July 11, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BERNARD YOUNGKIN, A/K/A BERNARD YOUNGKIN, JR., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-04-1419.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 3, 2011
Before Judges Messano and Waugh.
Defendant Bernard Youngkin appeals the denial of his petition for post-conviction relief and for leave to withdraw his guilty plea to criminal restraint. We affirm.
We discern the following facts and procedural history from the record on appeal.
In September 2005, Youngkin's niece and her boyfriend reported to the police that shortly after they moved into Youngkin's one-bedroom apartment in August 2005, Youngkin tied the niece to a chair, duct taped her mouth, pulled off her clothing, and ordered the boyfriend to engage in oral sex with her while he watched. The boyfriend did so, claiming that he was afraid he would be kicked out of the house if he refused. The boyfriend asserted that Youngkin rubbed his niece's breasts while he was engaging in oral sex, and that he also pinched her nose shut while her mouth was taped.*fn1
Youngkin was indicted on April 18, 2006. The indictment charged the following offenses: first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(5) (count one); third-degree criminal restraint, contrary to N.J.S.A. 2C:13-2(a) (count two); third-degree aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3(a) (count three); third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(7) (count four); fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b) (count five); fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b) (count six); and third-degree criminal coercion, contrary to N.J.S.A. 2C:13-5(a)(7) (count seven).
On September 5, 2006, Youngkin pled guilty to the second count of the indictment, which alleged criminal restraint. In exchange, the remaining counts were to be dismissed and the State agreed to recommend a five-year custodial sentence. The judge found Youngkin's plea knowing and voluntary. By way of factual basis, Youngkin admitted that he had tied his niece to a chair, duct taped her mouth, and thereby exposed her to serious injury.
The sexual aspect of Youngkin's conduct was not mentioned as part of the factual basis for the plea. In addition, the possibility of civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, was not discussed with Youngkin when the judge explained the consequences of the plea or by his attorney prior to the plea.
Youngkin was sentenced in accordance with the plea agreement in October 2006. In 2007, he filed a motion for reconsideration of the sentence, which was denied. Neither the sentence nor the denial of the motion for reconsideration was appealed.
Prior to Youngkin's release from prison, the State filed a petition seeking his civil commitment under the SVPA. An order for temporary commitment was entered on February 3, 2009. Youngkin filed a motion to preclude consideration of his conviction for criminal restraint in connection with the civil commitment. That motion was denied on April 8, 2009.*fn2
In May 2009, Youngkin filed a pro se petition for PCR, seeking to have the conviction set aside and to withdraw his guilty plea. PCR counsel subsequently filed a brief, contending that Youngkin's defense attorney was ineffective because he failed to advise Youngkin that the guilty plea might subject him to civil commitment under the SVPA.
Oral argument on the petition was held on March 12, 2010, before Judge Louise Donaldson, the judge who had taken the plea. She determined that, because Youngkin had not been pleading guilty to a predicate sexual offense listed in N.J.S.A. 30:4-27.26(a), the defense attorney was not ineffective for failing to warn him that the State might seek civil commitment pursuant to N.J.S.A. 30:4-27.26(b). That provision permits the State to premise civil commitment on non-predicate offenses under certain circumstances. The judge relied on State v. Bellamy, 178 N.J. 127 (2003) in reaching her conclusion.
The judge also found that Youngkin had not satisfied the factors set forth in State v. Slater, 198 N.J. 145 (2009) for the withdrawal of a guilty plea following sentencing. Consequently, she dismissed the petition. The implementing order was filed the same day.
This appeal followed.
On appeal, Youngkin raises the following issues:
POINT I: COUNSEL'S FAILURE TO PROPERLY INVESTIGATE THE FACTS AND LAW OF THIS CASE AS THEY APPLIED TO CIVIL COMMITMENT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL ENTITLING DEFENDANT TO POST CONVICTION RELIEF.
POINT II: DEFENDANT IS ENTITLED TO WITHDRAW HIS PLEA BECAUSE IT WAS NOT MADE VOLUNTARILY OR KNOWINGLY.
POINT III: DEFENDANT HAS PRESENTED PRIMA FACIE EVIDENCE REQUIRING HE BE GRANTED AN EVIDENTIARY HEARING ON THE MATTER. "Post-conviction relief is New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). Under Rule 3:22-2, there are four grounds for PCR:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law . . . .
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.
"A petitioner must establish the right to such relief by a preponderance of the credible evidence." Preciose, supra, 129 N.J. at 459. To sustain that burden, specific facts which "provide the court with an adequate basis on which to rest its decision" must be articulated. State v. Mitchell, 126 N.J. 565, 579 (1992).
