May 26, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CURTIS ALEXANDER, A/K/A MALIK TERROD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-02-0676.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 3, 2011
Before Judges Parrillo and Skillman.
Defendant, Curtis Alexander, a/k/a Malik Terrod, appeals from an order of the Law Division denying his petition for post- conviction relief (PCR). We affirm.
Defendant pled guilty to three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, upon three separate females, one of whom was a minor; three counts of related second-degree weapons offenses, N.J.S.A. 2C:39-4a; and one count of third-degree child endangerment, N.J.S.A. 2C:24-4.
In return, the State agreed to dismiss the remaining twenty- eight counts of the indictment and to recommend a sentence that would not exceed twenty years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; the Graves Act, N.J.S.A. 2C:43- 6c; and permanent supervision for life under Megan's Law, N.J.S.A. 2C:7-1 to -23. During the plea colloquy, defendant provided a factual basis for the charges to which he was pleading guilty. Although he insisted that he used an imitation firearm, defendant admitted threatening to use physical force against all three of his victims by pointing the gun in their faces while ordering them to remove their clothes. Defendant also acknowledged that NERA was applicable to his crimes and that he faced the possibility of civil commitment under the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38, as a result his plea.
Defendant was sentenced in accordance with the plea agreement to an aggregate twenty-year term of imprisonment, subject to the eighty-five percent period of parole ineligibility mandated by NERA. We heard defendant's direct appeal on an excess sentence calendar, Rule 2:9-11, and affirmed the judgment, but remanded for a determination of the applicability of the version of NERA in effect at the time of the subject offenses. On remand, the trial court held that NERA applied, finding defendant used the so-called imitation gun to force his victims to have sex. The court thus entered an amended judgment of conviction reimposing the concurrent twenty- year terms on the aggravated sexual assault convictions, but reducing the sentence imposed on the three weapons counts to reflect defendant's purported use of an imitation handgun. On appeal on our excess sentence calendar, we affirmed the judgment of conviction, finding NERA applied.
Defendant filed a timely PCR petition in which he again raised the NERA issue, this time couched in a claim of ineffective assistance of counsel. Specifically, defendant argued, among other things, that trial counsel failed to explain that the application of NERA was a jury question and failed to object to the State's substitution of the predicate NERA factor (i.e., threatened use of physical force during a sexual assault) after defendant's conviction. The PCR judge denied the petition, reasoning in part:
[Defendant] filed his appeal. He brought up the issue of N.E.R.A., the applicability of N.E.R.A. The Court made a decision on that to remand it. We went through another hearing and I determined that the inoperability of the gun wasn't dispositive, that he had acknowledged that he used this object to place the victims in fear, and that was sufficient. And the Appellate Division affirmed me on that. So, a lot of the N.E.R.A. arguments that he raises and you raise on his behalf, I think, have been resolved in the appeal process.. . . .
. . . This is his Certification, paragraph four. "Before I pled guilty, my attorney never told me that I could have the question of whether N.E.R.A. applies to first degree conviction submitted to the jury for a determination beyond a reasonable doubt."
Then he says, "The State originally advanced the N.E.R.A. predicate factor as being use of a deadly weapon and then changed it", which has nothing to do with the issue of being advised.
It's interesting. [Defendant] raises this issue several years after his sentencing. He never points to being misled by the attorney, but now says, "Well, I wasn't told that the jury could decide that." If you're pleading guilty to an offense, you're waiving your right to a jury and I don't see how he says he's guilty of these offenses how . . ., even if he wasn't told, not knowing would change the ultimate outcome . . . .
. . . I don't believe there's a basis from what's . . . presented in front of me to hold a hearing. And I don't think that even if a hearing were held and [defense counsel] were to come in and say, "Well, you know, Judge, I didn't tell him that a jury could decide that", that that would be ineffective assistance to . . . meet all prongs of STRICKLAND*fn1 and . . . the case that follow it for me to vacate this. So, I'm denying the Petition.
On appeal from that denial, defendant raises the following issues:
THIS MATTER MUST BE REMANDED FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVENESS OF TRIAL COUNSEL.
A. Trial Counsel Failed To Fully Advise Defendant Of The Penal Consequences Of His Pleas To The Aggravated Sexual Assaults; Specifically, That NERA Required That A Jury Determine, Beyond A Reasonable Doubt, That He Committed A Violent Crime Within The Meaning Of NERA Before A Sentencing Court Could Impose The Statute's Mandatory Minimum Sentencing Structure.
B. Trial Counsel Allowed Defendant To Plead Guilty To A Prohibited NERA Predicate That He Wielded An Imitation Firearm During The Aggravated Sexual Assaults.
We have considered these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, the use of a deadly weapon was not a necessary predicate for NERA's application and the threat to immediately use force was otherwise implicit in defendant's factual basis. Moreover, in accepting the plea offer, defendant knowingly and voluntarily agreed to waive the right to have a jury determine the issue of his guilt. Therefore, defendant's allegation that he would not have pled guilty had counsel advised him of his right to have the jury determine NERA's application is simply implausible, unsupported by anything other than defendant's base assertion and grossly insufficient to warrant an evidentiary hearing on the ineffective assistance of counsel claim.