On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 05-03-0530.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing and LeWinn.
Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
Defendant was charged in a three-count indictment with criminal sexual contact, a crime of the third degree, N.J.S.A. 2C:14-3b; luring a child, a crime of the second degree, N.J.S.A. 2C:13-6; and endangering the welfare of a child, a crime of the third degree, N.J.S.A. 2C:24-4a. Defendant eventually entered a negotiated plea of guilty to one count of endangering the welfare of a child and in August 2005 was sentenced to three years incarceration, to be served at the Adult Diagnostic and Treatment Center at Avenel. Following the completion of that sentence, defendant was not released, however. Rather, he was civilly committed as a sexually violent predator. N.J.S.A. 30:4-27.24 to -27.38. In July 2007, defendant filed a petition for post-conviction relief, contending that the attorney who represented him in connection with the guilty plea was ineffective for not advising him that he faced the possibility of civil commitment. The trial court denied defendant's petition without conducting a plenary hearing, and this appeal followed. On appeal, defendant makes one contention.
DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED BECAUSE HIS CLAIMS RAISED WERE OF A CONSTITUTIONAL NATURE AND HE DEMONSTRATED INEFFECTIVE ASSISTANCE OF COUNSEL
The standard governing a claim of ineffective assistance of counsel is well-known. A defendant must establish both elements of a two-prong test: that the performance of his attorney was "deficient" and that his defense was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984). This two-prong test has been expressly adopted by the New Jersey Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987).
We note initially that we disagree with the trial court's conclusion that defendant's petition for post-conviction relief is barred because he did not pursue the issue on direct appeal. Defendant could not have pursued this issue on direct appeal; he asserts that he was not aware that he faced commitment as a sexually violent predator until he completed his prison sentence.
In State v. Bellamy, 178 N.J. 127, 138 (2003), the Supreme Court held that "fundamental fairness" requires that a trial court inform a defendant at the time he enters a plea of guilty that he may face commitment as a sexually violent predator for a period longer than the original sentence.
[W]hen the consequence of a plea may be so severe that a defendant may be confined for the remainder of his or her life, fundamental fairness demands that the trial court inform defendant of that possible consequence. The failure of either the court or defense counsel to inform defendant that a possible consequence of a plea to a predicate offense... is future confinement for an indefinite period deprives that defendant of information needed to make a knowing and voluntary plea. [Id. at 139.]
The trial court concluded that defendant had not established a prima facie case of ineffective assistance of counsel based upon the plea transcript. From our review of that transcript, we are unable to agree.
The prosecutor outlined the State's understanding of the terms of the plea bargain: defendant would plead guilty to one count of child endangerment, the other charges would be dismissed, the State would not seek a discretionary extended term under N.J.S.A. 2C:44-3a, it would recommend a sentence of three years flat, subject to an evaluation at Avenel, DNA testing, registration under Megan's Law, N.J.S.A. 2C:7-1 to -23, and community supervision for life. The trial court responded that it had indicated that if the Avenel evaluation revealed that defendant was not eligible for treatment at that facility, it would impose a probationary sentence, conditioned on 364 days in custody.
The trial court then asked defendant if he had heard the terms of the plea bargain that had been recited and if that accorded with his ...