STATE OF NEW JERSEY v. J.W.G

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0302-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.W.G.,

Defendant-Appellant.

_________________________________

May 12, 2011

Submitted May 2, 2011 - Decided

Before Judges Reisner and Sabatino.

Onappeal fromthe SuperiorCourt ofNew Jersey, LawDivision, CamdenCounty, IndictmentNos. 02-11-3935 and 03-08-2815.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant J.W.G. appeals from an April 29, 2009 order denying his petition for post-conviction relief. We affirm.

I

In November 2002, defendant was indicted on seven counts charging him with a litany of sexual offenses against an eight-year-old female relative, as well as multiple additional counts charging him with weapons offenses and receiving stolen property. Facing decades of prison time if convicted, defendant agreed to a negotiated plea agreement under which he pled guilty to one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), in exchange for the dismissal of all other charges. Pursuant to the agreement, the State would recommend a prison term of twelve years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.1 The plea agreement form specifically notified defendant that the court would impose "a special sentence of community supervision for life." Defendant circled "yes" indicating that he understood that aspect of the sentence, and he signed and dated that page of the form. Judge Baxter also specifically advised defendant about this aspect of the sentence on the record at the February 3, 2003 plea hearing.

Defendant failed to appear for the scheduled April 25, 2003 sentencing and was thereafter indicted for bail jumping. After defendant was apprehended, Judge Baxter sentenced him on the sexual assault, on August 11, 2003. Giving defendant the benefit of the plea agreement, she sentenced him to twelve years in prison subject to NERA. Thereafter, on December 1, 2003, defendant pled guilty to third-degree bail jumping, N.J.S.A. 2C:29-7. On the record before Judge Baxter, he admitted under oath that although he knew about the scheduled April 25, 2003 sentencing date, he chose to flee to Alabama, and he had no excuse for his failure to appear for sentencing. Pursuant to the terms of this second plea agreement, he was sentenced on December 1, 2003, to four years in prison consecutive to the sexual assault sentence.

Defendant did not appeal from either sentence. Instead, on December 5, 2007, he filed a pro se petition for post-conviction relief (PCR), contending that his trial counsel was ineffective; that his sentence for the sexual assault was disproportionate to that imposed on other, similarly situated defendants; that the sentencing judge did not consider applicable mitigating factors; that he did not realize he could be civilly committed under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, after he finished serving his sentence; that he was unfairly prejudiced by the "mixed indictment" charging weapons offenses in addition to sex offenses; and that his trial counsel should have talked him out of jumping bail. In a formal PCR petition filed by his appointed counsel, defendant also contended that his trial counsel should have presented the court with a report from defendant's therapist, Dr. Karen Bartley, which might have convinced the court that he should not be sentenced to Avenel as a repetitive and compulsive sex offender; that his counsel failed to meet with him or advise him about the possibility of civil commitment or that community supervision for life would be part of his sentence; and that his counsel failed to present mitigating factors at sentencing. He also argued that Judge Baxter should have imposed a concurrent rather than a consecutive sentence on the bail jumping conviction.

In a comprehensive oral opinion issued April 24, 2009, Judge John T. Kelley rejected all of defendant's PCR arguments. Judge Kelley held that defendant's PCR challenge to the consecutive sentence was barred by Rule 3:22-4, because that claim could and should have been raised on direct appeal. Addressing defendant's claims that he should be permitted to withdraw his guilty plea because he was not told about civil commitment or community supervision for life, the judge reasoned that because defendant based those claims solely on the documentary record, he could have raised the claims on direct appeal. R. 3:22-4. He further found that defendant failed to submit legally competent evidence to support his claims that he should not have been sentenced to the specialized sex offender facility at Avenel or that further investigation by his trial counsel would have produced support for additional mitigating factors. Thus, defendant did not present a prima facie case of ineffective assistance of counsel and was not entitled to an evidentiary hearing on his PCR petition. See State v. Preciose, 129 N.J. 451, 462 (1992).

