On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 98-12-1644, 99-03-0336, and 99-04-0374.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 7, 2011
Before Judges Sabatino and Alvarez.
Defendant Hakim Evans appeals the April 20, 2009 denial of his application for post-conviction relief (PCR) without a hearing. For the reasons that follow, we affirm.
On August 4, 1999, pursuant to an agreement with the State, defendant entered guilty pleas to two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a), and two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), contained in Indictment No. 98-12-1644; the balance of the charges were dismissed. Those offenses occurred August 5, 1998. On a second indictment, No. 99-03-0336, defendant entered a guilty plea to third-degree theft from a person, N.J.S.A. 2C:20-2b(2)(d), amended from a second-degree robbery charge. This offense occurred May 25, 1998. On a third indictment, No. 99-04-0374, defendant entered guilty pleas to amended charges of third-degree criminal restraint, N.J.S.A. 2C:13-2, and third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a. Those offenses took place on September 6, 1998. Defendant was sentenced to an aggregate term of twelve years, subject to the requirements of Megan's Law, N.J.S.A. 2C:7-1 to -21, Parole Supervision for Life, N.J.S.A. 2C:43-6.4, and the eighty-five percent parole disqualifier found in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
When defendant entered his guilty pleas, the Sexually Violent Predator Act (SVPA) had not been enacted. See N.J.S.A. 30:4-27.24 to -27.38. By the time defendant was sentenced on April 3, 2000, the SVPA had been adopted, but its provisions regarding the possibility of civil commitment were not mentioned during the proceeding. In a supplement to defendant's plea form, however, titled "Additional Questions for Certain Sexual Offenses," paragraph six, defendant was asked the following:
Do you understand that if you are incarcerated as a repetitive and compulsive sex offender you may be subject to involuntary commitment following the expiration of your sentence?
Defendant responded in the affirmative.
Defendant's appeal was assigned to an excessive oral argument calendar. See R. 2:9-11.
On January 30, 2008, defendant filed a pro se petition for PCR, amended on July 9, 2008. Oral argument was first conducted on December 4, 2008. The court took the matter under advisement, planning to render a decision in writing. Shortly thereafter, on January 8, 2009, hours after defendant's release from prison on parole, he was returned to custody because SVPA civil commitment proceedings had been filed. Counsel therefore submitted a supplemental brief on the issue of commitment and additional argument was heard on March 12, 2009. On April 15, 2009, the court issued a written decision denying the application.
The PCR judge concluded Rule 3:22-12(a)'s five-year time bar prevented consideration of defendant's petition as his only explanation for failing to timely file was that he did not learn the PCR process existed until 2007. The judge found lack of knowledge regarding PCR was not the equivalent of excusable neglect, and further opined that granting the application eight years*fn1 after the fact would result in extreme prejudice to the State.
Petitioner's concurrent request for leave to withdraw his guilty plea was also denied. The PCR judge determined the plea withstood scrutiny pursuant to the four-part test enunciated in State v. Slater, 198 N.J. 145 (2009). "[A]t every turn" defendant indicated he wanted to plead guilty, stated he was not being forced or coerced into doing so, and responded to the plea judge's thorough examination. Defendant established an adequate factual basis on all counts and stated he was satisfied with his attorney.
On the Indictment No. 98-12-1644 offenses, the PCR judge disagreed that co-defendant Terence M. Kinchen's factual basis for entry of his guilty plea exculpated defendant. Furthermore, the State's failure to provide defendant Kinchen's plea testimony was not a Brady*fn2 violation because both defendant and the State had equal access to it.
Lastly, the court considered defendant's contention that, since he was not advised of the SVPA consequences at any stage of the proceedings, he was entitled to vacate his plea under State v. Bellamy, 178 N.J. 127 (2003). The judge found this argument was time-barred by Rule 3:22-12(a) and further barred by Rule 3:22-4(a), which ...