STATE OF NEW JERSEY v. ROBIN C. PINES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5303-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBIN C. PINES,

Defendant-Appellant.

_____________________________________

December 3, 2010

Submitted November 17, 2010 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 96-07-0739 and 96-10-0962.

Yvonne Smith Segars, Public Defender, attorney for appellant (Thomas H.E. Hallett, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, on the brief).

PER CURIAM

In this appeal of an order denying post-conviction relief (PCR), defendant argues he was denied the effective assistance of counsel because he was not informed of the potential for involuntary civil commitment when he pled guilty to a predicate offense in 1999. We reject defendant's arguments and affirm.

On August 3, 1999, defendant entered guilty pleas to two separate indictments. As to the first indictment, defendant pled guilty to second-degree manslaughter, N.J.S.A. 2C:11-4; as to the second, he pled guilty to second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1; N.J.S.A. 2C:1-2(a)(4). Defendant was sentenced on March 2, 2000, to consecutive six-year prison terms that were subject to two-year periods of parole ineligibility.

In December 2004, shortly before his scheduled release date, defendant was involuntarily committed pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to 27.38. We affirmed the order of commitment by way of an unpublished opinion.

Defendant filed a pro se PCR petition on September 14, 2007, arguing he was not informed of the potential for civil commitment when he pled guilty. The PCR judge conducted an evidentiary hearing to examine these contentions and, ultimately, denied the PCR petition by way of a written decision dated November 20, 2008.

Defendant appealed, arguing:

I. [DEFENDANT'S] CONVICTION SHOULD BE SET ASIDE BECAUSE HE WAS NOT ADVISED THAT THE [SVPA] WOULD APPLY TO HIM.

II. APPLICABILITY OF THE [SVPA] TO THE [DE-FENDANT] IS A DIRECT, RATHER THAN COLLATER-AL, CONSEQUENCE OF HIS GUILTY PLEA.

III. [DEFENDANT] WAS DENIED EFFECTIVE ASSIS-TANCE OF COUNSEL AT HIS PLEA HEARING AND SENTENCING. . . .

IV. [DEFENDANT'S PCR PETITION] WAS TIMELY FILED BECAUSE HE COULD NOT HAVE KNOWN ABOUT THE APPLICABILITY OF THE [SVPA] UNTIL HE WAS CIVILLY COMMITTED IN DECEMBER 2004.[1]

The PCR judge heard the testimony of defendant and his trial attorney in inquiring into the factual question upon which all defendant's legal arguments are based: whether defendant was informed of the consequences of involuntary civil commitment when he pled guilty in 1999.

In weighing the evidence gathered at that time, the judge first concluded that the PCR petition was time-barred, citing Rule 3:22-12. In that regard, the judge not only recognized the considerable passage of time but also the prejudice to the State if relaxation of the time-bar was permitted. The judge found the State would be prejudiced by relaxation because one witness died in 2001 and the location of another was unknown. Second, the judge held that defendant could not take advantage of State v. Bellamy, 178 N.J. 127, 143 (2003) (holding "that prior to accepting a guilty plea to a predicate offense, trial courts must inform defendants of possible consequences under the [SVPA]"), because defendant did not have an appeal pending at the time Bellamy was decided. We need not consider defendant's arguments regarding those two determinations because we are satisfied that the third basis for the judge's denial of PCR -- his factual finding that defendant was made aware of the consequences of civil commitment -- is fully supported by the evidence and entitled to our deference.

In considering the evidence relating to what defendant knew and was told when he pled guilty, the PCR judge chiefly relied on defendant's execution of a plea form, which expressly stated defendant could be committed as a result of his guilty plea. The judge found defendant's trial attorney credible when he testified that he read each question in the plea form to defendant and the judge found defendant's testimony to the contrary to be unworthy of belief. The PCR judge also relied on the fact that defendant was asked by the trial judge about his answers to the plea form at the time he entered his guilty plea. In deferring to these findings, as we must, State v. Locurto, 157 N.J. 463, 470-71 (1999), we conclude that the predicate for the first prong of defendant's ineffective-assistance-of-counsel argument -- that counsel made a professional error -- is lacking.

A

1We have renumbered defendant's point headings because his brief did not contain a Point I.