May 31, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 02-08-1757 and 02-09-1887-B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2012
Before Judges Payne and Hayden.
Defendant, E.W., pled guilty on June 2, 2003 to Count 2 of Indictment 02-08-1757 charging second-degree sexual assault against his housemate, R.D., N.J.S.A. 2C:14-2c and to the single count of Indictment 02-09-1887-B, charging third-degree sexual penetration of K.W. by a diseased person, N.J.S.A. 2C:34-5b. Intercourse with K.W. had been consensual; however, she was not made aware that, at the time of the act at issue, defendant had been HIV positive for approximately ten years, and he was under treatment.
Following denial of defendant's motion to vacate his plea, based on allegations that he had not understood its terms or his sentencing exposure, both of which allegedly had been inadequately explained by trial counsel, on October 24, 2003, defendant was sentenced for the second-degree crime to six years in custody, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent five-year sentence for the third-degree crime. Prior to sentencing, defendant had been found ineligible for sentencing under the purview of the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10.
Defendant appealed, raising arguments that included:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO VACATE HIS GUILTY PLEAS BEFORE SENTENCING.
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL BECAUSE TRIAL COUNSEL FAILED
TO ADVISE DEFENDANT FULLY OF THE CONSEQUENCES AND MEANING OF THE PURPORTED PLEA AGREEMENTS, RESULTING IN THE ABSENCE OF KNOWING, INTELLIGENT, AND VOLUNTARY PLEAS. (Partially Raised Below).
DEFENDANT SUFFERED A BRADY VIOLATION AND VIOLATIONS OF THE RULES OF COURT REGARDING DISCOVERY FROM THE ALLEGED VICTIM, R.D. (Not Raised Below).
On an earlier appeal in 2006, we affirmed the convictions that we have set forth but reversed a conviction and sentence for contempt, entered by the judge as the result of derogatory and profane statements made in court by defendant at sentencing. Additionally we remanded the matter for resentencing in light of State v. Natale, 184 N.J. 458, 495 (2005). No further appeal was filed. On remand, the same sentences were imposed.
In February 2008, defendant filed a pro se petition for post-conviction relief (PCR). He was assigned counsel, and the matter was argued on July 2, 2010. Before the PCR judge, defendant raised the following arguments:
POINT I DEFENDANT-PETITIONER WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL (U.S. CONST., AMEND. VI, XIV; N.J. CONST., (1947), ART. I PAR. 10) BECAUSE DEFENSE COUNSEL FAILED TO DISCUSS POTENTIAL SEXUALLY VIOLENT PREDATOR ACT CONSEQUENCES OF THE GUILTY PLEA.
POINT II DEFENSE COUNSEL'S FAILURE TO ACCURATELY ADVISE, ADDRESS AND INFORM PETITIONER CONCERNING VARIOUS FACTUAL, LEGAL AND EVIDENTIAL ISSUES PRIOR TO [E.W.] ACCEPTING THE PLEA OFFER DENIED [E.W.] HIS RIGHT TO COMPETENT COUNSEL AND EFFECTIVE COUNSEL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
A. COUNSEL FAILED TO PROVIDE A COPY OF OR DISCUSS A LETTER SENT BY VICTIM, R.D., THAT INDICATES HER RELUCTANCE TO HAVE [E.W.] PUNISHED.
B. COUNSEL FAILED TO DISCUSS THE IMPLICATIONS OF PROBLEMS WITH THE RECORDING OF [E.W.'s] STATEMENT BY THE POLICE.
POINT III APPELLATE COUNSEL WAS INEFFECTIVE BY NOT RAISING ALL ISSUES.
Defendant's petition was denied, and this appeal followed.
On appeal, defendant raises the following arguments for our consideration:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO DETERMINE WHETHER BOTH TRIAL AND APPELLATE COUNSEL WERE 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 NOT APPLY TO DEFENDANT'S CASE.
C. PETITIONER'S TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO NOTIFY DEFENDANT THAT HE WOULD BE SUBJECT TO THE SEXUALLY VIOLENT PREDATOR'S ACT, UNDER N.J.S.A. 30:4-27.
