June 27, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GILES HARRIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 87-07-0867.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2012
Before Judges Cuff and Lihotz.
Defendant Giles Harris appeals from the denial of his post-conviction relief (PCR) petition, seeking to set aside his guilty plea. We affirm.
On September 18, 1988, defendant pled guilty to two counts of aggravated sexual assault, N.J.S.A. 2C:14-2a(4). In accordance with his plea agreement, on January 17, 1989, defendant was sentenced to two concurrent eleven year sentences, requiring he serve four years prior to parole eligibility. The remaining thirteen counts in the indictment were dismissed. Defendant was paroled on March 3, 1993. While on parole, he was arrested on indictable drug offenses. Following his jury conviction, defendant was sentenced to a custodial term of five years, subject to a three-year period of parole ineligibility to be served concurrent to the sentence imposed for his parole violation. When paroled in August 2001, defendant was informed he was subject to the registration provisions imposed by Megan's Law, N.J.S.A. 2C:7-1 to -23. See also N.J.S.A. 2C:43-6.4 (imposing community supervision for life for designated offenders).
Defendant filed a pro se PCR petition, seeking to set aside his 1988 conviction, later supplemented by counsel's submission. Defendant maintained: (1) trial counsel was negligent in failing to fully investigate his case, locate and interview witnesses, and otherwise prepare his defense; (2) his plea was not made with a full understanding of the consequences; (3) imposition of Megan's Law was unconstitutional because his conduct pre-dated the statute; and (4) an evidentiary hearing was necessary to resolve these issues.
The PCR judge, in a written opinion, denied the request for an evidentiary hearing, concluding defendant's claims of ineffective assistance of counsel were time barred and otherwise lacked merit because counsel guided defendant based upon the existing law. Further, in applying the test articulated in State v. Slater, 198 N.J. 145, 157-58 (2009) (setting forth a four factor test for evaluating motions to withdraw guilty pleas), the judge upheld defendant's guilty plea, finding the plea was knowingly and voluntarily entered. However, despite the twenty year lapse since sentencing, the PCR judge concluded defendant's challenge to the imposition of Megan's Law raised reviewable sentencing issues. R. 3:21-10(b)(5) (stating a motion may be filed at any time to correct an illegal sentence).
In examining the applicability of Megan's Law to defendant's 1988 offenses, the PCR judge concluded the imposition of the notification provisions of N.J.S.A. 2C:7-2(b)(2) was a legal issue that did not affect the validity of the defendant's original plea agreement or require his conviction be vacated. Consequently, if the provisions were inapplicable, defendant's sentence would be modified to eliminate the registration requirements.
The PCR judge focused on defendant's argument that the retroactive imposition of Megan's Law's violated the ex post facto clause of the United States Constitution. See U.S. Const. art. I § 10. Relying on Doe v. Poritz, 142 N.J. 1, 16 (1995), the PCR judge rejected defendant's arguments, as the Supreme Court has concluded the registration provisions of Megan's Law are designed to serve remedial, and not as punitive, purposes, as are constitutional.
On appeal, appellant renews the arguments presented to the PCR court, stating:
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL ENTITLING HIM TO POST CONVICTION RELIEF.
DEFENDANT IS ENTITLED TO WITHDRAW HIS PLEA BECAUSE HE WAS NOT MADE AWARE OF THE POTENTIAL CONSEQUENCE OF COMMUNITY SUPERVISION FOR LIFE AND IT WAS MADE UNDER DURESS AND THEREFORE WAS NOT MADE KNOWINGLY OR INTELLIGENTLY.
THE RETROACTIVE ENFORCEMENT OF COMMUNITY SUPERVISION FOR LIFE TO DEFENDANT'S SENTENCE WAS AN EX POST FACTO APPLICATION OF LAW IN VIOLATION OF THE UNITED STATES CONSTITUTION.
