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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...