STATE OF NEW JERSEY v. MARK PEPE

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SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK PEPE,

Defendant-Appellant.

December 1, 2016

 

Submitted November 2, 2016 Decided

Before Judges Carroll and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 05-11-01552 and Accusation No. 07-08-01183.

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

Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Supervising Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Mark Pepe is a convicted sex offender. He appeals from a July 14, 2015 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. In his petition, defendant sought to be released from a judgment of civil commitment that was imposed pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm, substantially for the reasons stated by Judge James M. DeMarzo in his comprehensive written opinion denying defendant's requested relief.

Defendant was charged in Morris County Indictment No. 05-11-01552 with second-degree sexual assault, N.J.S.A. 2C:14-2b (count one); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two). He was subsequently charged in Morris County Accusation No. 07-08-01183 with second-degree attempt to lure a minor, N.J.S.A. 2C:13-6 (count one); second-degree attempted sexual penetration of a minor, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2c(4) (count two); fourth-degree attempt to commit sexual contact, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-3b (count three); third-degree attempted sexual contact that would impair or debauch the morals of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4a (count four); third-degree attempt to distribute obscene material to a minor, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:34-3b(1) (count five); third-degree attempt to show obscene material to a minor, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:34-3b(2) (count six); and fourth-degree possession of child pornography, N.J.S.A. 2C:24-4(b)5(b) (count seven).

On August 15, 2007, defendant pled guilty to count two of Indictment No. 05-11-01552, and to counts one and seven of Accusation Number 07-08-01183. The factual background underlying defendant's guilty pleas is set forth in Judge DeMarzo's opinion and need not be repeated here. In return for defendant's plea, the State agreed to recommend a maximum aggregate five-year custodial sentence. The plea agreement further provided that defendant would be subject to Megan's Law, N.J.S.A. 2C:7-1 to -19, parole supervision for life, N.J.S.A. 2C:43-6.4, and an evaluation at the Adult Diagnostic and Treatment Center (ADTC) at Avenel. On the supplemental plea forms executed by defendant, he acknowledged that, if he was convicted of certain predicate sexual offenses or confined to the ADTC, he was subject to civil commitment upon completion of his term of confinement. However, it is undisputed that, at the plea hearing, defense counsel, the prosecutor, and the trial judge agreed that the portion of the plea forms referring to civil commitment did not apply to the offenses to which defendant was pleading guilty.

On May 15, 2008, defendant was sentenced to an aggregate four-year term of incarceration, to be served at the ADTC. He was also ordered to comply with the requirements of Megan's Law, and placed on parole supervision for life. Defendant did not file a direct appeal from his conviction and sentence.

In August 2010, the State filed a petition seeking defendant's civil commitment as a sexually violent predator pursuant to the SVPA. On August 5, 2010, Judge Lorraine Pullen entered an order temporarily committing defendant, and scheduled a date for the final hearing. Following a hearing in Essex County, Judge James F. Mulvihill found that defendant was a sexually violent predator in need of civil commitment, and entered judgment accordingly on February 24, 2011.

On December 15, 2014, defendant filed a pro se PCR petition challenging his civil commitment on the basis that it was not part of his sentence. His assigned PCR counsel filed an amended petition and brief elaborating on defendant's position that trial counsel was ineffective because she did not advise him of the potential for civil commitment as a consequence of his plea. Defendant argued that fundamental fairness dictated that he be released from civil commitment and that the State be precluded from taking further action against him on the original charges or under the SVPA.

In a thorough written opinion, Judge DeMarzo considered defendant's contentions and denied his petition. The judge noted that a first petition for PCR must be filed within five years of the date of the judgment of conviction. R. 3:22-12(a). A late filing may be considered if the petition itself shows excusable neglect for the late filing and that a fundamental injustice will result if defendant's claims are not considered on their merits. State v. Brewster, 429 N.J. Super. 387, 400 (App. Div. 2013). The judge determined that it would be appropriate to relax the time-bar on the basis that defendant could not have known of the risk of civil commitment until the State moved to have him committed.

