STATE OF NEW JERSEY v. STEPHEN JAFFE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5510-07T45510-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN JAFFE,

Defendant-Appellant.

________________________________

 

Submitted September 16, 2009 - Decided

Before Judges Cuff and C.L. Miniman.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Accusation Nos. 01-01-0017; 01-10-0327 and 02-02-0072.

Yvonne Smith Segars, Public Defender, attorney for appellant (Adam W. Toraya, Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Stephen Jaffe appeals from the denial of his petition for post-conviction relief (PCR) in connection with three separate pleas of guilty. First, on January 16, 2001, he pled guilty to an accusation charging him with one count of third-degree burglary, N.J.S.A. 2C:18-2a(1), and on March 26, 2001, the sentencing judge imposed a probationary term on this plea. Second, on October 22, 2001, he pled guilty to an accusation charging him with third-degree assault on a police officer, N.J.S.A. 2C:12-1b(5), and on April 17, 2002, the judge sentenced him to a four-year term of incarceration. Third, on February 11, 2002, defendant pled guilty to an accusation charging him with third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, and fourth-degree stalking, N.J.S.A. 2C:12-10b, and on April 17, 2002, the judge sentenced him to a three-year term on the weapons charge, to be served consecutively to the four-year term imposed that day, and to a concurrent eighteen-month term on the stalking charge. The sentencing judge also imposed a concurrent four-year term for his violation of the probationary term imposed on March 26, 2001.

After he had served about three years in prison, defendant filed a motion for a change in custodial sentence, which was denied on April 1, 2005, without prejudice to reconsideration in a few months. A second motion for change of custodial sentence was considered on August 15, 2005, at which time the sentencing judge granted the motion and imposed a four-year probationary sentence with conditions. However, the following day, the judge vacated his order and delayed defendant's release until the Attorney General had time to review defendant's case pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, because defendant had been convicted of rape in 1977. On October 12, 2005, the judge denied defendant's motion for a change in custodial sentence and defendant appealed. We affirmed. State v. Jaffe, No. A-1912-05 (App. Div. Dec. 4, 2006), certif. denied, 190 N.J. 256 (2007). By that time, defendant was confined at the Special Treatment Unit (STU) in Avenel.

After his petition for certification was denied, defendant filed a pro se petition for PCR. He alleged ineffective assistance of counsel because counsel failed to inform him that his 2001 and 2002 guilty pleas might subject him to civil commitment under the SVPA. Defendant asserted that, had he known incarceration might lead to civil commitment under the SVPA, he would not have pled guilty to any of the offenses.

Defendant also alleged, with respect to the assault charge, that his counsel did not show any police reports to him or review them with him. He further contended his attorney did not advise him that his ignorance of the victim's status as a police officer would constitute a defense to the charge. Also, his attorney never discussed intoxication as a defense and did not procure hospital records to verify the injuries the officer claimed. As a result, defendant believed he was guilty of the assault-on-an-officer charge and would not have so pled had he known its elements and the potential defenses he had to the charge.

With respect to the stalking, defendant asserted that his attorney did not review the possibility of filing a motion to suppress the evidence, did not review any discovery with him, never explained the requisite mens rea for stalking, and never advised him that mere possession of a weapon is not sufficient for a conviction of possession of a weapon for unlawful purpose. He denied having any unlawful purpose in connection with the knife in his possession. He also claimed he was forced to plead guilty because his attorney required additional money to try the case.

After hearing oral argument on the PCR petition, the judge denied the application without an evidentiary hearing. He found defendant had freely and voluntarily pled guilty and established a factual basis for the pleas. The judge found that State v. Bellamy, 178 N.J. 127 (2003), which requires the judge and counsel to advise a defendant pleading to a sexually violent crime of the potential for civil commitment, applied only to cases on direct appeal at the time the decision was announced. He also found defendant had no direct appeal pending when the Bellamy decision was announced on December 11, 2003. He noted defendant had not pled to a sexually violent crime and, thus, Bellamy did not apply to the pleas at issue here. This appeal followed.

Defendant raises the following issues on appeal:

POINT ONE: DEFENDANT WAS DENIED HIS RIGHT TO FUNDAMENTAL FAIRNESS IN THE CONVICTION PROCEEDINGS BECAUSE HE WAS NOT ADVISED OF THE SERIOUS AND LIFELONG CONSEQUENCES OF THE SEXUALLY VIOLENT PREDATOR ACT AND THE EFFECT THAT HIS INCARCERATION WOULD HAVE ON HIS POSSIBLITY OF A LIFELONG CIVIL COMMITMENT.

POINT TWO: THE COURT ABUSED ITS DISCRETION BY DENYING DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM AT TRIAL, BY THE U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PAR. 10.

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 121 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Ibid. (cit ing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992)), and accord defer ence to credibility determinations, ibid. (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 552 U.S. 1119, 118 S. Ct. 1059, 140 L. Ed. 2d 121 (1998)). However, where no evidentiary hearing has been held, we "may exercise de novo review over the factual inferences drawn from the documentary record by the PCR judge." Ibid. (citing Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 502 U.S. 902, 112 S. Ct. 280, 116 L. Ed. 2d 232 (1991)). Thus, it is within our authority "to conduct a de novo review of both the factual findings and legal conclusions of the PCR court." Ibid. Where no credibility determinations have been made, "we invoke our original jurisdiction in the review of th[e] matter." Ibid. Such a review is appropriate here as there was no evidentiary hearing and no credibility determinations were made.

