STATE OF NEW JERSEY v. DAVID MIDDLEKAUFF

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6216-06T4 6216-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID MIDDLEKAUFF,

Defendant-Appellant.

___________________________

 

Submitted March 11, 2009 - Decided:

Before Judges C.L. Miniman and King.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 97-03-0361.

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

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This is an appeal from a denial of a petition for post-conviction relief (PCR). See Rule 3:22. Defendant raises one point on this appeal.

DEFENDANT'S MOTION FOR POST CONVICTION RELIEF MUST BE GRANTED AS HIS ATTORNEY WAS INEFFECTIVE IN PRESENTING HIS MOTION TO WITHDRAW HIS PLEA PRIOR TO SENTENCING.

Defendant had pled guilty on February 3, 1998 to two counts of sexual assault involving two minors in 1995-1996. His motion to withdraw his guilty plea was denied on June 5, 1998 by Judge Koenig. He was sentenced on July 10, 1998, consistent with his plea agreement. No direct appeal was taken from denial of his motion to withdraw the guilty plea.

On July 7, 2003 defendant filed a pro se petition for PCR, three days before the five-year anniversary of his conviction. R. 3:22-12(a). On August 18, 2003 Judge Mathesius denied this motion. We remanded for appointment of counsel and a hearing on the PCR application. Judge Kelly denied the petition in a meticulous eighteen-page oral opinion on March 26, 2007. We affirm for the reasons given in his oral opinion and for the following reasons.

Judge Kelly correctly concluded that the claims advanced by defendant respecting the adequacy of the plea proceedings could and should have been presented on direct appeal and on that basis only we can affirm. R. 3:22-3, -4. Defendant also presented ineffective-assistance-of-counsel claims predicated on a failure to secure medical evidence to support an alleged defense of diminished capacity based on defendant's bipolar disorder and sleep apnea. He contends that his plea counsel was ineffective for failing to gather that evidence and that the counsel he hired to move to withdraw his plea was also ineffective in the same respect. Defendant still has not presented any such evidence to any court. The medical reports he attaches do not establish any diminished capacity defense or mitigation and he has never obtained any psychiatric opinion that would have supported such a defense. As a result, even if his counsel was ineffective, he has failed to prove the second prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984) (unreliability of conviction). We thus find there is no merit to this claim.

Defendant's other ineffective-assistance-of-counsel claim revolves around his lack of knowledge that a violation of his community supervision for life would constitute a fourth-degree crime, exposing him to further imprisonment. He asserts that he would not have pled guilty if he had known this. Also with respect to Megan's Law supervision, he asserts that he was not given complete information as to the extent of restrictions on his daily life that would be imposed as a result of community supervision for life. Because he was not aware of these issues, he argues his statement that he understood the penal consequences of pleading guilty to the offenses negotiated in the plea was without foundation.

Defendant characterizes the transcript of the plea as sketchy in terms of the impact of community supervision for life, which he claims is not excused by the absence of any regulations. The relevant regulations were still in the process of promulgation at the time of his plea. However, he was told during the plea colloquy that he could not leave New Jersey unless the State waived its right to supervise him. The judge specifically said that the State of New Jersey might require him to remain in New Jersey for supervision. There was a discussion in which the court acknowledged that ordinarily parolees could relocate if the receiving state was willing to accept them. Also, Judge Kelly told defendant that a receiving state might refuse to accept him. Once parole was over, if he moved to another state which had a law similar to Megan's Law, he might well continue under supervision for life.

Defendant said that he understood under Megan's Law he had to register with the police chief of the municipality in which he was residing when he was released from custody. He was told that he had to do that in person, not by letter. When parole was over, if he left the State of New Jersey, he would have to notify the State Police by mail of his location. He was told that if he changed his residence, he had to notify the municipality of his new residence ten days before he moved. He was told that he had to verify his residence annually, even if he did not move. If he was found to be a repetitive and compulsive offender, he would have to register every ninety days instead of once a year. He was told that the details of community supervision for life were not in their final form and that they might change when the regulations were promulgated. He was also told that New Jersey law required that he submit a DNA sample as a registered sex offender.

On further questioning by defendant about the impact of community supervision for life, Judge Koenig explained that when he was paroled, the police in the town where he intended to live would be notified. Further, depending on his level of dangerousness, community organizations might be notified. If he was considered a predatory offender of the highest order, the public might be notified of his presence in the community. Defendant stated that he understood this.

The prosecutor also commented that, if defendant moved to Ohio, New Jersey would notify Ohio that he intended to reside there and that it would be up to Ohio to decide, if it had a statute similar to Megan's Law, whether or not to put him on community supervision for life. The judge then asked defendant if he had any other questions about the Megan's Law form and he said he did not think so.

Although counsel on this appeal contends that there was only a cursory and vague discussion of community supervision for life, the above discussion is not properly characterized in that fashion. We cannot imagine what restriction on his daily life was not adequately explored during the plea hearing. We know of no case suggesting that a defendant pleading to a sex crime be advised that violation of community supervision for life is a fourth-degree offense. This is an issue which also could have been raised on direct appeal but, as earlier discussed, no such appeal was filed.

 
Under the four-point standard in the recent opinion of Chief Justice Rabner, State v. Slater, ___ N.J. ___ (2009) (slip op. at 1-2), we find no mistaken exercise of discretion by Judge Kelly in refusing PCR relief. In sum, we see no colorable claim of innocence in this record and no persuasive reason for withdrawal of the guilty plea. Defendant had the benefit of a fair plea bargain, and obviously the substantial lapse of time alone is prejudicial and unfair to the State.

Affirmed.

(continued)

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A-6216-06T4

RECORD IMPOUNDED

March 31, 2009