Addressing the issue of civil commitment, the court found that State v. Bellamy, 178 N.J. 127 (2003), had only pipeline retroactivity, and thus would not permit defendant to withdraw his guilty plea because he was not told about the possibility of civil commitment. The judge also found no evidence that defendant would have rejected the plea agreement and instead gone to trial if he had known that he faced possible civil commitment after completing his sentence. The judge further found that defendant was advised that he would be sentenced to community supervision for life, and in any event had produced no proof that this aspect of the sentence would have dissuaded him from accepting the plea agreement. He found defendant's remaining arguments to be equally insubstantial.

II

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

POINT I: THE PCR COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF AS DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

A. Trial Counsel for the First Degree Aggravated Sexual Assault, N.J.S.A. 2C:14-2(a)(1), Charge Provided Ineffective Assistance Because He Failed to Notify Defendant that He Faced a Lifelong Civil Commitment Under the Sexually Violent Predators Act, N.J.S.A. 30:4-27.24 to -27.38.

B. Trial Counsel for the First Degree Aggravated Sexual Assault, N.J.S.A. 2C:14-2(a)(1), Charge Provided Ineffective Assistance Because He Failed to Present Dr. Karen Barley's Psychological Report to the Sentencing Court.

C. Trial Counsel for the First Degree Aggravated Sexual Assault, N.J.S.A. 2C:14-2(a)(1), Charge Provided Ineffective Assistance Because He Failed to Discuss Community Supervision for Life with Defendant.

D. Trial Counsel for the Third Degree Bail Jumping, N.J.S.A. 2C:29-7, Charge Provided Ineffective Assistance Because She Failed to Present Arguments in Favor of a Concurrent Sentence.

POINT II: THE PCR COURT ABUSED ITS DISCRETION WHEN IT APPLIED THE PROCEDURAL BAR OF R. 3:22-4 TO DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

POINT III: THE PCR COURT ABUSED ITS DISCRETION WHEN IT DENIED DEFENDANT'S REQUEST FOR AN EVIDENTIARY HEARING BECAUSE DEFENDANT ESTABLISHED A PRIMA FACIE CASE FOR INEFFECTIVE ASSISTANCE OF COUNSEL.

Having reviewed the record we conclude that these arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons stated in Judge Kelley's oral opinion. We add the following comments.

Defendant contends that he is entitled to withdraw his guilty plea because he was not informed that, as a collateral consequence of his conviction, the State could seek to have him civilly committed under the SVPA. We disagree. In Bellamy, the Court decided that as a matter of "fundamental fairness," before accepting a guilty plea that could later result in civil commitment, a trial court must inform the defendant about the possible collateral consequences of the plea under the SVPA. Bellamy, supra, 178 N.J. at 138. However, the Court determined that in order to avoid serious disruption to the criminal justice system, its holding would be given only pipeline retroactivity. Therefore, the "new rule should apply only to cases pending direct review at the time of the rule's announcement." Id. at 142-43. Defendant did not have a direct appeal pending at the time Bellamy was decided, and he may not raise the issue for the first time on a PCR petition. Ibid. Defendant argues that we should depart from Bellamy's holding. Not only do we find no basis to do so, but "it is plain that as an intermediate appellate court, we lack authority to modify Bellamy's pipeline retroactivity holding." State v. J.K., 407 N.J. Super. 15, 20 (App. Div. 2009).

Defendant's remaining appellate arguments are equally unconvincing. In light of his potential sentencing exposure on the multiple serious charges he faced, defendant obtained a very favorable plea agreement. He was advised in advance that the sentence would include community supervision for life, and his delay in filing the PCR petition strongly suggests that the sentence met his reasonable expectations. See State v. Williams, 342 N.J. Super. 83, 91-92 (App. Div. 2001). He has presented no colorable claim of innocence or any other evidence that he would have rejected the plea agreement if he had more information about the collateral consequences of his guilty plea. See State v. McQuaid, 147 N.J. 464, 498-99 (1997). Similarly, he presented no evidence that, but for any alleged deficiencies in his trial counsel's performance, he would have rejected the plea and insisted on going to trial. See State v. DiFrisco, 137 N.J. 434, 457 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Defendant also failed to provide the PCR court, or this court, with the therapist's report that he claimed would have been helpful to him at sentencing. "Bald assertions" are insufficient to entitle a defendant to an evidentiary hearing on a PCR petition. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Affirmed.

1 Defendant also agreed to forfeit the weapons seized during his arrest.