STATE OF NEW JERSEY v. ROBERT C. SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4596-07T44596-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT C. SMITH,

Defendant-Appellant.

_______________________________

 

Submitted March 11, 2009 - Decided

Before Judges Axelrad and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

92-06-0911.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Gregory P. Jordan, Designated

Counsel, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Senior Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Robert C. Smith appeals from the order of the Law Division denying his motion for post-conviction relief (PCR). We affirm.

Indicted on ten counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and four counts of third-degree child endangerment, N.J.S.A. 2C:24-4(a), defendant pled guilty on September 21, 1992, to four counts of second-degree sexual assault pursuant to an agreement under which the State agreed to recommend a maximum sentence of seven years imprisonment with a mandatory five-year period of parole ineligibility. On July 22, 1993, defendant was sentenced in accordance with the plea agreement to an aggregate seven-year term with a five-year parole bar, to be served at the Adult Diagnostic and Treatment Center at Avenel. Defendant did not appeal from the judgment of conviction.

Upon expiration of his prison term, the State filed a petition to civilly commit defendant under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, which was granted. Thereafter, on February 18, 2004, defendant filed a pro se petition for PCR, seeking release from custody, or in the alternative, vacatur of his guilty plea on the ground that he was unaware of the possible civil commitment consequences of his plea since the SVPA, enacted in 1999, had not been in existence at the time, and that the statute's retroactive application violates his constitutional rights. The Law Division denied the relief as time barred, Rule 3:22-12. We summarily reversed for want of counsel and remanded for further proceedings. Following argument, the PCR judge denied the petition.

On appeal, defendant raised the following issues:

I. IT WAS ERROR NOT TO ALLOW THE DEFENDANT AN EVIDENTIARY HEARING OR GRANT HIS APPLICATION FOR POST-CONVICTION RELIEF.

A. THE PETITIONER SHOULD BE ALLOWED TO WITHDRAW HIS PLEA.

B. AN EVIDENTIARY HEARING SHOULD HAVE BEEN GRANTED.

C. THE COURT ERRED BY RELYING ON UNPUBLISHED OPINIONS WHICH CARRY NO PRECEDENTIAL VALUE.

II. PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

A. THERE ARE NO PROCEDURAL BARS AS

TO THE MIRANDA ARGUMENT WHICH WAS NOT RAISED BY TRIAL COUNSEL AND NOT RAISED IN A DIRECT APPEAL.

B. THE TRIAL ATTORNEY FAILED TO INVESTIGATE THE MATTER THEREBY FAILING TO RAISE THE MIRANDA ISSUE AND FAILING TO FILE AN AFFIRMATIVE DEFENSE.

C. POST-CONVICTION RELIEF COUNSEL FAILED TO RAISE WINNING ARGUMENTS RELATING TO THE MIRANDA ISSUE AND TO FILING AN AFFIRMATIVE DEFENSE.

D. POST-CONVICTION RELIEF ATTORNEY FAILED TO OBTAIN AFFIDAVITS OR CERTIFICATIONS FROM WITNESSES; FAILED TO RETAIN AN EXPERT WITNESS SO THAT THE PCR COURT WOULD BE AWARE THAT THERE WAS A PRIMA FACIE CLAIM; AND FAILED TO OBJECT TO THE COURT'S RELIANCE ON UNPUBLISHED OPINIONS.

We deem these arguments without merit. R. 2:11-3(e)(2).

Defendant first claims that the failure of the court and counsel to advise him of the collateral consequences of his plea, although not in effect at the time, nevertheless rendered his plea vulnerable to challenge. We disagree and find no constitutional infirmity in the application of the SVPA to defendant, who pled guilty prior to its enactment. See In re J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003) (rejecting any ex post facto challenge to the SVPA because commitment under the statute is civil and not penal in nature), certif. denied, 179 N.J. 312 (2004).

In State v. Bellamy, 178 N.J. 127 (2003), the Court held that fundamental fairness required that a defendant be advised of the possibility of involuntary civil commitment under the SVPA prior to entering a guilty plea to one of its predicate crimes. Id. at 138. If a defendant had not been so advised, he would be permitted to withdraw his guilty plea and proceed to trial. Id. at 140. However, "because the rule [] announce[d] today rests on this Court's standards for criminal justice," ibid., the Court limited the retroactive effect of its decision to "this case and those cases pending in which the defendant has yet exhausted all avenues of direct review." Id. at 143. On this score, the Court further noted "that full retroactivity . . . would have a disruptive effect on the administration of justice." Id. at 142. We are, of course, bound by the decisions of the Supreme Court and are not free to ignore them or create a "drastic change in the law." Rodriguez v. Cordasco, 279 N.J. Super. 396, 405 (App. Div.), certif. denied, 142 N.J. 451 (1995). We, therefore, decline to extend Bellamy's reach beyond the Court's express limitation.

We also reject defendant's claims that trial and PCR counsel were ineffective for failing to challenge defendant's confession under Miranda and to raise the insanity defense. In the first place, these claims were not raised in the PCR court and are, therefore, not properly presented here since neither is jurisdictional nor of great public interest. Monek v. Borough of South River, 354 N.J. Super. 442, 456 (App. Div. 2002). Such claims of ineffective assistance of counsel are also time-barred under Rule 3:22-12 since they were raised eleven years after entry of defendant's judgment of conviction and six years beyond the five-year time bar, and no exceptional circumstance or injustice has been demonstrated. State v. Afanador II, 151 N.J. 41, 51-52 (1997); see also State v. Milne, 178 N.J. 486, 492 (2004). And lastly, these claims are also procedurally barred because they could have been raised on direct appeal, but were not as defendant had failed to avail himself of that opportunity. R. 3:22-4.

These claims fail substantively as well. It is axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

 
Here, defendant has not demonstrated a Miranda violation, and, therefore, counsel could not be ineffective for failing to raise the issue. Defendant also complains trial counsel failed to investigate the propriety of an insanity defense yet offers absolutely nothing in his PCR application to suggest the feasibility of such a defense.

Affirmed.

Because defendant had previously been convicted of aggravated sexual contact, he was subject to a mandatory five-year parole ineligibility period. N.J.S.A. 2C:14-6.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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A-4596-07T4

April 6, 2009