STATE OF NEW JERSEY v. M.N.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6015-07T46015-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.N.,

Defendant-Appellant.

____________________________________________

 

Submitted December 2, 2009 - Decided

Before Judges Graves and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Cumberland County,

Indictment Nos. 03-12-1145 and 03-12-1168.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Jarrid H. Kantor, Designated

Counsel, of counsel and on the brief).

Ronald J. Casella, Cumberland County Prosecutor, attorney for respondent; Matthew M. Bingham,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant M.N. appeals from an order denying his petition for Post Conviction Relief (PCR). The basis for his petition was that he was not advised of the implications of the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27 to -27.38. The SVPA was in effect when he pled guilty to two separate sexual offenses that placed him under the purview of the Act. Defendant contends that if he had known of the SVPA's application which could result in an indefinite potential life commitment beyond the sentence he agreed to serve, he would not have entered into a guilty plea. We now affirm.

The relevant factual background may be summarized as follows. On May 7, 2004, when he was twenty-six years old, defendant pled guilty to first-degree aggravated sexual assault and second-degree sexual assault. The sexual assault involved two young girls, one who was twelve-years of age, and the other was fifteen. In exchange for the guilty pleas, the State agreed to dismiss other charges and to recommend a ten-year sentence subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the first-degree sexual assault with a consecutive five-year term for the second-degree sexual assault. These were the minimum terms for the respective degrees of crime.

At sentencing on October 15, 2004, the court found that defendant was a suitable candidate for treatment at Avenel. However, through counsel, defendant indicated he was unwilling to participate in the program at Avenel. Accordingly, defendant was sentenced, in accordance with the plea agreement, to an aggregate sentence of fifteen years imprisonment with eight years and six months of parole ineligibility.

In his PCR petition, defendant certified that his attorney never told him that he could be confined pursuant to the SVPA after he served his sentence. He claimed that he would not have pled guilty if he knew he could be potentially committed for the rest of his life under the SVPA. His then-attorney certified that he had no recollection of discussing the SVPA with defendant.

Both defendant and his attorney testified at a hearing on March 14, 2008. Defendant did not claim that he wanted to withdraw his guilty plea because he was innocent. Furthermore, he agreed he received a "good deal" if he was not further confined under the SVPA. He admitted that he never asked his attorney to file an appeal, even though he claimed in his PCR petition that his attorney was ineffective for failing to file an appeal, to fully explain community service for life, and to explain the ramifications of the SVPA.

In denying defendant's petition for PCR, Judge Geiger rejected the State's contention that defendant's application was premature because he was not at the end of serving his sentence and scheduled for release when his candidacy for the SVPA would be under consideration. The judge noted that further delay in deciding the issue could impact the ability of the parties to try the case. Judge Geiger acknowledged State v. Bellamy, 178 N.J. 127 (2003), which was decided on December 11, 2003, several months before defendant entered his plea on May 7, 2004, and which held that fundamental fairness requires the trial court to "ensure that a defendant understands that, as a result of his or her plea, there is a possibility of future commitment" under the SVPA and "that such commitment may be for an indefinite period, up to and including lifetime commitment." Id. at 139-40.

Notwithstanding, Judge Geiger found that defendant was not a credible witness when he maintained that he would not have entered a guilty plea if he had known that the SVPA could potentially result in his further confinement beyond the serving of the sentence to which he had agreed. Judge Geiger further observed that there was overwhelming proof of his guilt and that defendant was facing an aggregate sentence of thirty to forty years, with a seventeen-year parole disqualifier when his attorney negotiated the favorable plea agreement. Even defendant acknowledged that it was a beneficial plea agreement, and the court agreed.

Given defendant's lack of credibility, the strength of the State's case, and the favorable plea agreement, the PCR judge rejected his claim that he would not have entered a guilty plea if he had known he would face the possibility of future civil commitment under the SVPA. As a result, there was no showing that defendant was prejudiced by his attorney's failure to explain the implications of the SVPA to him.

On appeal, defendant raises the following points for our consideration:

POINT I

DEFENDANT'S PLEA LACKED FUNDAMENTAL FAIRNESS

AS DEFENDANT WAS UNAWARE THAT AS A CONSEQUENCE OF HIS PLEA, THAT HE FACES THE POSSIBILITY OF AN INDEFINITE CIVIL CONFINEMENT.

A. MISINFORMATION RELATED TO A DEFENDANT'S ELIGIBILITY FOR INDEFINITE CIVIL COMMITMENT IS

PER SE MATERIAL IN A DEFENDANT'S DECISION TO ENTER INTO A PLEA

AND, THEREFORE, BECAUSE OF SUCH

MISINFORMATION THE DEFENDANT

SHOULD BE ALLOWED TO WITHDRAW HIS PLEA.

