STATE OF NEW JERSEY v. DELSEAN PINCHOM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0851-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DELSEAN PINCHOM,

Defendant-Appellant.

_______________________________

May 5, 2011

Submitted January 20, 2011 - Decided

Before Judges Lihotz and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 02-10-1360, 02-05-0703 and Accusation No. 03-10-1097A.

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

Paula T. Dow, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, on the brief).

PER CURIAM

Defendant appeals from the March 16, 2009 order denying his petition for post-conviction relief (PCR). Defendant asserted ineffective assistance of counsel and sought to vacate his guilty pleas to three counts of sexual assault. Judge Garry S. Rothstadt reviewed defendant's assertion that counsel failed to properly advise him of the scope of the collateral consequences of his guilty pleas, including possible civil commitment in the event he was found subject to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and ordered a plenary hearing. After considering testimony from defendant and former counsel, Judge Rothstadt denied the petition for PCR. Judge Rothstadt concluded defendant failed the show (1) he did not understand the terms of the plea agreement, which included a separate set of questions directed to guilty pleas to sexual offenses covered by the SVPA, or (2) counsel was deficient in neglecting to discuss the possible civil commitment consequences of his plea.

On appeal, defendant argues:

POINT I

BECAUSE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL, HIS PETITION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED.

POINT II

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF POST-CONVICTION COUNSEL.

We affirm.

These facts are not in dispute. Defendant's guilty pleas were entered pursuant to a plea agreement on October 29, 2003. Defendant faced charges on two Passaic County indictments and a separate accusation, charging multiple offenses including second-degree sexual assault, aggravated sexual assault and weapons offenses.

The plea agreement provided defendant would plead guilty to second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1) and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(4) (counts one and two of Indictment No. 02-05-0703); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one of Indictment No. 02-10-1360); and first-degree aggravated sexual assault (as charged in Accusation No. 03-10-1097A). The State agreed to dismiss the remaining seven counts contained in the two indictments.

Facing a possibility of sixty years incarceration on the subject charges, the plea agreement detailed recommended sentences aggregating to eighteen years, which in fact were imposed by the trial court on February 27, 2004, as follows: (1) for the two charges in Indictment No. 02-05-0703, a flat term of seven years on count one, to be served concurrently to the sentence on Accusation No. 03-10-1097A and fifteen years incarceration subject to the eighty-five percent period of parole ineligibility of the No Early Release Act (NERA) for count two, to run concurrently to the sentence in count one; (2) for the charges in Indictment No. 02-10-1360, the court imposed a term of seven years, to be served concurrently with Indictment No. 02-05-0703 and Accusation No. 03-10-1097A subject to NERA, N.J.S.A. 2C:43-7.2; and (3) for the charge in Accusation No. 03-10-1097A, a term of eighteen years imprisonment subject to NERA, the latter portion of the sentence to be served in the care of Adult Diagnostic Treatment Center at Avenel (ADTC), N.J.S.A. 2C:47-3(h)(2).

In addition to the standard plea agreement questions, the proposed plea agreement included two written supplemental questionnaires that examined defendant's understanding of the consequences implicated by guilty pleas to sexual assault charges. Before signing the plea agreement and incorporated supplements, defendant met with trial counsel, who discussed and explained the contents of the agreement and these supplements.

The first series of questions discussed NERA and advised of the mandatory five-year period of parole supervision. Defendant responded affirmatively to each question, including that a violation of parole could result in defendant s return to prison to serve the remainder of the parole period even if his sentence had been served. Therefore, he could serve a period longer than his base term. See State v. Freudenberger, 358 N.J. Super. 162, 169 (App. Div. 2003).

The second supplemental questionnaire addressed the consequences of pleading guilty to sexual offenses. These inquiries probed defendant's understanding of the requirement to submit to a psychological examination to determine whether his conduct is a "pattern of repetitive and compulsive behavior" which would benefit from sex offender treatment. Defendant completed these questions, affirmatively acknowledging his understanding that he could be ordered to serve the last seven years of his sentence at the ADTC and would be subject to special parole consequences based on an evaluation of his progress and that treatment may exceed the time spent in state prison. Finally, question 8 asked:

Do you understand that if you are confined at the [ADTC] . . . for commission of a sexually violent offense, you may upon completion of your term of confinement be involuntarily committed to another facility if the court finds, after a hearing, that you are a sexually violent predator in need of involuntary civil commitment?

