STATE OF NEW JERSEY v. WILLIAM SCHUTTE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-05838-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM SCHUTTE,

Defendant-Appellant.

__________________________________

April 22, 2014

Submitted December 18, 2013 - Decided

Before Judges Waugh and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-08-0812.

Joseph E. Krakora, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant William Schutte appeals from the order dismissing his petition for post-conviction relief (PCR) without an evidentiary hearing. In his petition, defendant claimed that when he was sentenced following his guilty plea to sexual assault, the trial court improperly sentenced him to parole supervision for life rather than to community supervision for life. Defendant also claimed that he misunderstood the significance of community supervision for life. The judgment of conviction states explicitly that defendant is sentenced to community supervision for life, and the record of the plea hearing belies defendant's contention that he did not understand the significance of community supervision for life. Accordingly, we affirm.

A Passaic County grand jury charged defendant in a three-count indictment with second-degree sexual assault of a child under the age of thirteen, third-degree endangering the welfare of a child, and fourth-degree lewdness. The charges stemmed from defendant masturbating on a public bus. Defendant subsequently pled guilty to second-degree sexual assault. In exchange, the State agreed to dismiss the remaining two counts and recommend a custodial term of six years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Defendant would also be subject to the registration requirements of Megan's Law, N.J.S.A. 2C:7-2, and to community supervision for life, N.J.S.A. 2C:43-6.4(d).

During the plea hearing, the court reviewed with defendant the consequences of the plea, including the registration requirements of Megan's Law and that defendant would be placed under community supervision for life. Specifically, the court stated: "[I]f you're pleading guilty to this crime, which is sexual assault, I want you to know that you're going to be under community supervision for life. Do you understand that?" The defendant replied that he understood. Defendant also acknowledged that if he violated the special sentence of community supervision for life, he could be charged with a fourth degree crime.

Defendant entered his plea on November 10, 2003. The court sentenced him on March 9, 2004. After defendant pled guilty, but before he was sentenced, the Legislature amended N.J.S.A. 2C:43-6.4 and, among other things, changed the statute from "Special Sentence of Community Supervision for Life" to "Special Sentence of Parole Supervision for Life." The amendment became effective January 14, 2004, and applied to crimes committed on or after that date. L. 203, c. 267; N.J.A.C. 10A:71-6.12(a); Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181, 186 (App. Div. 2004), appeal dismissed, 187 N.J. 487 (2006). Nevertheless, the amendment was apparently the cause of some confusion at defendant's sentencing hearing.

At sentencing, the court imposed a five-year custodial term subject to NERA and the registration requirements of Megan's Law. The court also imposed appropriate penalties and assessments. During the sentencing hearing, when discussing what would happen to defendant upon his release from prison, the court stated: "[a]nd then once you're released . . . it's really not community supervision for life anymore. I think there's a new law. It's effective. It's really parole for life. . . ."

Defendant responded that he "knew that." The court repeated that defendant would always be on parole and that if he violated parole he could be returned to prison. Defendant responded, "I know that." After imposing the sentence, the court continued to inform defendant of the consequences of Megan's Law. The following colloquy occurred:

COURT: Now, there's community supervision for life. You're going to be on what's - what would be typically referred to as community supervision for life, but my understanding is that this has been changed to parole for life. A recent law says that community supervision for life was - was the intent and to the Legislature that would be parole for life. So, you understand that?

DEFENDANT: Yes, I do.

COURT: And this says you will be supervised for least 15 years as if on parole. They've changed that now. That's - there's 15 years of par - as though you were on parole - or you would be on parole, and subject to the condition - appropriate conditions to protect the public and force the rehabilitation. And that could include - I think I told you this at the plea - your right to live, work or travel because if another state doesn't have the same or similar laws that - that we have, you can't go to that other state. Do you understand that?

DEFENDANT: Yes, I do.

Near the end of the proceeding, the court explained the sentencing consequences yet again:

COURT: And essentially what we're doing here is we're - we're sending you to the Adult Diagnostic and Treatment Center at Avenel for 5 years and you have to serve 5 years there with the hope that during that 5 years you'll get help for your alcohol problem and your . . . repetitive behavior regarding these sex crimes.

