NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2012
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 04-06-0348, 04-06-0349.
Joseph E. Krakora, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
Before Judges Nugent and Haas.
Following the denial of his second petition for post-conviction relief (PCR), defendant Joseph J. Damico filed a motion for reconsideration, which the PCR judge denied. Defendant now appeals from the order denying his motion for reconsideration. He claims he would not have pled guilty to two offenses involving attempts to kidnap and lure children had his attorney represented him effectively by telling him he might be subject to civil commitment after serving his prison term; and that his first PCR counsel was ineffective for not raising that issue. Having considered defendant's arguments in light of the record and controlling law, we conclude he is entitled to a hearing on his claims. Accordingly, we reverse the order that denied his PCR petition without a hearing and remand for a hearing.
According to the statements he made when he pled guilty, defendant twice tried to knock unconscious and abduct a young child. On October 10, 2003, defendant drove to a Wal-Mart and walked to the toy department, where he spotted a girl who appeared to be about five years old. Armed with a twelve-inch-long masonry chisel tucked in his waistband, defendant intended to knock the child out, drag her to his car, and take her home to raise as his sister. As he came within approximately four feet of the child, defendant said, "come here, come back." The child ran, and defendant ran from the store.
Approximately six months earlier, in April or May 2003, defendant had been in a supermarket for an hour when he spotted a girl who was approximately nine years old. Intending to knock the child out and abduct her, defendant walked toward her until he was approximately one foot away and threatened to knock her out with the chisel. The youngster began to cry and ran to her mother.
As a result of the incident in Wal-Mart, a grand jury charged defendant with first-degree attempted kidnapping, N.J.S.A. 2C:5-1 and 13-1 (first count), and five other offenses. In a second indictment, the grand jury charged defendant with attempted third-degree luring or enticing a child, N.J.S.A. 2C:5-1 and 13-6 (second count), and four other offenses, arising out of the incident that occurred in the supermarket; as well as six other offenses arising out of a separate incident when defendant allegedly tried to abduct from a department store the same child he had confronted in the supermarket.
Following the indictments, defendant agreed to plead guilty to second-degree attempted kidnapping on count one of the first indictment, and to third-degree attempted luring on count two of the second indictment. In exchange, the State agreed to dismiss all other charges in both indictments, recommend a maximum eight-year prison term on the first count of the first indictment, and recommend a concurrent five-year maximum prison term on the second count of the second indictment. Although the judge who accepted defendant's plea first questioned him to assure that he was knowingly and voluntarily entering into the plea agreement, the judge did not explain that defendant might be subject to civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to 27.38.
Defendant refused to appear for his sentencing on March 18, 2005. After announcing that defense counsel and a court officer had confirmed defendant refused to come to court, the sentencing judge announced his intention to proceed, and commented that perhaps defense counsel could communicate the sentence to defendant, unless counsel had "an application to the contrary." Defense counsel responded that he did not "mind communicating the sentence, which will be confirmed by the [judgment of conviction] when the [c]ourt prepares that[.]"
During argument, the prosecutor quoted a medical report expressing concerns about defendant's non-compliance with his treatment regimen, and his impaired reality testing, paranoid preoccupation, mood liability, and history of sexual abuse. The doctor who wrote the report felt "the risk is that he might engage in the type of behavior resulting in the present charges against him if he is not in a confined setting."
In response, the judge asked, "[g]iven [the] fact this comes under the community supervision for life, it does - - is this one of those cases where the defendant, there would be opportunity for evaluation when released to determine whether or not civil commitment is appropriate?" Replying to the court, the prosecutor twice stated, "I'm sure that's the case." The prosecutor then assured the court that she would "follow this, because I saw [defendant] in 1997, where I believe he got [pre-trial intervention], and now I have had . . . again in 2003." Thus, in defendant's absence, the court referred to the possibility of civilly committing defendant and the prosecutor confirmed not only that defendant's civil commitment was a possibility, but that she would ...