STATE OF NEW JERSEY v. MIGUEL LORENZO

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1732-07T41732-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIGUEL LORENZO,

Defendant-Appellant.

___________________________

 

Submitted December 2, 2008 - Decided

Before Judges Parker and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment Nos. 88-11-1040 and 90-09-0954.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur J. Owens, Designated Counsel, on the brief).

Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Miguel Lorenzo appeals from the October 16, 2007 order of the trial court denying his petition for post-conviction relief (PCR). We affirm.

On April 9, 1991, defendant entered a plea of guilty under indictment 88-11-1040 to third-degree aggravated assault on a police officer, in violation of N.J.S.A. 2C:12-1(b)(5)(a). On June 3, 1991, defendant entered a plea of guilty under indictment 90-09-0954 to two counts of first-degree aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(5)(a). At that plea hearing, defendant acknowledged that, because he was pleading to sex offenses, he would be subject to evaluation for possible confinement at the Adult Diagnostic and Treatment Center (ADTC) at Avenel, pursuant to N.J.S.A. 2C:47-1 to -10. The sentence recommendation in his plea agreement was for a flat fifteen-year term if sentenced to New Jersey State Prison, or a seven-and-a-half-year term if confined at the ADTC.

Defendant was sentenced on November 11, 1991. He received a three-year term of imprisonment on the third-degree offense. As he was determined ineligible for confinement at the ADTC, he received two concurrent terms of fifteen years on the aggravated sexual assault charges, which ran concurrently with his three-year term.

Defendant filed an appeal pursuant to R. 2:9-11, and on November 17, 1992, we affirmed his sentence. State v. Lorenzo, No. A-2461-91 (App. Div. November 17, 1992). In or about July 2000, when defendant completed his penal sentence, the State moved to have him civilly committed pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.

On July 18, 2006, defendant filed a "Motion For Relief Under res-judicata and collateral estoppel[,]" under Indictment No. 90-09-0954. He argued that his civil commitment pursuant to the SVPA should have been estopped by the ADTC determination that he did not fit the criteria to be sentenced as a sex offender. He also contended that his civil commitment violated the Constitution's prohibition against ex post facto laws.

The court regarded defendant's motion as a PCR petition and assigned counsel. Almost one year later, defendant submitted a certification in support of his PCR petition, stating that he "was not advised by [his] attorney or by the Court that [he] would be subject to civil commitment at the end of [his] sentence." Claiming that he "would never have taken the State's plea offer as presented[,]" if he had "known [the] truth as to the . . . information that had been provided to [him]," defendant contended that his attorney "should have filed a motion to vacate any commitment in the future with regards to this plea, but she did not do so."

At a hearing on August 2, 2007, PCR counsel argued:

[A]t the time that he entered into the plea agreement and was sentenced, there was no act, the S.V.P. Act at the time. So clearly neither the Court nor his attorney could have advised him that this was coming down the pike per se.

However, he was in prison doing his sentence and long before the time he actually was up to be maxed out . . . [t]he Act came into effect. Nobody advised him at that point, him or anyone else in his position, . . . nobody came and said, you know, this Act is coming into effect and this is going to [a]ffect what happened to you. In other words, what may happen to you under the sentence you entered into before this Act came into effect.

Counsel argued that defendant was subject to a "clearly . . . retroactive application" of the SVPA. The PCR court pointed out that, at defendant's civil commitment hearing in 2000, the judge had "made the determination that he is a sexually violent predator[,]" and therefore was subject to commitment under the SVPA. The court stated, "That would be the place I would think where you'd make the argument."

The court noted that the SVPA was enacted in August 1998, and became effective on August 12, 1999, eight years after defendant entered his guilty plea to the sexual offenses. The court stated:

But as far as the ineffective assistance of counsel claim, it'd be difficult to convince me that seven years prior to the enactment of a law, that an attorney could predict what the legislature was going to do in creating the Sexually Violent Predator Act, to be effective a year after they passed it.

In denying defendant's PCR petition, the court stated:

The defendant here argues he should be allowed to withdraw his plea because he was never advised of the anticipated effects of the [SVPA]. He presents no evidence to me as to how the anticipated effects of that act could have been anticipated.

. . . .

A commitment pursuant to the [SVPA] is not a direct consequence of pleading guilty to a predicate sexual offense, because it does not automatically flow from the conviction. What must happen is that the attorney general must initiate the involuntary commitment procedure. A person may be convicted of a predicate sex offense and yet not be committed under the act because the evidence is not sufficient to find that his mental condition creates a likelihood of future sexually violent behavior.

The civil commitment under the Act is therefore a collateral consequence of the defendant's plea.

