On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 97-09-2253.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2013 -
Before Judges Fisher and Alvarez.
In this appeal of the denial of his post-conviction relief (PCR) petition, defendant argues his trial counsel during the entry of guilty pleas in 1998 and 2008, as well as his appellate counsel in his direct appeal of the 2008 judgment of conviction, were ineffective. We find no merit in his arguments and affirm.
Our decision is informed by this matter's convoluted history. In 1997, defendant was indicted and charged with: third-degree theft, N.J.S.A. 2C:20-3; third-degree receiving stolen property, N.J.S.A. 2C:20-7; and second-degree eluding, N.J.S.A. 2C:29-2(b). On June 9, 1998, pursuant to a negotiated plea agreement containing the State's agreement to recommend a six-year prison term, defendant entered a guilty plea to third-degree theft and second-degree eluding. At the plea hearing, defendant acknowledged that, on August 22, 1997, in Hammonton, he took a Lincoln Town Car that he observed on the street while waiting for a bus. During his unauthorized use of this vehicle, he was pursued by a police vehicle, which he attempted to elude until finally apprehended. Sentencing was scheduled for August 21, 1998. Defendant did not appear for sentencing.
According to defendant, at some point in 1998, he was in the custody of California authorities who reached out to the State regarding the 1997 indictment. Defendant claims that the California authorities were told by the State's representatives that "it was not worth it to extradite a 'car thief' and that the charge was dismissed." He further claims that he remained in California for medical treatment for several years thereafter.
Defendant also asserted in his PCR petition that "[he] returned to Philadelphia," and that "[a]fter some period of time," a New Jersey warrant "appeared." The record on appeal reveals that defendant was arrested in Philadelphia and convicted in 2005 of an aggravated sexual assault for which he was sentenced to a twenty-three month prison term, followed by an eight-year probationary term. In 2008, defendant was extradited to New Jersey for further proceedings on the 1997 indictment.
Instead of simply sentencing defendant based on the prior plea agreement, the State offered an amended agreement, which differed in that the State sought only defendant's guilty plea to third-degree eluding and agreed to recommend a four-year instead of a six-year prison term. The presentence report revealed that among defendant's prior convictions, he had been convicted of sex offenses in California in 1984 and in Pennsylvania in 2005.
In pleading guilty to eluding in 2008, defendant was not advised by his trial attorney that he potentially faced civil commitment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, based on the out-of-state seX offenses. Defendant was sentenced, pursuant to the new plea agreement, to a four-year prison term and given credit for 273 days in incarceration.
Defendant filed an appeal, which was heard by an excessive sentence oral argument panel. On April 24, 2009, we affirmed the judgment of conviction with the exception that the judgment was amended to reflect an additional 167 days in jail credits.
Prior to defendant's release from prison, the State filed a petition for defendant's civil commitment pursuant to the SVPA. That petition was granted on May 10, 2010, and defendant was transferred to the Special Treatment Unit in Avenel.
On August 31, 2010, defendant filed his PCR petition, which was amended on November 8, 2010, following the appointment of counsel. On July 14, 2011, the PCR judge denied relief without conducting an evidentiary hearing.
Defendant appeals, arguing he established a prima facie claim for relief because he was denied the effective assistance of counsel during: (1) the 1998 plea negotiation proceedings; (2) the 2008 plea negotiations; and ...