D. DEFENDANT'S GUILTY PLEA WAS NOT KNOWING AND VOLUNTARY AND SHOULD BE VACATED SINCE HE WAS NOT ADVISED THAT HE WOULD BE SUBJECT TO THE SEXUALLY VIOLENT PREDATOR'S ACT.
E. APPELLATE COUNSEL WAS INEFFECTIVE. We affirm.
On appeal, appellate counsel summarized the arguments made to the PCR judge by stating in her brief as follows:
The thrust of defendant's petition for post conviction relief in the present case focused upon his contention that he was denied the effective assistance of legal representation at both the trial level and on appeal. In particular, he argues that his trial attorney was ineffective for failing to discuss the ramifications of the Sexually Violent Predators Act with him. Defendant also argues that trial counsel failed to discuss the plea offer with him, as well as his sentence exposure. Trial counsel also failed to show defendant the letter R.D. wrote and failed to challenge the admissibility of his taped statement that he provided to the police. Defendant further argued that appellate counsel was ineffective for failing to raise the above-stated issues on appeal. As a result, defendant argues that he received inadequate legal assistance.
Our review of our prior opinion in the matter satisfies us that defendant's claims that trial counsel failed to discuss the plea offer and sentencing exposure with him, and failed to show defendant a letter allegedly written by R.D. were considered at that time. In our 2006 opinion we found no merit in defendant's claim that his plea was not knowing and that counsel was ineffective in explaining the plea and defendant's sentencing exposure to him, and we discussed the letter allegedly written by victim R.D. Thus, defendant's claims as they concern those matters are barred by Rule 3:22-5 as expressly adjudicated.
We add only that we have reviewed the letter purportedly written by R.D., and have found that, although it expresses her reconciliation with defendant, it does not exculpate him from the crime to which he pled guilty, the existence of which was independently corroborated by medical evidence of injury to R.D. and by R.D.'s statements to her supervisor, the police, medical personnel and in support of a temporary restraining order.*fn1
Moreover, a review of the sentencing transcript of October 24, 2003 discloses that defendant attacked R.D. a second time, and as a result, he spent added time in jail. However, upon R.D.'s representation that she did not wish to proceed with charges on that crime, charges were dropped by the prosecutor. We have no evidence that would suggest whether the letter in the record, allegedly written by R.D., pertained to the first or second charges. In any case, the sentencing transcript discloses that the substance of some letter of retraction from R.D. was made known to defendant.
We therefore affirm the denial of PCR in connection with these claims.
Defendant also argues that counsel failed to challenge the admissibility of a tape-recorded confession that he gave to the police. In the brief submitted by counsel to the PCR judge, defense counsel stated, without evidentiary support that:
In the case at hand [E.W.], after denying a sexual assault for some time, gave an inculpatory statement to the Egg Harbor Township Police. However, the recording was made at the wrong speed and could not be deciphered without altering the playback speed of the tape.
Defendant then argues that, because a change in the tape's speed would alter "the inflection, tone and speed of speech," making it impossible for those characteristics to be accurately assessed by the jury, the tape would not be admissible. Thus, to introduce defendant's confession to the jury, the State would be required to offer the testimony of the officers who were present at the time that the confession was made - testimony that would be subject to a Hampton/Kociolek*fn2 charge. Defendant argues that this circumstance was not disclosed to him prior to the time that he accepted the State's plea offer and, because the information would have constituted a "key consideration" in determining whether to plead guilty, counsel was ineffective.
We decline to accept defendant's argument on this point, since defendant has failed to offer any proof that the confession was recorded incorrectly or that it would have been ruled inadmissible. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).
Even if we were to accept defendant's unsupported allegations as true, we find that they would not satisfy the two-pronged standard for demonstrating ineffective assistance of counsel, established by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) and adopted in New Jersey by State v. Fritz, 105 N.J. 42, 58 (1987). Pursuant to that standard, defendant must show: (1) that counsel's performance "fell below an objective standard of reasonableness," Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Because defendant does not deny that the recording of his confession could be made intelligible, if he were to deny making the statements that the police claimed, the tape could be introduced, subject to proper instruction, as impeachment. As a consequence, defendant's admission of his guilt in connection with the claims of R.D. would have come before the jury in its recorded for as well as through the interrogating officers' testimony. See N.J.R.E. 803(b)(1). We thus affirm the denial of PCR based on this claim, prejudice not having been demonstrated.
