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State v. Smullen

Superior Court of New Jersey, Appellate Division

August 15, 2014

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
WILLIAM SMULLEN, Defendant-Appellant

Submitted October 17, 2013

Approved for Publication August 15, 2014.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-07-0411.

Robert A. Warmington, attorney for appellant.

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent ( James L. McConnell, Assistant Prosecutor, of counsel; Cameron MacLeod, on the brief).

Before Judges FUENTES, FASCIALE and HAAS.

OPINION

Page 318

[437 N.J.Super. 104] FUENTES, P.J.A.D.

On November 14, 2003, defendant William Smullen pled guilty pursuant to a negotiated plea agreement with the Somerset County Prosecutor's Office to two counts of second degree sexual assault, N.J.S.A. 2C:14-2(c)(4), based on having consensual sexual intercourse on two separate occasions with a fifteen-year-old girl. Defendant

Page 319

was twenty-three years old at the time and a lifelong resident of the State of New York. As a mandatory part of this plea agreement, defendant would also be placed on community supervision for life pursuant to N.J.S.A. 2C:43-6.4.

Because defendant travelled from New York to this state to engage in these sexual encounters, he was also charged by the United States Attorney's Office with the federal offense of " Coercion or enticement of a minor female," in violation of 18 U.S.C.A. § 2422. Under the plea agreement, the State agreed to recommend that the custodial part of the sentence imposed by the Superior Court should run concurrent with the sentence imposed by the United States District Court of New Jersey.

On April 23, 2004, the District Court sentenced defendant to serve a term of forty-six months in federal prison. On October 26, 2006, the Superior Court in Somerset County found sufficient grounds to sentence defendant within the third degree range and imposed a term of imprisonment of three years.[1] Consistent with [437 N.J.Super. 105] the plea agreement, the court ordered that this sentence run concurrent with the sentence imposed by the federal court. The court also placed defendant on community supervision for life, as provided for in N.J.S.A. 2C:43-6.4. Defendant did not file a direct appeal challenging any part of his conviction or sentence.

Despite some discrepancy in the record,[2] the post-conviction relief (PCR) court found defendant timely filed a petition seeking PCR pursuant to Rule 3:22-2(a), alleging a denial of his Sixth Amendment right to effective assistance of counsel. Defendant claims he was compelled to plead guilty without being given sufficient time to review with his attorney the information provided by the court concerning the requirements and ramifications of being placed on community supervision for life under N.J.S.A. 2C:43-6.4. The record of the plea hearing reflects the trial judge gave defendant a ten-page document,[3] allegedly summarizing the requirements of community supervision for life, and directed defense counsel to review the document with defendant over the court's one-hour lunch recess.

Defendant also claims he was denied effective representation of counsel because his attorney did not discuss with him the specific requirements under N.J.S.A. 2C:43-6.4 during plea negotiations, including whether, as a New York resident, he would be subject to different or additional restrictions upon completion of his custodial sentence. Defendant submitted a certification in which he attests that he only

Page 320

expected " to submit to the specific registration [437 N.J.Super. 106] guidelines of the particular version of 'Megan's Law[4]' in effect in the state where I would be residing upon my release (New York)." However, his attorney was totally unaware of the restrictions imposed by New York.

The PCR court denied defendant's petition without conducting an evidentiary hearing. The court held:

It would be overly onerous on both the defense attorney and the Court to be required to advise Petitioner[s] of the community supervision for life provisions applicable in other states on the chance that a Petitioner might choose to reside in that state and was permitted to ...

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