In his first point, defendant contends that fundamental fairness demands that the judge and counsel advise a defendant pleading guilty to any offense carrying a term of incarceration that a guilty plea may subject him to an application for a civil commitment if he has any conviction for a sexually violent offense in his prior record. Thus, defendant seeks an extension of the ruling in Bellamy, which required such notice only where defendant was pleading to a sexually violent offense and which was only retroactive to direct appeals in the pipeline at the time of the Bellamy decision. Bellamy, supra, 178 N.J. at 141, 145. Defendant did not appeal any of the convictions now before us and concedes that he is not encompassed within the pipeline retroactivity afforded by the Bellamy Court, even though he now asserts on PCR that his 2001 and 2002 convictions trigger the same fundamental-fairness arguments recognized by the Supreme Court in Bellamy.

Clearly, the fundamental-fairness issue in Bellamy revolved around a plea to a predicate offense under the SVPA. That concern is not present here. The offenses to which defendant pled were not predicate offenses under the SVPA. The Bellamy Court decided against full retroactive application of its ruling because of the disruptive effect it would have on the administration of justice. Id. at 142. In its determination, the Court cited its practice of avoiding complete retroactivity when announcing a new rule where such an application would undermine the validity of a large number of convictions. Id. at 141 (citing State v. Johnson, 166 N.J. 523, 547 (2001)). Indeed, the Court stated that the lack of data on the number and kinds of cases that would be affected by complete retroactivity and the impact complete retroactivity would have on the administration of justice mandated that its ruling should apply only to cases pending direct review at the time of the Court's decision. Id. at 142-43. As such, we are not at liberty to extend Bellamy as sought by defendant.

Additionally, the SVPA permits the Attorney General to seek commitment of any person, anywhere, at any time if the Attorney General believes the individual may be a sexually violent predator, whether or not incarcerated. In re Civil Commitment of P.Z.H., 377 N.J. Super. 458, 464-65 (App. Div. 2005); N.J.S.A. 30:4-27.28d. Thus, irrespective of defendant's 2001 and 2002 convictions and incarceration, the Attorney General was free to seek his commitment at any time. It is, of course, true that the statute provides for commitment of sexually violent persons when "[a]n inmate . . . is scheduled for release upon expiration of a maximum term of incarceration," N.J.S.A. 30:4-27.28c. It is also true defendant came to the attention of the Attorney General because of an established practice whereby inmates with histories of predicate offenses are screened prior to release.

Nonetheless, we are satisfied that fundamental fairness does not require notice prior to a plea to a non-predicate offense merely because the SVPA permits an application for civil commitment upon release from a maximum term of incarceration. Defendant's potential civil commitment and his current custody at the STU in Avenel were not collateral consequences of his plea to the various offenses charged in 2001 and 2002 but, rather, are the collateral consequences of his conviction in 1977 as a sexually violent predator. Thus, it is irrelevant whether he was committed under N.J.S.A. 30:4-27.28c or -27.28d. Defendant was not entitled to withdraw his pleas based on the lack of a Bellamy notice. We also note, as we observed in his last appeal, Jaffe, supra, No. A-1912-05 (slip op. at 7), even if defendant were entitled to withdraw his pleas because he was not given a Bellamy notice, he would still remain civilly committed.

With respect to defendant's claims of ineffective assistance of counsel in other respects, after carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that defendant's arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add only these brief comments.

With respect to the assault charge, defendant has failed to prove his level of intoxication to demonstrate it constituted a defense, submit the police report and explain what therein is relevant here, and produce any evidence of the injuries the officer suffered to establish a defense to the assault charge, contrary to the requirements of State v. Petrozelli, 351 N.J. Super. 14, 23 (App. Div. 2002), and State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). Further, his claim that he was not aware of the victim's status is impeached by his plea of allocution, where he admitted the victim identified himself as a police officer before defendant assaulted him. Thus, defendant did not establish a prima facie case of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987). As a consequence, he was not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992); Cummings, supra, 321 N.J. Super. at 169-70.

This is also true of his claims regarding the stalking and weapons charges. He has not demonstrated a factual basis for a successful motion to suppress evidence, submitted any discovery and explained how it would have affected his plea, or attempted to demonstrate how his state of mind was insufficient to satisfy the requisite mens rea. Neither has he offered any evidence tending to show that he had no unlawful purpose in possessing the knife. He had the knife strapped under his arm and was arrested while standing outside the stalking victim's home after having called the victim four times and, obviously, been rebuffed. At that time, he also had a ski mask, handcuffs, rope, duct tape, and other items in his possession. These facts strongly suggest an unlawful purpose. Thus, defendant was not entitled to a plenary hearing on his non-Bellamy claims of ineffective assistance of counsel. Preciose, supra, 129 N.J. 462; Cummings, supra, 321 N.J. Super. at 169-70.

Affirmed.

Defendant served an indeterminate term at the Avenel Diagnostic and Treatment Center (Avenel). He was later resentenced to five to seven years concurrent with the Avenel sentence and was ultimately released in 1987.

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A-5510-07T4

November 17, 2009