If at the end of those 5 years, the authorities at Avenel are satisfied, they'll release you. When you are released, then all these other things apply: community parole for life; the registration - right? - the Internet posting; the notification requirements that I went over with you.

However, at the end of those 5 years, if the staff at the Avenel facility feel that you have not successfully completed your treatment up to that point, they can then have you civilly committed and you'll stay there until they're satisfied you should be released back into the community. Do you understand that?

DEFENDANT: Yes, I do.

Despite the confusion over terminology caused by the amendment to N.J.S.A. 2C:43-6.4, the judgment of conviction entered on March 9, 2004, provided that "[t]he defendant is hereby sentenced to community supervision for life." Defendant did not file a direct appeal. He claims to have prepared a PCR petition on March 9, 2004, the day he was sentenced. He filed the petition on September 1, 2010.

In his petition, defendant alleged: "I was not explain[ed] what was C.S.L. I was misinformed and uninform[ed]." Defendant, through counsel, submitted a letter brief in support of the PCR petition. In the letter brief, defendant explained that he was "pursuing relief under the theory of ineffective assistance of counsel in that counsel did not properly inform him of the collateral and penal consequences of a guilty plea and the effect Community Supervision for Life would have on [him]." Defendant further explained, "[a]lthough the plea form and the plea and sentencing transcript indicate community supervision for life was fully explained to the [d]efendant, it is his position, based on his certification, that he believed he was to receive community service for life."

During oral argument on defendant's petition, his attorney argued that the court should conduct an evidentiary hearing. The attorney acknowledged that when defendant entered his guilty plea, the court carefully questioned him to assure that he understood the consequences of community supervision for life. The attorney further acknowledged that the plea forms defendant signed when he pled guilty explained the consequences of community supervision for life. Notwithstanding his acknowledgment of those explanations, the attorney asserted that defendant "really understood community supervision for life to be community service for life." For that reason, defendant asked the court "to take this as truthful and to grant . . . an evidentiary hearing to allow the Public Defender to come in who represented [defendant] and indicate . . . what exactly took place and what transpired behind the scenes."

The court denied defendant's petition in an oral opinion it delivered on January 27, 2012. The court found that defendant had failed to establish a prima facie claim in support of his petition.

The court explained:

[I]t is clear from the record that the defendant at the time of his plea hearing and at the time of his sentencing, that he did understand the consequences of the imposition of Community Supervision for Life. On the record he consistently and repeatedly acknowledged his understanding that he would be sentenced to Community Supervision for Life and what it would entail. Additionally, he signed the plea forms wherein he acknowledged by his answer yes, that he understood that if he was pleading guilty to the crime of sexual assault, that the Court in addition to any other sentence would impose a special sentence of Community Supervision for Life.

Although it was gone over with him by his attorney and by the Court on the record, the phrase Community Supervision for Life or subsequently Parole for Life is self-explanatory. There is no hidden meaning in it in which the defendant might have a misunderstanding.

In this appeal, defendant argues:

POINT ONE

THE DEFENDANT MISUNDERSTOOD THE PENAL CONSEQUENCES UNDER MEGAN'S LAW WHERE THE TRIAL COURT INCORRECTLY DETERMINED THAT THE PSL COMPONENT AS OPPOSED TO THE CSL COMPONENT APPLIED TO HIS SENTENCE.

POINT TWO

THE DEFENDANT'S TRIAL ATTORNEY WAS CONSTITUTIONALLY INEFFECTIVE WHERE HIS GROSS MISADVICE AS TO THE APPLICABILITY OF THE PSL COMPONENT OF MEGAN'S LAW TO HIS SENTENCE PREVENTED THE DEFENDANT FROM FAIRLY EVALUATING THE PLEA OFFER.

POINT THREE

THE PCR COURT ERRED BECAUSE IT DID NOT CONDUCT AN EVIDENTIARY HEARING TO DETERMINE WHETHER THE ADVICE THE DEFENDANT RECEIVED FROM HIS TRIAL ATTORNEY WITH RESPECT TO THE APPLICABILITY OF THE PSL COMPONENT OF MEGAN'S LAW TO HIS SENTENCE PREVENTED HIM FROM FAIRLY EVALUATING THE PLEA OFFER.

