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State of New Jersey v. John Banda

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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