On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment Nos. 00-10-1322, 02-09-1187.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2011 -
Before Judges Payne, Reisner and Simonelli.
The opinion of the court was delivered by REISNER, J.A.D.
Defendant Raymond Maldon appeals from an August 3, 2009 order denying his petition for post-conviction relief (PCR). Because the petition involves emerging legal issues that should be decided on the basis of a complete factual record, and defendant presented a prima facie case of ineffective assistance of counsel, we remand this matter to the trial court for an evidentiary hearing.
I We begin our discussion of the facts by briefly reviewing defendant's criminal history. In 1993, defendant was convicted of kidnapping, N.J.S.A. 2C:13-1b, aggravated sexual assault, N.J.S.A. 2C:14-2a, and official misconduct, N.J.S.A. 2C:30-2a, and was sentenced to twenty years in prison. In that case, while dressed in his uniform as a ConRail police officer, defendant stopped a seventeen-year-old female driver, forced her into his unmarked police car, drove her to a deserted area and raped her.
After defendant was paroled, he was accused of committing additional sex-related crimes between January and March 2000. Specifically, he was accused of setting up a hidden video camera in the bathroom of the house he shared with his tenant, D.W., and surreptitiously obtaining pictures of D.W., her mother and her young son in various states of undress. Defendant was tried and convicted on two counts of third-degree wiretap offenses, N.J.S.A. 2A:156A-3a and N.J.S.A. 2A:156A-5a, and was sentenced on August 30, 2002 to five years in prison of which half was to be served without parole.
The incidents which are the subject of this appeal took place while defendant was either on parole or free on bail in connection with the previously-described offenses. In an indictment issued on October 26, 2000, defendant was accused of sexually assaulting D.W. during the night of March 18, 2000, while she was sleeping. Defendant was charged with second-degree sexual assault, N.J.S.A. 2C:14-2c, and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b. His trial on those charges ended in a mistrial on September 7, 2001. While free on bail and awaiting re-trial, defendant was accused of fourth-degree criminal sexual contact for allegedly committing a similar sexual assault on L.A.B. on September 28, 2001. On September 9, 2002, defendant agreed to plead guilty to two counts of fourth-degree criminal sexual contact on D.W. and L.A.B., in return for dismissal of all remaining charges and a recommendation for two concurrent sentences of eighteen months in prison. In his plea colloquy, he admitted touching the victims' "intimate areas" without their "full consent."
Prior to entering his guilty plea, defendant signed a plea form containing a series of questions aimed at defendants pleading guilty to offenses that could subject them to imprisonment at the Adult Diagnostic and Treatment Center. Fourth-degree sexual contact was not one of those offenses. However, question eight on this form specifically asked the following:
Do you understand that if you are confined at the Adult Diagnostic and Treatment Center or any other facility for commission of a sexually violent offense, you may upon completion of your term of confinement be involuntarily committed to another facility if the court finds, after a hearing, that you are a sexually violent predator in need of involuntary civil commitment?
Like all of the other questions on the form defendant signed, this question was marked "N/A," although under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, fourth-degree criminal sexual contact could constitute a predicate act for defendant's civil commitment. See N.J.S.A. 30:4-27.26(a) (defining "sexually violent offense" as including criminal sexual contact); N.J.S.A. 30:4-27.26(b); State v. Bellamy, 178 N.J. 127, 136 (2003). At defendant's plea hearing, he was advised that Megan's Law, N.J.S.A. 2C:7-1 to -23, did not apply to the offenses to which he was pleading guilty. There was no mention of civil commitment at the hearing.
Pursuant to the plea agreement, defendant was sentenced on November 1, 2002, to an aggregate eighteen-month prison term, to be served concurrent to the five-year sentence he was already serving for the illicit videotaping convictions.*fn1 Shortly before defendant's release from prison, almost six years later, the State successfully moved to have him civilly committed under the SVPA. In granting the petition for commitment on July 30, 2008, Judge Perretti considered expert opinions ...