The PCR court noted that in State v. Bellamy, 178 N.J. 127 (2003), the Supreme Court held that "when the consequence of a plea may be so severe that a defendant may be confined for the remainder of his or her life, fundamental fairness demands that the trial court inform defendant of that possible consequence." Id. at 139. The Bellamy Court stated, however, that its holding would be retroactive "only to cases pending direct review at the time of the rule's announcement." Id. at 142-43. For this

reason, the PCR court concluded that the holding in Bellamy "was given limited retroactive effect. Here, defendant's direct appeal or direct review had been exhausted, had been concluded. Therefore, the pronouncement . . . is not applicable."

The court concluded that defendant did not receive ineffective assistance of counsel because, in its view, "the defendant's attorney could not have anticipated that the legislature would have enacted the [SVPA] and even if that had been anticipated, it would be impossible in my view to determine what if anything the provisions of such an act would have been."

The PCR court also denied defendant's request for relief pursuant to principles of res judicata and collateral estoppel. The court concluded that the fact that defendant was not found eligible for confinement at the ADTC was "an argument . . . that . . . should have been made before [the judge] who . . . civilly committed the defendant pursuant to the [SVPA]. I don't know if the argument was made, . . . [b]ut if it was to be made, it should have been made there." The court noted further that defendant was entitled to periodic reviews of his civil commitment and "that argument . . . can be made there also."

The PCR Court judge concluded that an evidentiary hearing was not required because "defendant's claims are vague, conclusory [and] speculative . . . . Bald assertions of ineffective assistance of counsel . . . do not warrant a hearing."

On appeal defendant presents the following arguments for our consideration:

POINT ONE

THE POST-CONVICTION RELIEF COURT ERRED IN FINDING THAT DEFENDANT FAILED TO DEMONSTRATE THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL

POINT TWO

THE POST-CONVICTION RELIEF COURT ERRED IN FAILING TO GRANT DEFENDANT AN EVIDENTIARY HEARING ON THE ISSUE OF INEFFECTIVENESS OF TRIAL COUNSEL

POINT THREE

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON HIS PETITION FOR POST-CONVICTION RELIEF (NOT RAISED BELOW)

Having considered these contentions in light of the record and the controlling law, we conclude that they are without merit.

A defendant's claim of ineffective assistance of counsel is considered under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in interpreting our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant first must show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Second, the defendant must show that counsel's deficient performance prejudiced his defense. Ibid.

The Strickland test applies to challenges to guilty pleas based on the alleged ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 209-10 (1985). To meet the first prong of the Strickland test, a defendant must show that his attorney failed to provide advice that "'was within the range of competence demanded of attorneys in criminal cases.'" Id. at 56, 106 S. Ct. at 369, 88 L. Ed. 2d at 208 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)). To meet the second prong of the test, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.

We conclude that defendant did not present sufficient evidence to raise a prima facie case of ineffective assistance of counsel. Therefore, the court properly denied his PCR petition without a hearing.

Defendant argues that,

[b]y focusing on what counsel should have known at the time the plea was entered, the [PCR] court has neatly avoided its responsibility to evaluate whether defendant made a knowing and voluntary plea. The notion that an attorney can give advice that is both correct at the time it was given but incorrect in actual practice is a fiction created only to serve the purposes of judicial economy, and disregards the right of a defendant.

In further support of this argument, defendant contends that the PCR court erred in relying upon "the Bellamy Court's arbitrary limitation on the application of its ruling to the cases then on direct appeal. . . . [T]his result fails to uphold the defendant's rights under the constitutions of New Jersey and the United States."

We concur with the PCR court's logical conclusion that trial counsel could not reasonably have anticipated the consequences of a statute enacted seven years after defendant entered his guilty plea. The protection afforded to such defendants in Bellamy, has, in the Supreme Court's discretion, been given limited retroactive application. Defendant simply does not fall within that scope.

Defendant contends that he would be "entitled to an evidentiary hearing" if "the facts [are] viewed in the light most favorable to defendant." This argument is wholly without merit. Viewing defendant's "facts" in the most favorable light still leads to the conclusion that he seeks to impose an impossible burden upon his trial counsel.

Finally, we reject defendant's contention that PCR counsel was ineffective for failing to provide the court with transcripts of his civil commitment hearing under the SVPA. Those transcripts would have had no bearing upon his PCR claims. It appears defendant never appealed his civil commitment order. As the PCR court noted, the arguments presented here should properly have been presented in that forum.

 
Affirmed.

(continued)

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A-1732-07T4

RECORD IMPOUNDED

February 26, 2009