July 12, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DASHAWN MITCHELL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 04-03-0214 and 04-04-0491.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 1, 2011
Before Judges Graves and Messano.
Defendant Dashawn Mitchell appeals from an order dated October 13, 2009, denying his petition for post-conviction relief. We affirm.
Pursuant to a negotiated agreement encompassing two separate indictments, defendant pled guilty to the following charges: two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c), and one count of third-degree terroristic threats, N.J.S.A. 2C:12-3(b). In exchange, the State agreed to dismiss other charges and to recommend a nine-year prison term, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
During the plea hearing on February 16, 2005, defendant confirmed that he discussed the questions and answers on the plea forms with his attorney and "the answers she filled out" were "accurate and truthful." Because defendant was pleading guilty to second-degree sexual assault charges, question number eight on a form entitled "Additional Questions for Certain Sexual Offenses Committed on or After December 1, 1998" asked whether defendant understood that upon completion of his term of confinement he could "be involuntarily committed to another facility if the court [found] after a hearing, that [he was] a sexually violent predator in need of involuntary civil commitment." The possible answers were "Yes" and "No," and "Yes" was circled on the form.
In addition, after defendant was sworn, the court had the following colloquy with him:
Q. All right. Mr. Mitchell, there's a law called the New Jersey Violent Sexual Predators Act. Under that law, if the New Jersey Attorney General's Office thinks that you fall under the requirements of that law and that you are a violent sexual predator, do you understand that the Attorney General can make an application to a court, to a judge, and ask the judge to have you civilly committed for the rest of your life?
Do you understand that?
Q. Knowing that and knowing all of the other things we have talked about so far, do you still want to plead guilty?
Q. . . . The last thing I need to review with you is when you get out of prison, you are going to register under Megan's Law. As I told you, every time that you don't comply with Megan's Law . . . you are subjecting yourself to a fourth degree offense which means that you could get an 18 month prison term.
Do you understand that?
Q. You are also going to be placed on community supervision for life, which is a very strict form of probation. Under community supervision for life, the person who is assigned to keep an eye on you, be it a probation officer or a parole officer, that person will have the ability to tell you where you can live, who you can live with, where you can work and the type of work you can have.
That person will also have the final say on whether or not you're allowed to travel or leave the State of New Jersey. That person, the probation officer, can make spot checks, random checks at your home or wherever you live, to see what kind of things you have in your house, what kind of materials that you have.
A person could also check your urine to see if you have drugs or alcohol in your system. It is a very strict form of probation. You could be on community supervision for the rest of your life. There's times when it can be terminated after 15 years, but you could theoretically be on it for the rest of your life.
Do you understand that?
On April 6, 2006, the trial court sentenced defendant to a six-year term of incarceration, subject to NERA. The court also ordered defendant to register as a sex offender, N.J.S.A. 2C:7- 2, and he was sentenced to community supervision for life (CSL), N.J.S.A. 2C:43-6.4.*fn1 Concurrent sentences were imposed on the other charges.
Defendant did not file a direct appeal. However, the present PCR petition was filed on January 15, 2009, and an amended petition was subsequently filed by appointed counsel. In a supporting certification dated July 22, 2009, defendant stated:
I pled guilty to the charge of sexual assault and I was never advised by trial pcounsel or the trial court that I was subject to civil commitment at the conclusion of my sentence. My plea was not voluntary since this collateral effect on my sentence was never explained to me by trial counsel or set forth by the court.
In view of the additional punishment of civil commitment, I would never have pled guilty and would have gone to trial. The fact that the punishment via civil commitment may constitute a life sentence is a manifest injustice.
During an evidentiary hearing on September 15, 2009, defendant testified he did not recall any discussions regarding civil commitment. When asked if he understood that he "could be civilly committed for the rest of [his] life," defendant answered, "No, I did not."
Following the hearing, the judge stated his reasons for denying defendant's petition, and he made additional findings in a written decision on October 13, 2009. On appeal, defendant asserts that the trial court's order denying his petition should be reversed because his attorney "failed to warn him that by pleading guilty, he could be subject to an indefinite civil commitment under the [Sexually Violent Predator Act]."
The judge's findings and conclusions on September 15, 2009, included the following:
This plea was well-negotiated by defense counsel. It was something that the defendant participated in. He was satisfied with it. He had plenty of time to think about it. During the procedure he was asked questions that were open-ended. He answered some questions yes. He answered some no, appropriately, I might add. Everything was explained to him both in writing and verbally. He answered appropriately and at the end of the form he was asked, do you have any questions? No. During the procedure he said no.
And at this point, I think what happened here is that Mr. Mitchell understood that he could be civilly committed for life, at least that's what he said under oath. Probably didn't think it would happen, but low and behold it did. And now he's claiming that he didn't understand. Actually, he's not even really saying that, what he's saying [is] that he doesn't remember much about it. I mean, the defendant's testimony, I'm not sure if he means he doesn't remember what happened one way or the other or, I mean, he certainly didn't say that things weren't explained to him and even if he were to say that now, he's got a lot of reasons to say that now that he has been civilly committed.
The record fully supports Judge Reddin's conclusion that defendant was aware that he was subject to civil commitment when he entered his guilty pleas. His pleas were therefore "knowing and voluntary," State v. Bellamy, 178 N.J. 127, 139 (2003), and defendant has failed to establish that his attorney's performance was deficient, Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Affirmed.