August 22, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ROYAL WALTERS, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 18, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 98—06-1190.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Parrillo and Messano.
Defendant Royal Walters appeals from the April 12, 2011 denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. The procedural history involved requires some explication.
Defendant was charged in Bergen County Indictment No. S-1190-98 with third-degree theft, N.J.S.A. 2C:20-7. On December 14, 1998, he entered a guilty plea pursuant to a plea agreement by which the State agreed to recommend a five-year term of imprisonment with a two-year period of parole ineligibility. Defendant was sentenced to a period of four years' imprisonment without any parole disqualifier on February 26, 2000.
His appeal was listed on the Excessive Sentence Oral Argument calendar, and, on February 5, 2002, we vacated the guilty plea, finding defendant's plea lacked a sufficient factual basis, and remanded the matter for further proceedings. See State v. Royal Walters, No. A-2023-00 (App. Div. Feb. 11, 2002).
On May 3, 2002, defendant was civilly committed to the Special Treatment Unit (STU) for sexual offenders pursuant to the Sexual Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, based upon a prior conviction for "Sexual Assault, " for which he was sentenced in 1989. On May 20, 2002, defendant again entered a guilty plea to the indictment, the State agreeing to recommend a sentence of time served. Defendant was sentenced in accordance with the plea agreement on the same day.
On September 24, 2002, defendant filed a pro se petition for PCR. In particular, defendant alleged that his commitment to the STU "violat[ed] . . . [his] plea agreement." He cited various constitutional grounds in support of the requested relief.
The Office of the Public Defender was assigned to represent defendant. However, on September 14, 2004, the Assistant Deputy Public Defender submitted a letter withdrawing the petition. She noted that defendant "ha[d] not maintained contact with [her] office." The Public Defender requested the petition be denied without prejudice "should [defendant] provide us with different and/or additional information in the future." On September 16, 2004, the trial judge entered an order dismissing the petition without prejudice.
In November 2009, defendant filed another PCR petition. He alleged again that his commitment to the STU violated the terms of his plea agreement, and he was "misinformed of [a] material element" during negotiations, i.e., his possible commitment under the SVPA.
PCR counsel was again assigned and filed a comprehensive brief in support of defendant's petition. He asserted that defendant was "not advised" of the consequences of his plea, and prior PCR counsel provided ineffective assistance by requesting dismissal of the original petition.
A hearing was held on March 18, 2011, before a judge who was not the trial judge. In a comprehensive written opinion filed on April 12, the judge concluded that defendant entered his second guilty plea after the SVPA judge had ordered his commitment under the SVPA. She concluded that even if defendant demonstrated trial counsel provided ineffective assistance, defendant failed to demonstrate "the deficient performance actually prejudiced" him.
The judge further concluded that the petition was time-barred, since it was not filed within five years of defendant's May 20, 2002 conviction, and defendant had not demonstrated "excusable neglect." See R. 3:22-12(a)(1). Although she did not expressly address defendant's claim that PCR counsel provided ineffective assistance, the judge dismissed the petition.
Defendant now appeals and raises the following points for our consideration:
POINT I — THE PCR COURT MISAPPLIED ITS DISCRETION IN APPLYING R. 3:22-12 TO BAR POST-CONVICTION RELIEF BECAUSE DEFENDANT PRESENTED SUFFICIENT REASON FOR FAILING TO COMPLY WITH THE 5[-]YEAR FILING REQUIREMENT
POINT II — THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE DEFENDANT'S FOURTH AND FOURTEENTH AMENDMENT RIGHTS TO BE PROTECTED AGAINST AN EX POST FACTO LAW WERE VIOLATED
POINT III — THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE MATTER REMANDED FOR A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT MADE A PRIMA FACIE SHOWING OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND FIRST PCR COUNSEL UNDER THE STRICKLAND/FRITZ TEST
POINT IV — THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION
POINT V — DEFENDANT'S GUILTY PLEA WAS NOT KNOWING AND INTELLIGENT, AND SHOULD BE VACATED
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Rule 3:22-12(a)(1) provides in relevant part:
[N]o [PCR] petition shall be filed . . . more than 5 years after the date of entry . . . of the judgment of conviction that is being challenged unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect and that there is a reasonable probability that if the defendant's factual assertions were found to be true enforcement of the time bar would result in a fundamental injustice.
Defendant filed his first PCR petition within five years of the judgment of conviction. That petition was dismissed without prejudice. However, even if we were to toll the running of the limitations period while that first petition was pending, defendant failed to file this petition within five years of the order dismissing the first petition without prejudice. He has offered no reasonable excuse for the delay, and, thus, has failed to establish excusable neglect.
Moreover, defendant was committed under the SVPA before he entered his guilty plea a second time. Commitment under the SVPA was premised upon defendant's prior 1989 conviction for a sexually violent offense. We have been provided with no information regarding defendant's appeal from the order of commitment, if indeed one was filed. Therefore, to the extent his challenge is to the commitment, he could have asserted that claim on direct appeal from the SVPA commitment order. See R. 3:22-4 (barring assertion of any claim for PCR relief if the challenge could have been raised on direct appeal, but was not). In short, defendant's commitment -- the consequence of which he predicates the claim of ineffective assistance of trial counsel -- had nothing to do with his subsequent guilty plea that led to the judgment of conviction under collateral attack
Lastly to the extent defendant raises a constitutional challenge to the SVPA on ex post facto grounds the Court again has recently rejected such a claim See In re Civil Commitment of WXC 204 N.J. 179 183 (2010) cert denied U.S. 131 S.Ct. 1702 179 L.Ed.2d 635 (2011).
The PCR judge failed to address defendant's argument that he received ineffective assistance from initial PCR counsel based on the voluntary dismissal of the 2002 PCR petition That argument is reasserted before us
However -- it follows from the above reasoning that the dismissal -- although in our opinion entirely justified based on defendant's failure to maintain contact with counsel -- was inconsequential Defendant's commitment under the SVPA had nothing to do with his subsequent guilty plea