Defendant also answered "yes" to this question.

Following a two hour conference with his attorney, the court accepted defendant's guilty pleas. On February 27, 2004, the court imposed the sentences consistent with the recommendations in the plea agreement.

Defendant appealed on June 13, 2007, which we dismissed as untimely.1 Defendant then filed his first petition for PCR.

Defendant sought to vacate his guilty pleas, asserting counsel failed to file a timely appeal and to properly advise him of the special NERA parole consequences and the possibility of involuntary civil commitment after entering a guilty plea. The court granted an evidentiary hearing.

After receiving the testimony of defendant and his former counsel regarding what transpired during their two hour conference prior to the plea hearing, the trial judge credited counsel's version of events and found defendant's contentions inconsistent and not credible. Judge Rothstadt reviewed defendant's assertions, finding:

During those discussions [counsel] reviewed both of the supplements with [] defendant. In those discussions, [she] advised [] defendant that, pursuant to the (NERA) first supplement, when he was paroled, he would be placed on a five[-]year strict parole. [Counsel] advised him specifically that if he violated, he would be returned to prison for five years, even if he already finished his term. As a result, [] defendant knew that he could serve more time in prison than the period to which he was sentenced.

[Counsel] also explained to [] defendant that he could serve more time in custody as a result of his pleading guilty to the subject sexual offenses in accordance with the terms of the second (SVPA) supplement to the plea form. Specifically, [she] told [] defendant that when [he] was completing his term at ADTC, he would be evaluated and that if he were found to be a danger, they would have him civilly committed until it was decided that he was not a danger anymore. [Counsel] never told the defendant that he could not or would not be subject to that possibility. [She] was sure that she told [] defendant that he could be held until he was no longer a danger to society. She did not recall, however, if she used the words "for the rest of your life."

The PCR court determined defendant had been properly informed of and adequately understood the consequences of his guilty plea with respect to the consequences imposed by NERA and SVPA, including the possibility that he could be held beyond his sentence. Therefore, the PCR petition was denied.

When analyzing whether counsel for a convicted defendant provided ineffective assistance during trial, the United States Supreme Court has held "the defendant must show that counsel s representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a deprivation of that right, a convicted defendant must satisfy the two-part test enunciated in Strickland by demonstrating that: (1) counsel's performance was deficient, and (2) the deficient performance actually prejudiced the accused's defense. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The Strickland test has been adopted in New Jersey. State v. Fritz, 105 N.J. 42, 58 (1987). See also State v. Allegro, 193 N.J. 352, 366 (2008); State v. Loftin, 191 N.J. 172, 197-98 (2007). New Jersey has adopted the Strickland test concluding that the State Constitution entitles a criminal defendant "to the assistance of reasonably competent counsel[.]" Fritz, supra, 105 N.J. at 58.

In assessing the first prong, "[j]udicial scrutiny of counsel s performance must be highly deferential" and "[c]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 689-90, 104 S. Ct. at 2065-66, 80 L. Ed. 2d at 694-95. To successfully present a post-conviction challenge warranting reversal of a conviction, defendant must point to specific errors that rise above the level of general trial strategy. United States v. Cronic, 466 U.S. 648, 659 n.26, 104 S. Ct. 2039, 2047 n.26, 80 L. Ed. 657, 668 n.26 (1984); Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. at 694. "[P]urely speculative deficiencies in representation are insufficient to justify reversal." Fritz, supra, 105 N.J. at 64.

Proofs supporting the second prong of the Strickland test require that "prejudice must be proved; it is not presumed." Fritz, supra, 105 N.J. at 52 (citing Strickland, supra, 466 U.S. at 692-93, 104 S. Ct. at 2067, 80 L. Ed.2d 696-97). In order to prove this, defendant must show the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). See also State v. Gaither, 396 N.J. Super. 508, 513 (App. Div. 2007), certif. denied, 194 N.J. 444 (2008); State v. Rountree, 388 N.J. Super. 190, 207 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007).