Turning to the merits, Judge DeMarzo concluded that defendant failed to satisfy the second part of the two-prong test of Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), which requires a showing that trial counsel's performance was deficient and that, but for the deficient performance, the result would have been different. Citing State v. Bellamy, 178 N.J. 127 (2003), the judge found that it was "clear from the plea transcript that [d]efendant's trial counsel was deficient in advising him that he would not be subject to civil commitment." Regarding Strickland's second prong, the judge explained

However, while trial counsel was deficient, [d]efendant has failed to make a claim for ineffective assistance of counsel. The second prong . . . requires asserting that [] defendant was prejudiced by the deficient performance. To meet this prong, [d]efendant is required to prove a reasonable probability exists that, had he been informed of the consequences under the SVPA, he would not have entered a guilty plea and would have chosen to proceed to trial. In [] defendant's amended petition, he candidly admits that he "cannot say with certainty that [he] would have declined to enter a guilty plea and that [he] would have proceeded to trial if [he] had been told [he] would face civil commitment[.]" While defendant's honesty is admirable, due to this admission, defendant cannot demonstrate that he was prejudiced by his trial counsel's failure to inform the defendant of the consequences under the SVPA. Therefore, he is not entitled to relief based on the ineffective assistance of counsel.

Again drawing guidance from Bellamy, supra, 178 N.J. at 140, Judge DeMarzo concluded that, even if defendant was entitled to PCR, the appropriate remedy would be to vacate his guilty plea and reinstate the original charges. The judge noted that "[d]efendant does not want to vacate his guilty plea," but instead he was requesting that he be released from civil commitment, a remedy that was unavailable on PCR.

Defendant now appeals from the denial of his petition and presents the following arguments

POINT I

THE PCR COURT ERRED IN DENYING [DEFENDANT'S] PETITION FOR [PCR] DESPITE THE EVIDENCE THAT HIS GUILTY PLEA WAS INVOLUNTARY.

POINT II

THE PCR COURT ERRED IN DENYING [DEFENDANT'S] PETITION FOR [PCR] WITHOUT AN EVIDENTIARY HEARING.

We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge DeMarzo in his well-reasoned written opinion. We add only the following limited comments.

To prove ineffective assistance of counsel, a defendant must satisfy the Stricklandtwo-part test by demonstrating "counsel's performance was deficient"; that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "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 687, 694, 104 S. Ct.at 2064, 2068, 80 L. Ed. 2d at 693, 698 (1984); accord, State v. Fritz, 105 N.J.42, 58 (1987).

To set aside a guilty plea based on ineffective assistance of counsel, defendant must demonstrate under the first prong of Stricklandthat "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" Statev. 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.'" DiFrisco, supra, 137 N.J.at 457 (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)) (alteration in original).

Whether an evidentiary hearing on an ineffective assistance of counsel petition is necessary is a matter within the court's discretion. R.3:22-10; seeState v. Preciose, 129 N.J.451, 462 (1992). Rule3:22-10(b) states, in pertinent part

A defendant shall be entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR], a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.

Here, the State concedes that, at the time of the plea, defendant was told that the possibility of civil commitment did not apply to him. We recognize that the potential of civil commitment may be of such great consequence that the failure to disclose it to a defendant may justify allowing the defendant to withdraw his plea. Bellamy, supra. However, defendant does not seek to withdraw his guilty plea and stand trial on the panoply of original charges contained in the indictment and accusation. Rather, he renews his argument that "fundamental fairness requires the unique remedy" that he be "released from civil commitment and [] that further prosecution under the criminal laws or under the SVPA [be] barred."

We conclude, as did the PCR court, that such remedy is not available to defendant on PCR, which affords relief only from a judgment of conviction. SeeRules3:22-1 to -3. Defendant does not challenge his conviction or sentence, but rather the outcome of an independent civil proceeding. Moreover, while defendant may have reasonably believed that the plea agreement entailed no risk of civil commitment, the PCR court was unable to give him the benefit of that bargain, since it was never legally available to him in the first place. SeeIn re Commitment of P.C., 349 N.J. Super.569, 578 (App. Div. 2002) (holding that authority to seek civil commitment cannot be negotiated away by plea bargain).

Affirmed.


 

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