STATE OF NEW JERSEY v. CARLTON GREEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1638-08T41638-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLTON GREEN,

Defendant-Appellant.

_________________________________

 

Submitted June 2, 2010 - Decided

Before Judges Wefing and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, No. 05-03-0530.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Mark S. Carter, Designated Counsel,

of counsel and on the brief).

Robert D. Laurino, Acting Essex County

Prosecutor, attorney for respondent (Raymond W.

Hoffman, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a trial court order denying his petition for post-conviction relief. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

Defendant was charged in a three-count indictment with criminal sexual contact, a crime of the third degree, N.J.S.A. 2C:14-3b; luring a child, a crime of the second degree, N.J.S.A. 2C:13-6; and endangering the welfare of a child, a crime of the third degree, N.J.S.A. 2C:24-4a. Defendant eventually entered a negotiated plea of guilty to one count of endangering the welfare of a child and in August 2005 was sentenced to three years incarceration, to be served at the Adult Diagnostic and Treatment Center at Avenel. Following the completion of that sentence, defendant was not released, however. Rather, he was civilly committed as a sexually violent predator. N.J.S.A. 30:4-27.24 to -27.38. In July 2007, defendant filed a petition for post-conviction relief, contending that the attorney who represented him in connection with the guilty plea was ineffective for not advising him that he faced the possibility of civil commitment. The trial court denied defendant's petition without conducting a plenary hearing, and this appeal followed. On appeal, defendant makes one contention.

DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED BECAUSE HIS CLAIMS RAISED WERE OF A CONSTITUTIONAL NATURE AND HE DEMONSTRATED INEFFECTIVE ASSISTANCE OF COUNSEL

The standard governing a claim of ineffective assistance of counsel is well-known. A defendant must establish both elements of a two-prong test: that the performance of his attorney was "deficient" and that his defense was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). This two-prong test has been expressly adopted by the New Jersey Supreme Court. State v. Fritz, 105 N.J. 42, 58 (1987).

We note initially that we disagree with the trial court's conclusion that defendant's petition for post-conviction relief is barred because he did not pursue the issue on direct appeal. Defendant could not have pursued this issue on direct appeal; he asserts that he was not aware that he faced commitment as a sexually violent predator until he completed his prison sentence.

In State v. Bellamy, 178 N.J. 127, 138 (2003), the Supreme Court held that "fundamental fairness" requires that a trial court inform a defendant at the time he enters a plea of guilty that he may face commitment as a sexually violent predator for a period longer than the original sentence.

[W]hen the consequence of a plea may be so severe that a defendant may be confined for the remainder of his or her life, fundamental fairness demands that the trial court inform defendant of that possible consequence. The failure of either the court or defense counsel to inform defendant that a possible consequence of a plea to a predicate offense . . . is future confinement for an indefinite period deprives that defendant of information needed to make a knowing and voluntary plea.

[Id. at 139.]

The trial court concluded that defendant had not established a prima facie case of ineffective assistance of counsel based upon the plea transcript. From our review of that transcript, we are unable to agree.

The prosecutor outlined the State's understanding of the terms of the plea bargain: defendant would plead guilty to one count of child endangerment, the other charges would be dismissed, the State would not seek a discretionary extended term under N.J.S.A. 2C:44-3a, it would recommend a sentence of three years flat, subject to an evaluation at Avenel, DNA testing, registration under Megan's Law, N.J.S.A. 2C:7-1 to -23, and community supervision for life. The trial court responded that it had indicated that if the Avenel evaluation revealed that defendant was not eligible for treatment at that facility, it would impose a probationary sentence, conditioned on 364 days in custody.

The trial court then asked defendant if he had heard the terms of the plea bargain that had been recited and if that accorded with his understanding. Defendant said that it did. The trial court then questioned defendant as to his understanding of the various rights he was surrendering as part of pleading guilty. During the course of that colloquy, the trial court posed the following series of questions to defendant:

THE COURT: You know also that because this is a sexual offense, you must submit to evaluation at the Adult Diagnostic and Treatment Center in Avenel?

THE DEFENDANT: Yes, sir.

THE COURT: And you know that if they determine there at that center you are eligible for treatment, that is that you're repetitive and compulsive and that your [sic] amenable, then you may very well serve your sentence at the Adult Diagnostic and Treatment Center at Avenel.

THE DEFENDANT: Yes.

THE COURT: And that if you were sentenced to State prison, you would first be eligible for consideration for parole at nine months. That doesn't mean you receive parole at nine months, but you'd first be eligible for parole at nine months; is that correct?

THE DEFENDANT: Yes.

THE COURT: But if you were committed to the Adult Diagnostic and Treatment Center, then you might very well be kept there longer than the period that you had first become eligible for parole and even for the entirety of the sentence. And after the sentence there might -- you do run the risk that you would be committed civilly for additional time, indefinite time; do you understand that?

THE DEFENDANT: Yes, sir.

That last question and response is the only indication in the record before us of any consideration of the possibility that defendant faced the potential for further confinement as a sexually violent predator. It is, moreover, at least facially in conflict with the prosecutor's earlier representation that the State would not be seeking an extended term of confinement.

We recognize that it is entirely possible that defendant did have conversations with his attorney that involved the possibility of such a civil commitment. If that occurred, defendant would, of course, be unable to establish that he received ineffective assistance from his trial attorney. The state of the record, however, is too tenuous to permit us to resolve that question. The State in its responding brief refers to the papers defendant filled out in conjunction with pleading guilty. Neither party, however, has supplied those papers to us, and thus we are unable to determine whether they support or undermine defendant's claim.

 
We thus reverse the trial court's order denying defendant's petition and remand this matter to the trial court for a plenary hearing.

Reversed and remanded.

We have used the spelling of defendant's name as he recited it the time he plead guilty. We note the indictment, plea forms and judgment of conviction use the spelling "Greene."

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A-1638-08T4

August 2, 2010