REMAND FOR AN EVIDENTIARY HEARING ON POST CONVICTION RELIEF IS REQUIRED BECAUSE THE DEFENDANT HAS PUT FORTH PRIMA FACIE EVIDENCE ENTITLING HIM TO SUCH RELIEF.
We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 964, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. Following our review, we conclude defendant's arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2).
Without question, defendant's claims of trial counsel's ill preparedness are untimely submitted and barred by Rule 3:22-12(1). We also reject defendant's claims seeking to set aside his guilty plea, substantially for the reasons discussed by the trial judge in his written opinion.
Turning to the retroactive application of Megan's Law, the issue as presented has two parts: 1) whether the general registration requirements are punitive; and 2) whether the retroactive application of the community supervision for life provisions, set forth in N.J.S.A. 2C:43-6.4, are constitutional. The first question has been fully reviewed and answered by the Court in the negative. See Poritz, supra, 142 N.J. at 13 (holding registration and notification laws, such as Megan's Law, are not retributive). The second question is currently pending before the Court. See State v. Schubert, No. A-1110-09 (App. Div. Apr. 26, 2011), certif. granted, 208 N.J. 368 (2011) (reviewing whether community supervision for life, N.J.S.A. 2C:43-6.4, is punitive or remedial).
The ex post facto clause of the Constitution prohibits Congress and the States from enacting any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 22 (1981) (citations and internal quotation marks omitted). "This prohibition limits the powers of the states only with regard to the imposition of criminal punishment." In re Kaplan, 178 N.J. Super. 487, 493 (App. Div. 1981). "[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Weaver, supra, 450 U.S. at 29, 101 S. Ct. at 964, 67 L. Ed. 2d at 23 (citations and footnotes omitted).
The registration requirements of N.J.S.A. 2C:7-3 and N.J.S.A. 2C:7-4b(1) and (2) mandate that those who committed an applicable offense shall appear at a local police station for fingerprinting, photographing, and providing information for a registration form that will include a physical description, the offense involved, home address, employment or school address, vehicle used, and license plate number. All information is centrally collected by the State Police and prosecutors.
In Poritz, supra, the Court reviewed the retroactive nature of the registration requirements, stating:
[T]he Constitution does not prevent society from attempting to protect itself from convicted sex offenders, no matter when convicted, so long as the means of protection are reasonably designed for that purpose and only for that purpose, and not designed to punish; that the community notification provided for in these laws, given its remedial purpose, rationality, and limited scope, further assured by our opinion and judicial review, is not constitutionally vulnerable because of its inevitable impact on offenders; that despite the possible severity of that impact, sex offenders' loss of anonymity is no constitutional bar to society's attempt at self-defense. The Registration and Notification Laws are not retributive laws, but laws designed to give people a chance to protect themselves and their children. They do not represent the slightest departure from our State's or our country's fundamental belief that criminals, convicted and punished, have paid their debt to society and are not to be punished further. They represent only the conclusion that society has the right to know of their presence not in order to punish them, but in order to protect itself. The laws represent a conclusion by the Legislature that those convicted sex offenders who have successfully, or apparently successfully, been integrated into their communities, adjusted their lives so as to appear no more threatening than anyone else in the neighborhood, are entitled not to be disturbed simply because of that prior offense and conviction; but a conclusion as well, that the characteristics of some of them, and the statistical information concerning them, make it clear that despite such integration, reoffense is a realistic risk, and knowledge of their presence a realistic protection against it. [142 N.J. at 12-13.]
Poritz puts to rest any challenge suggesting the registration requirements of Megan's Law are penal. Ibid. Unquestionably, the legislative aim was not punishment but a proper exercise of public protection. Consequently, defendant's suggestion Megan's Law registration cannot be imposed because it is ex post facto is without merit.
In this case, we need not address whether community supervision for life is punitive, barring its retroactive application as an unconstitutional ex post facto law, because defendant's judgment of conviction contains no such requirement.
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