STATE OF NEW JERSEY v. S.C

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0888-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

S.C.,

Defendant-Appellant.

____________________________________

March 9, 2012

Submitted September 20, 2011 - Decided

Before Judges Reisner and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-02-0255.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Erin Campbell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant S.C. appeals the April 23, 2010 order denying his petition for post-conviction relief (PCR). For the reasons that follow, we reverse and remand for an evidentiary hearing.

The record reveals that on January 17, 2007, a Hudson County grand jury returned an indictment against defendant for two counts of second-degree sexual assault, N.J.S.A. 2C:14-2c(1), third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and child abuse, N.J.S.A. 9:6-1 and 9:6-3. The indictment was based on charges that on September 18, 2006, defendant, then thirty-three years old, had sexual intercourse with his fifteen-year-old cousin against her will. In the same indictment, defendant's wife was charged with fourth-degree hindering an investigation. N.J.S.A. 2C:29-3a(5).

On June 11, 2008, as a result of a plea bargain, defendant pled guilty to second-degree sexual assault, N.J.S.A. 2C:14-2c(1), and a disorderly persons harassment offense stemming from another indictment. In return for the plea, the State agreed to dismiss all other charges pending against defendant as well as the charge against his wife. At the plea hearing, the judge explained to defendant that he would be subject to Megan's Law1 and would be sentenced to parole supervision for life.

During the hearing, defendant asked the judge whether the plea would affect his ability to live with his wife and children.

Defendant: I was led to believe by prior counsel, before I obtained [present trial counsel], if I was to cop to anything or plead guilty to anything with Megan's Law, I would not be able to reside in the household with my wife and children. That's why I refused to plead to anything before.

The Court: That's not necessarily true, sir. It wouldn't be by virtue of Megan's Law that you could have a problem. In that case there is no problem because there is no evidence that it involves your own child. The Division of Youth and Family Services operates separately, independently from the criminal law. If this case involved your child [then] the likelihood is the Division of Youth and Family Services would move in the Family Court to bar you from residing with your child. That can happen. It does happen in some cases because they involved the children of the defendant. But it is not being on Megan's Law isn't going to have that result. That's got nothing to do with it.

The Division of Youth and Family Services acts on their own to do whatever they do. In this case, there's no indication that your daughter would be at risk. So it is not likely the Division of Youth and Family Services would do anything because it does not involve your daughter, but can I guarantee you anything. . . . I can only tell you Megan's Law does not require it.

Defendant: All right.

The Court: That's the direct answer to your question. Megan's Law doesn't require it.

Defendant: That's what I was informed over two years ago. That's why I never copped out.

During the above discussion between defendant and the trial judge, defense counsel remained silent. At the September 26, 2008 sentencing hearing, defense counsel, in arguing for a lesser sentence, stated:

[Defendant] does have an eighteen-month[-old] child he's never personally spent time with. That was one of the concerns in terms of pleading. He was very concerned that the Community Supervision and Megan's [Law] was going to preclude him from residing in the household with his wife and children. I know that's to be determined by others not here today, but the likelihood is remote that would be the case.

Pursuant to the negotiated plea, the trial judge sentenced defendant to a five-year prison term and parole supervision for life and required him to register pursuant to Megan's Law and to pay the requisite fines and costs. The judge then dismissed the remaining counts of both indictments. Subsequently, defendant filed a direct appeal, which he requested be withdrawn in September 2009.

Shortly thereafter, according to defendant, the Parole Board informed him that, as a condition of his parole upon his release from prison, he must reside separately from his wife and child.2 Defendant filed a PCR petition on November 5, 2009. Subsequently, after being assigned counsel, he raised the following specific points:

POINT I: PETITIONER'S ASSERTION OF STATE AND FEDERAL CONSTITUTIONAL ISSUES ARE NOT BARRED BY R. 3:22 ET SEQ.

POINT II: PETITIONER WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT III: PETITIONER'S PLEA OF GUILTY WAS NOT KNOWINGLY, VOLUNTARILY, OR INTELLIGENTLY ENTERED.

POINT IV: PETITIONER WAS THE VICTIM OF PROSECUTORIAL MISCONDUCT.

POINT V: THE CUMULATIVE EFFECT OF COUNSELS' ERRORS DEPRIVED PETITIONER OF A FAIR TRIAL.

POINT VI: PCR COUNSEL INCORPORATES BY REFERENCE ALL ISSUES RAISED BY PETITIONER IN HIS PETITION.