B. EVEN IF MISINFORMATION RELATED

TO A DEFENDANT'S ELIGIBILITY

FOR INDEFINITE CIVIL COMMITMENT

IS NOT PER SE MATERIAL THIS

COURT MUST FIND THAT THE MIS-INFORMATION WAS MATERIAL IN

THIS CASE.

POINT II

THE ERROR OF TRIAL COUNSEL NOT TO INFORM [M.N.] OF THE POSSIBILITY OF CIVIL COMMITMENT AFTER BELLAMY HAD BEEN DECIDED

IS SO EGREGIOUS THAT ACTUAL PREJUDICE NEED NOT BE SHOWN.

The thrust of defendant's legal argument is that he was unaware of the possibility of an indefinite civil commitment when he pled guilty and, therefore, his plea was involuntary and not knowing. Consequently, it is asserted that he should have been permitted to withdraw his guilty plea. He also maintains that his trial counsel's failure to inform him of the possibility of the civil commitment after his sentence was served constituted ineffective assistance and affected the outcome of the proceeding.

We do not disagree with the proposition that the failure to inform him of the potential civil commitment under SVPA was material to the taking of defendant's plea to the two counts under separate indictments. Indeed, a plea withdrawal may be appropriate where a defendant is not informed of a material element of a plea and it would have made a difference had that been made known to him at the time the plea was entered. See State v. Johnson, 182 N.J. 232, 241 (2005) (permitting plea withdrawal where defendant was unaware of period of extended parole ineligibility under NERA); State v. Kiett, 121 N.J. 483, 499 (1990) (allowing withdrawal where a juvenile mistakenly believed he faced the death penalty and entered a guilty plea to avoid its imposition); State v. Howard, 110 N.J. 113, 118-24 (1988) (allowing withdrawal where defendant was not informed of parole eligibility implications of sentence to adult diagnostic and treatment center); State v. Nichols, 71 N.J. 358, 361 (1976) (permitting withdrawal where the court and prosecutor misinformed defendant about a material element of plea negotiation, which defendant relied upon in entering his plea).

However, Judge Geiger held an evidentiary hearing and was satisfied that defendant's contention that he would not have accepted the plea had he known of the consequences under the SVPA was not credible. Judge Geiger explained in detail why this testimony was not believable. We are admonished not to disturb the "factual findings and legal conclusions of the trial judge unless we are convinced they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interest of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (citation omitted). Defendant's credibility is the critical issue, and we are not about to second guess the trial court's findings. Thus, the rejection of defendant's assertion, that he would not have pled guilty had he known of the SVPA's reach after he served his sentence, is fatal to his claim for relief.

Moreover, withdrawal of a plea is governed by the recent opinion of our Supreme Court in State v. Slater, 198 N.J. 145 (2009), where the Court set forth the factors a trial judge must consider in evaluating the motion to withdraw a guilty plea. They are:

(1) whether the defendant has asserted a

credible claim of innocence;

(2) the nature and strength of defendant's

reasons for withdrawal;

(3) the existence of a plea bargain; and

(4) whether withdrawal would result in

unfair prejudice to the State or unfair

advantage to the accused.

[Id. at 157-58.]

Since the plea withdrawal application was brought post-sentencing, defendant is obliged to satisfy the more rigorous standard of "manifest injustice." Id. at 158.

At the outset, we note that defendant's reason for withdrawal was the failure to be advised of the ramifications of the SVPA. That particular factor, however, was undercut by the PCR judge not believing that it made a difference in whether he would not have accepted the plea. Additionally, Judge Geiger found that this was a case in which the State's proofs were overwhelming and that defendant was not claiming he was innocent of the charges. Indeed, defendant himself acknowledged it was a favorable plea bargain. While the factor of whether withdrawal would result in prejudice to either side was not mentioned, there were clearly enough reasons that in weighing and balancing the applicable Slater factors, a rejection of a plea withdrawal was well-supported by the record.

Because we have determined that a plea withdrawal was properly rejected by the trial court, the ineffective assistance of counsel claim could not survive because there would be no change in the outcome of the proceeding even if defendant's plea counsel did not advise him of the SVPA's applicability and potential consequences. The second prong of the test to determine counsel's ineffectiveness could not be satisfied because the outcome would be the same. Strickland v. Washington, 466 U.S. 688, 693-96 (1984), 104 S. Ct. 2052, 2067-69, 80 L. Ed. 2d 674, 697-99 (1984); State v. Fritz, 105 N.J. 42 (1987). The PCR judge properly denied defendant's PCR petition.

Affirmed.

(continued)

(continued)

9

A-6015-07T4

December 24, 2009