STATE OF NEW JERSEY v. T.J.T

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3160-07T43160-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

T.J.T.,

Defendant-Appellant.

________________________________________

 

Submitted October 21, 2009 - Decided

Before Judges Sabatino and Newman.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 92-07-2739.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, T.J.T., appeals from an order denying his motion to withdraw a guilty plea. On appeal, counsel for defendant describes the appeal as one from a denial of post-conviction relief (PCR). In either event, we affirm.

Defendant pled guilty to first-degree aggravated sexual assault, second-degree aggravated sexual assault, and third-degree terroristic threats on September 30, 1992. Before he was sentenced, pursuant to a plea agreement, he sought to withdraw his guilty plea and his application was denied. The trial judge sentenced defendant on October 26, 1993, to an aggregate term of fifteen-years imprisonment with five years of parole ineligibility. Defendant never appealed from that sentence, nor did he appeal from the denial of the motion to withdraw his guilty plea.

Defendant served his maximum fifteen-year sentence. In the interim, in 1998, the Sexual Violent Predator's Act (SVPA) was enacted. The State moved under the SVPA in 2002 to have defendant civilly committed and was successful in doing so. Defendant appealed from the SVPA civil commitment in 2004. We affirmed, and the Supreme Court denied certification. Defendant, then, was unsuccessful in multiple habeas corpus proceedings in the United States District Court for the District of New Jersey to terminate his civil confinement.

On or about June 21, 2007, defendant filed a PCR motion, seeking to withdraw his guilty plea. The motion was forwarded to Judge Michael Ravin, who treated it as a belated motion to withdraw defendant's guilty plea. The PCR judge did not hold a hearing and denied relief.

On appeal, defendant raises the following issues for our consideration.

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

A. Defendant's petition is not barred.

B. The trial court denied defendant the opportunity to be heard and have assistance of counsel on his first petition for post-conviction relief.

C. Defendant showed that his guilty plea was not knowing, voluntary, and intelligent regarding his reasonable expectations of the plea agreement; alternatively, a hearing was required to assess whether defendant's plea counsel was ineffective.

In a pro se brief, defendant raises the following arguments:

POINT I

DEFENDANT WAS DENIED (a) EFFECTIVE ASSISTANCE OF COUNSEL; (b) PROBABLE CAUSE HEARING IN VIOLATION OF U.S.C.A. 5TH, 6TH, 14TH [SIC], AND N.J.S.A. ART. 10 PAR 8 [SIC]; AND N.J.S.A. 30:4-27.28.

POINT II

DEFENDANT WAS DENIED DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE LAW, AS GUARANTEED BY THE STATE AND FEDERAL CONSTITUTION [SIC] FOURTEENTH AMENDMENT.

We address the issues in the order first raised in the brief filed on defendant's behalf and then in his pro se brief.

Initially, it should be noted that defendant's notice of appeal is "from the final order denying defendant's motion to withdrawal [sic] a guilty plea entered on June 13, 2007, in the Superior Court . . . ."

Defendant presents two arguments: (1) that his trial counsel was ineffective because he did not review discovery with defendant and he did not discuss with defendant the relevant strengths and weaknesses of the State's case, which would have influenced defendant's decision to enter into a plea agreement, and (2) that he was not advised that he could serve a longer term of confinement through the SVPA by way of a civil commitment.

With respect to the first ineffective assistance of counsel claim, defendant makes no allegations as to what specific action would have made a difference. His then-counsel does not provide any support for his petition. Moreover, defendant was obliged to bring this claim within five years of the date of his conviction, not almost fourteen years after his original sentencing. R. 3:22-12(a). There was no excusable neglect to lift the five-year bar. Indeed, defendant completed his prison sentence and only sought to challenge his conviction when he was unsuccessful in being released from his civil commitment pursuant to the SVPA. In any event, defendant should have appealed from the denial of his motion to withdraw his guilty plea made at the time he was sentenced. He did not do so then and cannot use PCR to do so now. PCR is not available as a substitute for a direct appeal. R. 3:22-3.

With respect to not being advised that he could be committed beyond his prison term, defendant is not constitutionally entitled to clairvoyance by his attorney. His attorney cannot be faulted in 1993 for not anticipating that the Legislature would adopt the SVPA, effective August 12, 1999. N.J.S.A. 30:4-27.24. The fact that defendant signed a plea form referencing that he could spend a longer time in prison were he sentenced to Avenel is not the same as being confined beyond his maximum sentence. An Avenel sentence refers to a possible longer term in prison within defendant's fifteen year maximum, not beyond it. Nevertheless, defendant still is unsuccessful on this point because he is not entitled to pipeline retroactivity under State v. Bellamy, 178 N.J. 127, 139 (2003), where pre-plea advice on the implication of civil commitment under the SVPA was found to be necessary, ensuring a voluntary and knowing plea was entered. Because the issues raised by defendant could be decided on the record presented, no hearing was required. The trial court did not err by not conducting a hearing.

In defendant's pro se brief, he contends that he was denied the effective assistance of counsel in his civil commitment hearing. Defendant's appeal is from the order entered by Judge Ravin, which did not include his civil commitment under the SVPA. Thus, there is nothing properly before us to consider.

Moreover, these very arguments, numbered Points I and II in defendant's pro se brief concerning a denial of due process and equal protection of the law, were presented on direct appeal from his civil commitment and rejected by this court as "without sufficient merit to warrant discussion in a written opinion." In re the Civil Commitment of T.J.T., No. A-1335-02T2 (App. Div. July 12, 2004) (slip op. at 16), certif. denied, 183 N.J. 213 (2005) (citing R. 2:11-3(e)(2)).

Additionally, the same issues were presented to the federal district court through a habeas corpus petition challenging his civil commitment judgment and denied by that court. [T.J.T.] v. Harvey, No. 05-5986 (D. N.J. Aug. 7, 2006). The Third Circuit denied defendant's application for a certificate of appealability on March 15, 2007, finding that, for the same reasons stated by the District Court, defendant had not made a substantial showing of the denial of a constitutional right. See [T.J.T.] v. Harvey, No. 07-1863 (D. N.J. May 2, 2007) (slip. op. at 2-3). Thus, even had these same issues been properly raised here, they would have been rejected as previously litigated in not just one, but two prior forums.

 
Affirmed.

N.J.S.A. 30:4-27.24 to -27-38.

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A-3160-07T4

RECORD IMPOUNDED

November 19, 2009