On April 22, 2010, the PCR judge, who also had presided over defendant's guilty plea and sentencing, held a non-evidentiary PCR hearing and denied the petition. Regarding defendant's claim that his second trial counsel had failed to raise a pretrial prosecutorial misconduct allegation, the judge observed that defendant's original trial attorney had raised this misconduct claim, which the trial court subsequently denied. Consequently, the judge held that the second trial attorney did not provide ineffective assistance for declining to revisit an issue that had already been raised and decided.3

In addressing defendant's allegation that he was misinformed by both his counsel and the court about the consequences of his plea, the judge found that Megan's Law contained no provision barring persons subject to it from residing with their minor children. Nonetheless, the judge acknowledged that under the Megan's Law community supervision for life regulation,4 certain convicted sex offenders whose victims were minors were prohibited from having contact or residing with a minor without permission of the offender's parole officer.5 N.J.A.C. 10A:71-6.12e. The judge noted, however, that the regulation contained several exceptions to these restrictions, including when the minor is in the physical presence of his or her parent or legal guardian, N.J.A.C. 10A:71-6.12f(2). Thus, the judge reasoned N.J.A.C. 10A:71-6.12 did not prevent defendant from residing with his own child. Finally, the judge pointed out that defendant had been advised at the plea hearing that another state agency could prevent him from residing with his children and that the judge could not guarantee a different outcome. As a result, the judge determined that defendant had received sufficient information about the potential residential consequences during the plea hearing, found that there had been no ineffective representation, and concluded that defendant had provided no basis to vacate the plea. This appeal followed.

Defendant raises the following contentions on appeal:

POINT I: [S.C.'s] GUILTY PLEA VIOLATED HIS RIGHT TO DUE PROCESS AND MUST BE SET ASIDE AS NOT KNOWING OR VOLUNTARY BECAUSE HE WAS MISINFORMED AS TO ITS PENAL CONSEQUENCES.

POINT II: [S.C.] IS ENTITLED TO RELIEF OR A HEARING ON HIS CLAIM THAT HIS TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL FOR MISINFORMING HIM ABOUT THE PENAL CONSEQUENCES OF HIS PLEA.

The relevant legal principles governing our analysis are well-settled. Post-conviction relief constitutes "New Jersey's analogue to the federal writ of habeas corpus." State v. Preciose, 129 N.J. 451, 459 (1992). A person making a prima facie showing of entitlement to such relief by demonstrating a reasonable likelihood that his or her claim will ultimately succeed on the merits is generally entitled to an evidentiary hearing. Preciose, supra, 129 N.J. at 463. Without such a showing, no evidentiary hearing is required. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). In deciding if defendant has established a prima facie claim, we must "view the facts in the light most favorable to a defendant." Ibid.

We consider a defendant's claim of ineffective assistance of counsel under the standards established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which were adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). In order to prevail on such a claim, a defendant must first show that his attorney's performance was deficient. Id. at 52 (citing Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). Next, a defendant must show that his attorney's deficient performance prejudiced his defense. Ibid. Even if counsel was ineffective, under the second prong prejudice is not presumed and must be proven by the defendant. Id. at 60-61. Counsel's failure to advise a defendant of the serious consequences associated with a guilty plea has been found to constitute ineffective assistance of counsel. State v. Nunez-Valdez, 200 N.J. 129, 143 (2009).

To justify withdrawing a guilty plea premised on ineffective assistance of counsel, a defendant must satisfy a modified Strickland standard.

When a guilty plea is part of the equation, . . . 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. Nunez-Valdez, supra, 200 N.J. at 139 (quoting State v. DiFrisco, 157 N.J. 434, 457 (1994)).]

Moreover, to obtain relief under the second prong "a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. ___, 130 S. Ct. 1473, 1485, 176 L. Ed. 2d 284, 297 (2010).

In this appeal, defendant contends, as he did at the PCR hearing, that his plea was not truly voluntary because he was misinformed by both counsel and the court as to the consequences of his plea. Our Supreme Court has emphasized the importance of defendants fully understanding the consequences of their pleas. State v. Gaitan, ___ N.J. ___, ___ (2012) (slip op. at 39-40); State v. Bellamy, 178 N.J. 127, 142 (2003). Indeed, a court may not accept a guilty plea unless it is made "voluntarily, knowingly and intelligently." State v. Howard, 110 N.J. 113, 122 (1989). "Clarity as to the direct and penal consequences of a defendant's guilty plea promotes the binding resolution of charges because it serves to ensure that a defendant's 'expectations [are] reasonably grounded in the terms of the plea bargain.'" State v. Johnson, 182 N.J. 232, 237 (2005) (quoting State v. Marzolf, 79 N.J. 167, 183 (1979)).

"Defendant has the right to receive correct legal advice from his attorney in matters material to him in deciding to accept or reject the State's plea offer." State v. Agathis, ___ N.J. Super. ___, ___(App. Div. 2012) (slip op. at 3). Moreover, we have observed that "a guilty plea entered without sufficient understanding of the penal consequences is ordinarily invalid. Even misinformation about a collateral consequence may vitiate a guilty plea if the consequence is a material element of the plea." State v. Jamgochian, 363 N.J. Super. 220, 225 (App. Div. 2003) (citations omitted). See also State v. Och, 371 N.J. Super. 274, 285-86 (App. Div.), certif. denied, 182 N.J. 150 (2004) (defendant misinformed of the consequences of pleading, which included forfeiture of public office); State v. Garcia, 320 N.J. Super. 332, 339 (App. Div. 1999) (defendant misinformed of deportation consequences).

