On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-0530.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2012
Before Judges Harris and Hoffman.
This matter returns following a remand*fn1 for a plenary hearing on defendant Carlton Green's petition for post-conviction relief. Green now appeals from the July 11, 2011 decision*fn2 of the Law Division again denying the claim that he received ineffective assistance of counsel at the time he pled guilty. Because of our abiding concern about affirmative misinformation from counsel to a pleading client that undercuts a knowing and voluntary plea, Green is entitled to the remedy mandated in State v. Bellamy, 178 N.J. 127 (2003). We reverse.
Green entered a guilty plea to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and in August 2005 was sentenced to three years incarceration, to be served at the Adult Diagnostic and Treatment Center (ADTC) at Avenel. Following the completion of that sentence, Green was civilly committed as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. In July 2007, Green filed the present application for post-conviction relief contending that plea counsel was ineffective for not advising him that he faced the possibility of civil commitment for life.
After the Law Division denied that application, Green appealed and we remanded for a plenary hearing. Based upon the limited record provided to us at that time, we concluded that the following question-and-response elicited at the plea allocution was insufficient to satisfy the mandate of Bellamy:
THE COURT: But if you were committed to the Adult Diagnostic and Treatment Center, then you might very well be kept there longer than the period that you had first become eligible for parole and even for the entirety of the sentence. And after the sentence there might -- you do run the risk that you would be committed civilly for additional time, indefinite time; do you understand that?
THE DEFENDANT: Yes, sir. [Emphasis added.]
That last question and response is the only indication in the record before us of any consideration of the possibility that defendant faced the potential for further confinement as a sexually violent predator. It is, moreover, at least facially in conflict with the prosecutor's earlier representation that the State would not be seeking an extended term of confinement. [Green, supra, slip op. 6.]
On the other hand, we "recognized that it is entirely possible that [Green] did have conversations with his attorney that involved the possibility of such a civil commitment. If that occurred, [Green] would, of course, be unable to establish that he received ineffective assistance from his trial attorney." Ibid. Also, we did not have "the papers [Green] filled out in conjunction with pleading guilty . . . and thus we [were] unable to determine whether they support or undermine [Green's] claim." Ibid.
On remand, the plea forms utilized by Green in 2005 were produced. Green and his plea counsel testified. Plea counsel recognized that in 2005, his obligation to Green was "[t]o let him know that following a . . . regular sentence or a sentence in Avenel, that he . . . could be civilly committed after that, after [that] sentence." Moreover, Green was entitled to know that "[he] could be civilly committed for life." It was conceded by plea counsel that there were mandatory questionnaires -- the plea forms -- that had to be read, answered, and ...