STATE OF NEW JERSEY v. JUAN J. COLON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1273-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN J. COLON,

Defendant-Appellant.

___________________________________________

May 23, 2016

Submitted May 9, 2016 Decided

Before Judges Sabatino and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 03-01-0086.

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

Jennifer Webb-McRae, Cumberland County Prosecutor, attorney for respondent (David M. Galemba, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without an evidentiary hearing. For the reasons that follow, we affirm.

I

In 2002, defendant was indicted on multiple counts of attempted murder, aggravated assault, and related weapons offenses. In a separate indictment he was charged with two counts of sexual assault, criminal sexual contact, and endangering the welfare of a child. In a third indictment he was charged with receiving stolen property and conspiracy to commit theft.

In 2003, defendant entered into a plea agreement that disposed of all of charges in the three indictments. Pursuant to that agreement, all charges would be dismissed if defendant pled guilty to two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree endangering the welfare of a child for engaging in sexual conduct that would impair or debauch the morals of the child, N.J.S.A. 2C:24-4(a)(1); and third-degree conspiracy to commit a theft, N.J.S.A. 2C:20-3.

After the court received a report from the Avenel Adult Diagnostic and Treatment Center, which concluded defendant's conduct was not characterized by a pattern of repetitive, compulsive behavior, see N.J.S.A. 2C:47-1, defendant was sentenced. In September 2003 the court imposed, in the aggregate, a six-year term of imprisonment, with an eighty-five percent period of parole ineligibility. He was also sentenced to a three-year period of parole supervision, community supervision for life, N.J.S.A. 2C:43-6.4, and, according to the sentencing court's oral decision, "Megan's Law supervision and registration." N.J.S.A. 2C:7-1 to 7-23. Defendant did not file a direct appeal from his convictions and sentence.

Because it is relevant to the issues on appeal, we address what transpired during the plea colloquy. Just before he pled guilty, defendant testified he got as far as the eleventh grade but had "trouble reading[,]" although with "writing I'm alright." He further testified he and his attorney went over all of the plea forms, including the form on which the plea agreement was set forth.

When the court asked defendant what the plea agreement was, he replied "Six years with 85 percent . . . That [means] I have to do five years, one month [or] around there." Defendant did not mention he would be subject to and the plea agreement form makes no reference to Megan's Law or community supervision for life. However, defendant did say that, with the assistance of his attorney, he completed a three-page form entitled "Additional Questions for Certain Sexual Offenses."

Through a series of questions, the court established defendant had answered "yes" to various questions on the form that asked whether defendant understood that: (1) he had to register with law enforcement and re-register every time he moved; (2) when he registered, there might be notification to, among others, the public at large of his presence in the community; and (3) that the court was going to impose a special sentence of community supervision for life in addition to any other sentence. The court also established defendant answered "no" to a question inquiring whether he understood he may have to register annually if determined his conduct was not characterized by a pattern of repetitive and compulsive behavior.1

The following exchange then took place between the court and defendant.

Q. Do you understand that [these questions] generally refer[ ] to [the] Megan's Law requirement[s]?

A. Yes.

Q. Did your attorney explain that form to you, sir?

A. About Megan's Law?

Q. Yes.

A. Yes.

Q. And you signed the form on Page 3; is that correct, is that your signature?

A. Yes.

Q. Do you have any questions about this form?

A. No, sir.

Q. And you said that you understand it; correct?

A. Yes, sir.

Q. And you understand that there's a lifetime requirement associated with it, potentially lifetime requirement associated with Megan's Law; do you understand that?

A. Yes.

Q. About reporting?

A. Yes.

Q. And your attorney explained that to you?

A. Yes.

Q. Community supervision for life?

A. Yes.

Q. All right. And you said that you don't have any questions about that form; is that correct, Mr. Colon?

A. Yes.

The court also questioned defendant about a supplemental form entitled "Questions For Certain Sexual Offenses Committed On Or After December 1, 1998." After eliciting that defendant had signed this form, the court asked the following questions

Q. Before you signed that form, did you review that form with your attorney?

A. Yes, sir.

Q. Do you have any questions about it?

A. No.

Q. Do you understand it?

A. Yes.

Q. Do you understand that you will be evaluated by Avenel to make the determination whether or not you have repetitive or compulsive behavior regarding sexual offenses, sexual behavior; do you understand that?