Claims of ineffective assistance of counsel are well suited for post-conviction review, and petitioners are rarely barred from raising such claims in petitions for PCR. R. 3:22-4(a); Preciose, supra, 129 N.J. at 459-60. Merely raising such a claim does not, however, entitle a defendant to an evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Rather, the decision to hold an evidentiary hearing on a defendant's ineffective assistance of counsel claim is within the trial court's discretion. Ibid.
Trial courts should grant evidentiary hearings and make a determination on the merits of a defendant's claim only if the defendant has presented a prima facie claim of ineffective assistance. Preciose, supra, 129 N.J. at 462-64. In determining whether a prima facie claim has been established, the facts should be viewed in the light most favorable to a defendant. Id. at 462-63.
To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Under the first prong of the Strickland test, a defendant must show that defense counsel's performance was deficient. Ibid. Under the second prong, a defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The two-part test set forth in Strickland was adopted by this State in State v. Fritz, 105 N.J. 42, 58 (1987).
In demonstrating that counsel's performance was deficient under the first prong of Strickland, defendant must overcome "'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Further, because prejudice is not presumed, id. at 52, a defendant must demonstrate "how specific errors of counsel undermined the reliability" of the proceeding. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 2d 657, 668 n.26 (1984).
A defendant must establish a prima facie claim of ineffective assistance of counsel in order to obtain an evidentiary hearing. Preciose, supra, 129 N.J. at 462. We are satisfied that no evidentiary hearing was required in this case because, for the reasons explained below, we have concluded that Youngkin failed to present a prima facie case of ineffective assistance of counsel.
With that background, we turn to the issue of whether defense counsel was constitutionally ineffective because he did not advise Youngkin that SVPA civil commitment could be sought on the basis of a non-predicate offense.
In Bellamy, supra, 178 N.J. at 139, a case also involving a PCR petition filed after the defendant faced SVPA civil commitment, the Supreme Court held:
When 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. [(Emphasis added).]
Unlike the defendant in Bellamy, Youngkin did not plead guilty to one of the "predicate offenses" listed in N.J.S.A. 30:4-27.26(a). Indeed, sexual misconduct is not an element of criminal restraint.
The State sought Youngkin's civil commitment under N.J.S.A. 30:4-27.26(b), which allows commitment based on "any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense." Youngkin has cited no case requiring either the court or defense counsel to notify a defendant entering a guilty plea to a non-predicate offense that there may be SVPA consequences in the future. We have found no such case.
We note that, at the time of Youngkin's plea and sentencing, no reported case had upheld a civil commitment based upon a non-predicate offense. The first such cases were decided in 2007. In re Civil Commitment of J.M.B., 395 N.J. Super. 69 (App. Div. 2007), aff'd, 197 N.J. 563, cert. denied, ___ U.S. ___, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009); In re Civil Commitment of J.P., 393 N.J. Super. 7 (App. Div. 2007).
Given the state of the law and the non-sexual nature of the offense to which Youngkin pled guilty, we concur with Judge Donaldson's conclusion that Youngkin failed to demonstrate a prima facie case under the first prong of Strickland. We see no basis in fact or law to conclude that his defense attorney's performance was deficient.
We also conclude that Youngkin failed to establish a prima facie case under the second prong of Strickland. Had he been informed that the State would be able to seek civil commitment under N.J.S.A. 30:4-27.26(b), Youngkin would have been faced with the choice of accepting the plea or going to trial on the entire indictment, which included several counts charging predicate offenses under N.J.S.A. 30:4-27.26(a). In addition to more clearly exposing himself to civil commitment, those charges would have exposed Youngkin to considerably more prison time than had been offered under the plea agreement. Youngkin would also have had to consider the effect on a jury of his admission that he generally engaged in the conduct alleged, and whether the jury would have credited the assertion in his statement that his niece and her boyfriend were willing participants. For those reasons, we are not persuaded that Youngkin would have chosen not to enter the plea. Consequently, he has not demonstrated that there was "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Having found that Youngkin's attorney was not constitutionally ineffective, we also conclude that the judge's decision to deny Youngkin's application to withdraw the plea was not an abuse of discretion. Rule 3:21-1 governs motions to withdraw guilty pleas. Generally, the motion must be made before sentencing. R. 3:21-1. If filed prior to sentencing, the motion is "governed by the 'interest of justice' standard in Rule 3:9-3(e)." Slater, supra, 198 N.J. at 158. Post-sentencing motions are governed by the more stringent standard, which is "to correct a manifest injustice." R. 3:21-1; see Slater, supra, 198 N.J. at 158. The burden rests on a defendant to establish why the motion to withdraw his or her guilty plea should be granted. State v. Luckey, 366 N.J. Super. 79, 86 (App. Div. 2004). Moreover, "the trial court has considerable discretion in entertaining such a motion, and our review must recognize the discretion to which the trial court's decision is due." Id. at 87.
Having reviewed Youngkin's arguments with respect to withdrawing the plea, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2). We affirm essentially for the reasons stated in Judge Donaldson's oral decision.