The Sixth Amendment guarantees to persons accused of crimes the right to effective assistance of legal counsel in their defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). To establish a claim that counsel was not effective, a convicted defendant must satisfy the two-part test enunciated in Strickland: first, that counsel's performance was deficient; second, that the deficient performance actually prejudiced the accused's defense. Ibid.; see also State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland two-part test in New Jersey). The defective performance is prejudicial if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Strickland that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" State v. DiFrisco, 137 N.J. 434, 457 (1994) (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Under the second prong of Strickland, defendant must establish "'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.'" Ibid. (alteration in original) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

The court hearing a PCR petition may, in its discretion, conduct an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992). "[T]rial courts ordinarily should grant evidentiary hearings to resolve ineffective-assistance-of-counsel claims if a defendant has presented a prima facie claim in support of post-conviction relief." Ibid. To establish a prima facie claim, however, a defendant must do more than make bald assertions that he was denied effective assistance of counsel; he must allege specific facts sufficient to demonstrate counsel's alleged substandard performance. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999).

Here, defendant's claims amount to nothing more than conclusory assertions that his counsel was ineffective. We begin by noting that when defendant entered his plea, there was no confusion about whether defendant's sentence would include community supervision for life or parole supervision for life. Defendant pled guilty to sexual assault on November 10, 2003. At that time, N.J.S.A. 2C:43-6.4(a) required that "a court imposing sentence on a person . . . convicted of . . . sexual assault . . . include . . . a special sentence of community supervision for life." As we have explained, the statutory change from community supervision for life to parole supervision for life came about when the statute was amended by L. 2003, c. 267, effective January 14, 2004. Thus, there could have been no confusion about the statutory amendment or its application when defendant pled guilty in November 2003.

In Point One of his brief, defendant claims he "misunderstood the penal consequences under Megan's Law where the trial court incorrectly determined that the PSL component as opposed to the CSL component applied to his sentence." His argument is difficult to comprehend. Defendant was sentenced to community supervision for life, as evidenced by the judgment of conviction. Thus, if defendant is suggesting that he was sentenced to parole supervision for life, he is simply mistaken.

If defendant is suggesting that he was confused by the court's references at sentencing to parole supervision for life, we fail to discern how events that occurred at sentencing affected his decision to plead guilty four months earlier. As we have previously explained, the statute had not been amended when defendant pled guilty. For that reason, neither the court nor defendant could have been confused about the statutory amendment when defendant pled guilty, a self-evident fact defendant fails to address in his argument. And even if defendant had entered his plea based on a belief that he would be sentenced to community supervision for life, but was subsequently sentenced to parole supervision for life, he would be entitled to a remand to correct the judgment of conviction. Here, however, the judgment of conviction imposes community supervision for life, not parole supervision for life.

Defendant argues in Point Two of his brief that he thought community supervision for life meant community service for life. The record belies defendant's assertion, and he makes no attempt to explain how he could have misunderstood either the plea forms that he signed or the court's explanation about community supervision for life. Defendant's PCR counsel acknowledged at oral argument the absence of any confusion when defendant entered his plea. Counsel conceded that defendant "fully executed" the plea form and the additional questions concerning community supervision for life, "indicating that [defendant] understood what . . . community supervision for life was and the other additional questions that go along with Megan's Law." Further, counsel acknowledged that the court "questioned [defendant] extensively." Defendant's failure to address the plea forms and plea colloquy is fatal to his argument that he mistakenly believed he was being sentenced to community service for life.

Defendant also suggests that his confusion is based on something his attorney said to him, or omitted to tell him. Defendant has not set forth in a certification or affidavit, however, the substance of his attorney's statements.

For all of those reasons, defendant's conclusory assertions do not establish a prima facie case that his plea counsel was ineffective, or that but for counsel's deficient performance, he would not have entered the plea. The court correctly denied his PCR petition without an evidentiary hearing.