Defendant claims that he was misinformed at the plea hearing when he was told by the court and his attorney that Megan's Law would not prevent him from being able to live with his wife and child after being released. Under Megan's Law, a person convicted of certain enumerated crimes, including sexual assault, is subject to parole supervision for life, formerly community supervision. N.J.S.A. 2C:43-6.4. Where the victim was a minor, the "sweeping restrictions" of community and parole supervision include having no contact with minors and not being able to reside with any minor without the prior approval of the parole officer. G.H., supra, 401 N.J. Super. at 404. Specifically, a convicted sex offender may have no contact with a minor and may not reside with a minor without the permission of the district parole supervisor. N.J.A.C. 10A:71-6.12e. However, until amended effective December 2010, N.J.A.C. 10A:71-6.12f provided exceptions to this contact and residency restriction, including where the child was in the presence of his or her parent or guardian. In 2010, the regulation was amended to "clarify" that the offender may not be the parent or legal guardian. 42 N.J.R. 1296(a)(July 6, 2010). The same amendment also eliminated completely all exceptions to the requirement that a covered offender must obtain permission of his parole officer before residing with a minor. Ibid.

According to defendant, the Parole Board interpreted the parole supervision for life regulation to prevent him from living with his child. Thus, the judge's interpretation of the exception to the residency prohibition appears to differ from the interpretation, or at least the practice of the Parole Board. Defendant points out that prior to the plea at issue here, in State v. J.J., 397 N.J. Super. 91 (App. Div. 2007), we had recognized the need to inform a defendant of the residency restriction on living with a minor. In J.J., the defendant sought to withdraw his guilty plea to a sexual offense because he was not told that "the community supervision provision of his plea would prevent him from living with his new wife and her child." Id. at 99. While the defendant in J.J. had completed a form acknowledging the community supervision for life requirement, we were not satisfied the form provided sufficient notification about the restriction on living with his wife and her child as "the record does not reveal that he appreciated or was informed of the risk by the judge or by his attorney at or about the time he agreed to plead guilty." Id. at 100. See also G.H., supra, 401 N.J. Super. at 401. We agree with defendant's contention that, if his representations concerning the parole residency restrictions prove accurate, he should have been informed that persons convicted of covered sexual offenses, including sexual assault, were prohibited from residing with their children at the time of defendant's plea, rather than inaccurately told that no such requirement existed under Megan's Law.6

Based on the record presented to us, viewed in the light most favorable to defendant, we conclude that he established a prime facie case of ineffective assistance of counsel. Accordingly, we remand this matter to the trial court for a full evidentiary hearing on both the first and second Strickland prongs. The judge should then address the legal issues in light of the full evidentiary record. See State v. Maldon, 422 N.J. Super. 475, 482 (App. Div. 2011).

Remanded. We do not retain jurisdiction.

1 In 1994, the Legislature enacted a package of bills pertaining to convicted sex offenders, including the Registration Act, L. 1994, c. 133 (codified at N.J.S.A. 2C:7-1 to -5), the Community Notification Act, L. 1994, c. 128 (codified at N.J.S.A. 2C:7-6 to -11), and the Community Supervision for Life Act, L. 1994, c. 130, 2 (codified at N.J.S.A. 2C:43-6.4). All of the bills comprising the package are referred to collectively as Megan's Law. See Doe v. Poritz, 142 N.J. 1, 12 (1995). See also G.H. v. Twp. of Galloway, 401 N.J. Super. 392, 401 (App. Div. 2008), aff'd 199 N.J. 135 (2009).

2 This has been represented by appellate defense counsel in her brief. Appellate defense counsel also stated that at the time of the filing of defendant's appellate brief (April 2011), defendant was still prohibited by the Parole Board from living with his children. We have been supplied with no documentation from the Parole Board or certification explaining this residency restriction. However, the State has not contested defense counsel's representations about this restriction.

3 Defendant has not appealed this part of the judge's decision.

4 The court erroneously referenced N.J.A.C. 10A:71-6.11, the community supervision for life regulation, which applies to offenses committed prior to January 14, 2004, when the term "community supervision for life" was changed to "parole supervision for life." N.J.S.A. 2C:43-6.4. N.J.A.C. 10A:71-6.12 applies to offenses committed on or after January 14, 2004 and covers parole supervision for life. As the referenced language of both are identical, we use the applicable regulation.

5 Now district parole supervisor. 42 N.J.R. 1296(a)(July 6, 2010).

6 We are not suggesting that defendant's trial counsel should have anticipated in 2008 that the parole regulation would be made more restrictive in 2010. Rather, if defendant's representations are accurate, he was misinformed about the 2008 regulations.