Applying these standards to the circumstance when a defendant seeks to vacate a guilty plea as part of an ineffective assistance of counsel claim, "a defendant must show that (i) counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases'; and (ii) 'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial.'" State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009) (quoting State v. DiFrisco, 137 N.J. 434, 457 (1994)). Therefore, before withdrawal of a guilty plea is permitted, a defendant must establish that the lack of knowledge or mistaken understanding of the consequences of the plea was material to the decision to plead guilty. State v. Johnson, 182 N.J. 232, 241-42 (2005). A guilty plea will not be vacated if knowledge and proper understanding of the consequences would have nevertheless resulted in defendant s decision to plead guilty. State v. McQuaid, 147 N.J. 464, 495 (1997).

Relying on State v. Bellamy, 178 N.J. 127 (2003), defendant argues he should be permitted to withdraw his plea because counsel failed to explain that the SVPA might result in his civil commitment for life. Defendant asserts that had he been so informed, "he would not have pled guilty." We are not persuaded.

In Bellamy, supra, the defendant pled guilty to fourth-degree criminal sexual contact. Id. at 131. Defendant sought to retract his plea because the court did not ascertain that he understood the potential commitment consequences of the plea under the SVPA. Id. at 133. The Court held:

[W]hen the consequences 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 under the [SVPA] is future confinement for an indefinite period deprives that defendant of information needed to make a knowing and voluntary plea.

[178 N.J. at 139.]

"If the trial court is satisfied that defendant did not understand the consequences of his plea, it shall permit defendant to withdraw his plea 'in the interest of justice to correct a manifest injustice,' R. 3:21-1, and shall reinstate the charges." Ibid.2

Unlike Bellamy, defendant was informed of the possible consequences of his plea, including special parole consequences and possible civil commitment until defendant was no longer deemed a danger to society. The trial court specifically found counsel thoroughly reviewed all plea terms. Additionally, during the plea allocution, "defendant confirmed to the court that he understood all aspects of his plea including all of the consequences he was facing as a result of pleading guilty to the charges listed in the plea agreement form." He showed no confusion, hesitation or disagreement. In his PCR hearing testimony, defendant conceded he fully understood other aspects of the plea agreement such as the fact he would be subject to community supervision for life.

Additionally, the court found defendant's assertion that his alleged misunderstanding was material to his decision to plead guilty not to be credible. As noted by Judge Rothstadt, the evidence against defendant was overwhelming and he faced up to sixty years in prison. Although he and counsel had commenced preparation for trial on the two indictments when the accusation surfaced, defendant actively sought a plea arrangement.

Defendant's presentation throughout the conference with counsel, during the plea allocution and years afterward, as he did not seek an appeal, all reflect he entered his pleas with full knowledge of the nature of the charges and complete understanding of the consequences. When judged against the standards governing ineffective assistance of counsel, we reject defendant's suggestion that counsel's performance was deficient. Accordingly, we find no basis to reverse Judge Rothstadt's order and affirm the denial of PCR substantially for the reasons stated in his written opinion. R. 2:11-3(e)(2).

Defendant also argues PCR counsel was ineffective because she neglected to challenge the trial court s failure to advise defendant of the special parole provisions of NERA and possible SVPA consequences of his guilty plea. We find this argument unavailing. R. 2:11-3(e)(2). "[I]f defendant's arguments . . . lack merit, counsel cannot be deemed ineffective for failing to raise them" because there is no prejudice to defendant. State v. Roper, 362 N.J. Super. 248, 252 (App. Div. 2003). "The failure to raise unsuccessful legal arguments does not constitute ineffective assistance of counsel." State v. Worlock, 117 N.J. 596, 625 (1990).

1 Defendant admitted he never instructed trial counsel to file an appeal after entry of his pleas or following sentencing.

2 Bellamy was decided on December 11, 2003, after defendant's guilty plea but before his sentencing. The Court's holding was given limited retroactivity, applying to cases pending direct review at the time the rule was announced. Bellamy, supra, 178 N.J. at 142.