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State of New Jersey v. John Banda

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 5, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN BANDA, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 81-00-00649.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 31, 2011 -

Before Judges Sabatino and Ashrafi.

Defendant John Banda appeals from a March 12, 2010 order of the Law Division denying his petition for post-conviction relief (PCR). He claims his attorney provided ineffective assistance when defendant pleaded guilty in 1982 to kidnapping and aggravated assault charges because the attorney did not inform him that his conviction could later be used to support his civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm the Law Division's order denying the PCR petition.

Defendant's 1982 guilty plea followed his indictment on charges of first-degree kidnapping, N.J.S.A. 2C:13-1b, and second-degree aggravated assault, N.J.S.A. 2C:12-1b. The circumstances of defendant's offenses were described by the New Jersey Supreme Court in a prior appeal. In November 1981, defendant stopped his car alongside a sixteen-year-old boy walking on the road and asked for directions. As the boy leaned inside defendant's car to look at a map, defendant knocked him unconscious. Defendant then took the boy to his home, blindfolded and gagged him, tied his feet together and his hands behind his back, and also tied the boy's long hair to his feet by tape and a rope. After threatening not to release the boy unless he cooperated, defendant cut and ripped out the boy's hair. Later, he abandoned the boy in a wooded area.

These crimes occurred after two other incidents where defendant had assaulted boys. He had previously pleaded guilty to assaulting a ten-year-old boy in 1977, and he was on bail for an October 1981 assault of a fifteen-year-old boy when he committed the offenses resulting in his 1982 guilty plea and conviction.

On the 1982 charges, defendant was sentenced to fifteen years imprisonment in accordance with a plea agreement. Although the crimes were not charged as sexual offenses, defendant served part of the sentence at the Adult Diagnostic and Treatment Center for sex offenders in Avenel. While in treatment and apparently for purposes of a parole interview, defendant admitted that his behavioral pattern of incapacitating and tying boys and pulling out their hair was for the purpose of his sexual arousal.

By 1989, defendant had been released from prison. A twenty-year-old man reported to the police that he and defendant had engaged in bondage behavior and that defendant had tied his hair by a rope affixed to the ceiling in defendant's house and held him thus bound until the young man had fallen unconscious. According to the victim, defendant then cut off his hair after threatening to hang him again from the ceiling. Defendant pleaded guilty in 1991 to offenses related to that incident and was sentenced to prison.

After his release for the 1991 conviction, defendant was again charged, pleaded guilty, and was sentenced to prison for similar crimes in 1995, in 1997, and in 1999.

In 2004, before his release from the last of these sentences, the State successfully petitioned the court for the civil commitment of defendant under the SVPA. That legislation had been enacted in 1998 and took effect in August 1999. L. 1998, c. 71, § 18. Defendant's civil commitment was upheld against constitutional attack by our Supreme Court, and the United States Supreme Court denied his petition for certiorari.

In April 2009, defendant filed the PCR petition that is the subject of this appeal. He sought to set aside his 1982 conviction for kidnapping and aggravated assault of the sixteen-year-old boy, apparently as an alternative path to challenging and vacating his civil commitment. In the PCR petition, defendant alleged that the defense attorney who in 1982 negotiated his plea agreement and sentence had provided ineffective representation because he failed to warn defendant that his conviction could be used in a future civil commitment proceeding. The Law Division denied the PCR petition without holding an evidentiary hearing.

On appeal, defendant argues:

POINT I

WHEN TRIAL COUNSEL CONCURRED WITH THE PLEA COURT THAT THE CRIMES DEFENDANT PLED GUILTY TO WOULD NOT CAUSE HIM TO BE TREATED AS A SEX OFFENDER AND SUBJECT HIM TO CIVIL COMMITMENT, HE GAVE DEFENDANT INCORRECT LEGAL ADVICE, THUS DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT II

THE FAILURE OF TRIAL COUNSEL AND THE TRIAL COURT TO EXPLAIN THAT DEFENDANT COULD BE COMMITTED AS A SEX OFFENDER CAUSED DEFENDANT TO LACK KNOWLEDGE AND UNDERSTANDING OF THE PLEA AGREEMENT, RENDERING HIS PLEA DEFECTIVE, BECAUSE HE NEVER KNOWINGLY WAIVED HIS RIGHT TO HAVE A JURY DECIDE IF HE WAS GUILTY OF CRIMES THAT LED TO HIS COMMITMENT, DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL (PARTIALLY RAISED BELOW).

POINT III

THE PCR COURT ERRED WHEN IT FAILED TO GRANT DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING.

POINT IV

THE TIME BAR OF R. 3:22-12 SHOULD NOT BE APPLIED TO DEFENDANT'S PETITION FOR POST CONVICTION RELIEF.

We reject these arguments without extensive discussion. R. 2:11-3(e)(2).

We conclude in summary form that the PCR petition was properly denied without an evidentiary hearing because: (1) it was barred by the five-year limitation period of Rule 3:22-12, having been filed twenty-seven years after the judgment of conviction; (2) the defense attorney could not have been ineffective in failing to predict the enactment of the SVPA some seventeen years after defendant's guilty plea and the effect that legislation might have on his liberty; and (3) the Supreme Court has already held in State v. Bellamy, 178 N.J. 127, 143 (2003), that the ground for relief defendant raises is not retroactively applicable to convictions that were beyond direct appeal at the time of the Bellamy decision in 2003.

Under the limited retroactivity holding of Bellamy, a defendant would not be entitled to relief even if he had filed a timely PCR petition and even if his attorney had failed to advise him that he could be civilly committed at a time when the SVPA was in effect. Id. at 140. Consequently, an attorney's representation of a criminal defendant was not deficient on the ground that he did not advise the defendant he might be committed under the general civil commitment statutes in existence before enactment of the SVPA.

Defendant's PCR petition did not demonstrate a prima facie showing that his attorney provided ineffective assistance at the time of his guilty plea in 1982.

Affirmed.

20120105

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