. Turning to the defendant's claim that he should be permitted to withdraw his plea because he was not apprised of lifetime parole, we noted that "[t]he record shows that the court did tell [the] defendant before accepting his plea that 'you may, in fact, be subject to community supervision.'" Id. at 102-03. The defendant's counsel, who was also plea counsel, represented to us that he did not know that the defendant would be subject to lifetime parole. Id. at 103. The assistant prosecutor conceded that if the defendant did not know he would be subject to lifetime parole, he was entitled to withdraw his plea. Ibid. As a result, we concluded that an evidentiary hearing was required to determine whether the defendant would have tried the case had he known he would be subject to lifetime parole and remanded the matter. Id. at 103-04.
In Williams, supra, 342 N.J. Super. at 86, the State appealed from an order that permitted the defendant to withdraw his guilty plea and vacated his conviction of endangering the welfare of a child by sexual conduct, which had subjected him to the provisions of Megan's Law. At his plea, the defendant acknowledged that he had signed, initialed, and read the supplemental plea form concerning Megan's Law, went over it with his attorney, and his attorney explained everything. Id. at 87. The defendant contended that he did not fully understand the consequences of community supervision for life. Id. at 86. The motion judge found that "'the specific conditions of community supervision for life were not made known to Mr. Williams through no fault of anyone. It just was the state of the law, so to speak.'" Id. at 89. The motion judge accepted counsel's representation that the defendant would not have pled guilty had he known of the specific conditions of community supervision and the consequences for a violation. Ibid.
We distinguished Horton on the ground that no mention of community supervision for life was made at the time of Horton's plea and the judge intimated that the prosecutor would determine any additional condition, which Horton could contest. Id. at 90. We further noted that "Horton's judgment of conviction did not provide for community supervision for life." Id. at 91. Unlike Horton, Williams had been "informed from the very outset that community supervision for life is mandatory and would be imposed as part of his sentence." Id. at 91. Also, the defendant did "complete and sign plea forms designed to inform defendants of material aspects and consequences of a plea," including a Megan's Law offense. Ibid. We concluded that the plea colloquy and the plea forms were sufficient to inform the defendant of the consequences of his plea. Id. at 91-92. We found the fact that the defendant did not learn of the specific details of community supervision until "he signed the terms and conditions form two years after being sentenced" to be inconsequential. Id. at 92. We reversed and reinstated the defendant's conviction.
In Jamgochian, supra, 363 N.J. Super. at 222-23, the defendant pled guilty to second-degree sexual assault and was sentenced as a third-degree offender. He took no direct appeal and was released from prison in October 2001. Id. at 223. Prior to pleading guilty, the defendant inquired of his attorney whether there would be any restrictions on his ability to travel after he was released from prison. Ibid. His attorney stated that he did not believe so, but asked the judge if the defendant would be free to travel. Ibid. The judge replied that he did not know what community supervision for life would restrict, but stated he would not prohibit travel at sentencing. Id. at 223-24. The defendant's plea counsel so advised him. Id. at 224. Counsel certified that he had known the defendant for many years and believed he would not have pled guilty if he had known his travel would be restricted. Ibid.
We distinguished Williams on the ground that the defendant there was merely uninformed of the details of community supervision for life, whereas in Jamgochian, the defendant was misinformed, a distinction we had earlier made in Williams. Id. at 225-26. We also noted that in Horton we remanded the PCR application for the PCR judge to determine whether Horton was misinformed. Id. at 226. We then concluded that the defendant had been misinformed and remanded the PCR application for an evidentiary hearing. Id. at 227.
Finally, in State v. J.J., 397 N.J. Super. 91, 95 (App. Div. 2007), remanded, 196 N.J. 459 (2008), on direct appeal from his conviction on two counts of endangering the welfare of a child by sexual conduct, the defendant urged that he should be entitled to withdraw his plea because he had not been advised of all the penal consequences of the plea. The defendant sought to withdraw his plea prior to sentencing. Ibid. The motion judge denied the motion on November 18, 2005, and sentenced the defendant thereafter. Ibid.
The defendant claimed "that he was not informed that the community supervision provision of his plea would prevent him from living with his new wife and her child." Id. at 99. The judge "did not explain the ramifications of the Megan's Law requirements, and the record d[id] not disclose what, if any, explanation was given by [the] defendant's attorney." Ibid. We considered the sexual-offense plea form and the additional questions for Megan's Law offenses, but were "not satisfied that the questions on the forms would have alerted [the] defendant to the possibility that he could not reside in a home with his new wife and any children she might have." Id. at 100. The record did not reveal that he appreciated this possibility. Ibid. As a result, we were "constrained to vacate the order denying [the] defendant's withdrawal of his guilty plea." Ibid.
Here, unlike Horton, defendant pled guilty in the mid-1990s and was apprised that he would be subject to community supervision for life, not just to community supervision. Also unlike Horton and J.J., this is an appeal from denial of PCR, not a direct appeal from a judgment of conviction or an amended judgment of conviction. This procedural distinction is critical to the outcome. This is also not a case like Jamgochian, because defendant here made no specific inquiry about future restrictions that might be placed upon him and was not misinformed about same.
Whereas in Horton the judge's, defense counsel's, and prosecutor's lack of knowledge about the specific conditions of community supervision supported a vacation of the defendant's guilty plea, here that lack of knowledge precludes the relief sought by defendant. This is so because the issue comes before us as a claim of ineffective assistance of counsel. It is abundantly clear that no one in 1995 knew what all of those conditions might be, because Megan's Law was newly enacted and regulations had yet to be promulgated. L. 1994, c. 133, § 1 to § 7 (effective October 31, 1994); N.J.A.C. 10A:71-6.11 (effective March 16, 1998). See also Doe v. Poritz, 142 N.J. 1, 20, 25 (1995) (noting the "complexities" and "uncertainties" of the newly enacted Megan's Law). As a consequence, it cannot be said that plea counsel's performance was "so ineffective as to make the idea of a fair [proceeding] meaningless," Davis, supra, 116 N.J. at 351. Defendant has simply failed to prove the first prong of Strickland.
With respect to defendant's remaining arguments, Points Four and Five were not raised below and will not be considered for the first time on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Point Three has been rendered moot by our disposition of defendant's claim that his plea counsel was ineffective.