On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-10-3452.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2011
Before Judges A. A. Rodriguez and Ashrafi.
Defendant Douglas Minatee 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 1993 to first-degree aggravated sexual assault because the attorney did not inform him that his conviction could later be used to support his civil commitment pursuant to the New Jersey 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 was indicted in 1992 on charges of first-degree kidnapping, N.J.S.A. 2C:13-1b; first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; third-degree criminal restraint, N.J.S.A. 2C:13-2; and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The State alleged that defendant had forcibly brought into the basement of his residence a four-year-old child who was playing nearby and placed his penis into her mouth.
Defendant entered into a plea agreement with the State for a maximum sentence recommendation of twelve years imprisonment. In January 1993, he pleaded guilty to the charge of aggravated sexual assault. At his plea hearing, defendant admitted he had taken the child to a front hallway of his residence and put his penis into her mouth while he was under the influence of drugs and alcohol. He was sentenced on September 27, 1993, to ten years imprisonment, to be served at the Adult Diagnostic and Treatment Center for sex offenders. Defendant did not file a direct appeal from his conviction or sentence.
In October 1999, the State filed a complaint for the civil commitment of defendant pursuant to the SVPA, N.J.S.A. 30:4-27.24 to -27.38, which was enacted in 1998. The Law Division held a hearing and granted the State's application for defendant's temporary civil commitment.
In 2007, the court held hearings to consider the gradual release of defendant from civil commitment. It issued an order in May 2007 for defendant's conditional discharge. In September 2007, however, the State moved before the court to modify the discharge plan on the ground that defendant intended to reside with a relative who was a registered sex offender. As a result of the State's assertion that defendant had not been honest with the court regarding his intentions upon discharge, further hearings were held and defendant remained under the order of civil commitment.
In February 2009, defendant filed a PCR petition to vacate his 1993 conviction. He alleged that the defense attorney who had negotiated his plea agreement and sentence in 1993 had provided ineffective assistance, in violation of his rights under the Sixth Amendment of the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution, because counsel failed to advise defendant that his conviction could be used in a future civil commitment proceeding. Judge Sherry Hutchins-Henderson heard argument and denied the PCR petition by written opinion on March 12, 2010.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE WHETHER COUNSEL WAS INEFFECTIVE.
A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.
B. THE TIME BAR OF R. 3:22-4 CONCERNING THE OPPORTUNITY TO RAISE CERTAIN ISSUES PREVIOUSLY RAISED DOES ...