A. Yes. Yes.

. . . .

Q. And again, you signed that form and you don't have any questions; is that correct, Mr. Colon?

A. Yes, sir.

Defendant then gave the factual bases to his pleas, which were that he fired a gun in the direction of two people in order to frighten them, admitting he could have killed both; had sexual relations with a fourteen year-old girl who was more than four years younger than he; and located vehicles for others to steal. The court accepted the factual bases to his pleas and found he had pled guilty knowingly and voluntarily.

Before he was sentenced, defendant wrote a letter to the court requesting that he be permitted to withdraw his plea.2 The court forwarded the letter to defense counsel, who in turn sent a letter to defendant urging that he not withdraw his plea, for the following reasons.

The attorney pointed out to defendant that if he went to trial and lost on all charges, he would be facing a presumptive forty-one-year term of imprisonment. On the attempted murder and aggravated assault charges, the attorney noted there were witnesses who saw defendant shooting at the two victims and, even if defendant were acquitted of attempted murder, he was still vulnerable to being convicted of aggravated assault. The attorney opined that if found guilty of this latter charged, he would likely be sentenced to a term of fourteen years, with an approximate six-year period of parole ineligibility.

Defendant also had been charged with second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4), which provides that an actor is guilty of sexual assault if he commits an act of sexual penetration with a child who is at least thirteen but less than sixteen years of age and the actor is at least four years older than the victim. N.J.S.A. 2C:14-2c(4). At the time of the alleged offense, defendant was at least four years older than the victim. In his letter, the defense attorney reminded defendant he had confessed to having intercourse with the victim. As the attorney squarely noted, "that case can't be won." The attorney observed defendant would likely get a seven-year term of imprisonment on this particular charge, and would be subject to Megan's Law for life.

On the theft charges, the attorney noted defendant had admitted to "driving around with the people who actually took the cars and [you pointed] out where they might find cars they could take. That makes you guilty of conspiracy." The attorney did not volunteer an opinion of what sentence defendant might receive on the conspiracy charge.

The attorney also advised defendant that because the crimes were committed at different times to different victims, the sentences on some of the charges might be consecutive,3 and that the court had the authority to impose sentences that were harsher than the presumptive ones. In light of defendant's exposure to a far greater sentence if he went to trial than if he accepted the plea agreement where the sentence was capped at six years, the attorney urged defendant to not withdraw the plea. However, inexplicably, the attorney also stated in his letter that, under the plea agreement, defendant would not be subject to Megan's Law. The attorney stated

So, even though you might want a better deal, you need to consider what you are avoiding by taking this plea. You're avoiding being subject to Megan's law for the rest of your life. . . . Believe me when I tell you that I tried to get you the best deal I could and this was as low as they would go. And, as I said at the start, considering what your exposure is, this is a good deal you avoid Megan's Law completely and you avoid the risk of getting found guilty of attempted murder.

For reasons not disclosed in our record, defendant abandoned his quest to withdraw his plea. If and when the contents of his attorney's letter were imparted to him presumably by a third party because defendant claimed he had difficulty reading4 and whether anything in the letter induced defendant to refrain from withdrawing his plea is not known. When defendant was subsequently sentenced, the court stated in his presence he would be subject to Megan's Law and community supervision for life.

It is not clear when defendant completed his term of imprisonment, but on December 29, 2007, defendant signed a form acknowledging he understood that he was subject to community supervision for life. The form set forth the general conditions to which he was to adhere. Defendant does not now claim he was unaware of the contents of this form when he signed it back in 2007.

In 2011, defendant was charged with failing to adhere to the rules and regulations of community supervision for life, N.J.S.A. 2C:43-6.4(d). He was again charged with the same offense in February 2013. In August 2013, defendant, as a self-represented litigant, filed a petition for PCR. In that petition he claimed

I [am] filing a PCR on behalf of my sentence stating that with my plea I was and will not be subject to Megan's Law [and] CSL/PSL and thereof. I have included a letter from my lawyer . . . stating I will not be placed under any such laws. So please take into consideration this reasoning for my PCR so I may be completely removed from all laws listed above.