Defendant also argues that he was denied effective assistance of counsel because, at the time of his plea, he was not advised of the possibility of lifetime civil commitment pursuant to the New Jersey Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. Our review of the record in the matter establishes that defendant was informed, through a relevant question on the plea form executed by him, of the possibility of civil commitment; however, its potential duration was not set forth. The potential applicability of the Sexually Violent Predator Act was not discussed on the record at the time that defendant's plea was taken on June 2, 2003.
On December 11, 2003, the New Jersey Supreme Court issued its decision in State v. Bellamy, 178 N.J. 127. In that case, the court determined that, although civil commitment under the Sexually Violent Predator Act was neither a penal nor a direct consequence of a conviction, fundamental fairness required that the judge taking a plea to a predicate offense under the Act ensure that the defendant understood that, as the result of the plea, a possibility of future commitment for an indefinite period existed. Id. at 137-40.
Addressing the issue of the retroactivity of its ruling, the Court held:
The purpose of the rule announced herein is to ensure that a defendant eligible for commitment under the Act clearly understands the nature and the consequences of the plea. However, trial courts routinely have not informed defendants of the consequences because those consequences are not direct and penal consequences of the plea. While we do not know the exact number of defendants who pled guilty to a predicate offense without knowing the possible consequences under the Act and were later committed, we recognize that full retroactivity of this decision would have a disruptive effect on the administration of justice. The lack of data regarding the number and kinds of cases that would be affected by a rule of complete retroactivity and the impact that complete retroactivity would have on the administration of justice mandates that the new rule should apply only to cases pending direct review at the time of the rule's announcement. [Id. at 142-43.]
Although defendant had been sentenced on October 24, 2003, at the time that Bellamy was decided, he had not appealed, and thus was not in the pipeline for purposes of retroactivity. Indeed, defendant's appeal from Indictment 02-08-1757 (the R.D. matter) was filed on February 11, 2004 and the appeal from Indictment 02-09-1887 (the K.M. matter) was filed on April 8, 2005 pursuant to an order that permitted the filing nunc pro tunc.*fn3 The reason for the delay in filing the appeals is not specified.
Moreover, by letter dated September 29, 2009, the Atlantic County Prosecutor was advised that the Department of Corrections' professional staff had evaluated defendant and found him "NOT eligible for involuntary commitment to the Ann Klein Forensic Center OR the Special Treatment Unit." Although defendant was reincarcerated on a parole violation on July 14, 2010, and he remains in custody, we have not been informed of the nature of the acts resulting in the violation or that civil commitment is now contemplated.
Defendant's challenge to the validity of his plea based on counsel's failure to inform him of the possibility of lifetime civil commitment raises a substantial legal issue of whether, as the result of our order permitting the 2005 appeal to be filed nunc pro tunc, he should have been deemed in the pipeline for purposes of the applicability of Bellamy. The State has brought to our attention two unreported decisions in which panels of our court held that authorization to file an appeal nunc pro tunc placed defendants in the pipeline for purposes of the application of State v. Natale, supra. See State v. Cebula, No. A-1253-05 (App. Div. December 6, 2006), certif. denied, 195 N.J. 422 (2008), and State v. Edwards, No. A-0303-05 (App. Div. January 31, 2007), certif. denied, 193 N.J. 276 (2007).
However, as the State points out, the considerations relevant to a modification of sentence may differ from those that apply to vacating guilty pleas, especially so long after the pleas were entered. Further, those considerations may be affected by the creation of a fuller record as to the reasons for defendant's delay in seeking to appeal. In the circumstances presented, and in the absence of any evidence that defendant will be civilly committed as the result of the crimes that gave rise to his June 2, 2003 plea, we decline to offer an advisory opinion as to the applicability of Bellamy in this case. G.H. v. Twp. of Galloway, 199 N.J. 135, 401-02 (2009). We do not foreclose further consideration of this issue, should defendant be civilly committed at the conclusion of his present prison sentence.
Having found no reversible error as the result of the conduct of trial counsel, we reach the same determination with respect to defendant's appellate attorney.
Affirmed. Jurisdiction is not retained.