A brief was subsequently filed by counsel on defendant's behalf. We discern from the record defendant argued he would not have pled guilty had plea counsel told him he would be subject to Megan's Law or community supervision for life. We note defendant has not certified to any alleged facts.

Following oral argument, the PCR court denied defendant's petition without an evidentiary hearing by order dated September 22, 2014. The PCR court found defendant's petition was time-barred under Rule 3:22-12(a)(1). Although defendant claimed he did not know he was subject to the Megan's Law and community supervision for life until after he was charged in 2011, the PCR court found otherwise given the reference to these two provisions of his sentence during the plea and sentencing hearings, and when he signed the form in 2007 acknowledging his receipt of the conditions of community supervision for life.

The court also found that even if the PCR petition were not untimely, defendant failed to show counsel was ineffective. Specifically, the court found that even if plea counsel did not advise defendant he would be subject to community supervision for life and Megan's Law, defendant did not show there was a reasonable probability that, but for plea counsel's error, he would not have pled guilty but would have instead insisted on going to trial. See State v. Nu ez-Vald z, 200 N.J. 129, 139 (2009).

II

On appeal, defendant raises the following points for our consideration

POINT I DEFENDANT HAS ESTABLISHED A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL THAT DEMANDS AN EVIDENTIARY HEARING.

A. The Attorney's Written Misrepresentation Concerning the Penal Consequences of the Plea Agreement Falls Outside the Range of Professional Competence.

B. The Attorney's Misrepresentation Materially Affected Mr. Colon's Decision to Plead Guilty.

POINT II THE LOWER COURT ERRED BY NOT RELAXING THE FIVE YEAR TIME BAR PURSUANT TO RULE 3:22-12(A)(1).

Defendant also asserts in his brief that the plea court erred by failing to ensure during the plea colloquy defendant understood the consequences of his plea, warranting an evidentiary hearing. We decline to address this argument. First, this issue should have been raised on direct appeal. See Rule 3:22-3. Second, a judge's obligation to ascertain that a plea is entered with an understanding of the consequences of the plea, see Rule 3:9-2, is "distinct from the attorney's obligation to render effective assistance." State v. Blake, 444 N.J. Super. 285, 297 (App. Div. 2016). Third, the record indicates defendant did not raise this issue before the PCR court and, "[g]enerally, an appellate court will not consider issues, even constitutional ones, which were not raised below." State v. Galicia, 210 N.J. 364, 383 (2012). Fourth, the PCR court did not decide this issue and thus we will not decide this issue in the first instance. Ins. Co. of North Am. v. GEICO, 162 N.J. Super. 528, 537 (App. Div. 1978).

As for defendant's first argument point, the standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists 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, l04 S. Ct. at 2064, 80 L. Ed. 2d at 693.

However, the Strickland standard also applies to assertions of ineffective assistance of counsel when a defendant enters a guilty plea. State v. Gaitan, 209 N.J. 339, 350-51 (citing Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 369-70, 88 L. Ed. 2d 203, 209 (1985)). "In the specific context of showing prejudice after having entered a guilty plea, a defendant must prove 'that there is a reasonable probability that, but for counsel's errors, [he or she] would not have pled guilty and would have insisted on going to trial.'" Id. at 351 (quoting Nu ez-Vald z, 200 N.J. at 139).

We are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test. Even if the first prong were satisfied, defendant did not show - or even proffer any argument addressing the particular facts in this case that there was a reasonable probability he would have rejected the plea offer had he known the plea agreement included the requirement he be under community supervision for life and had to abide by Megan's Law. There is no evidence or plausible argument that, under these circumstances, he would have rejected the plea offer and have gone to trial in the face of these very serious charges, risking a far greater term of imprisonment and the imposition of community supervision for life and a judgment ordering he abide by Megan's Law, in any event.

Significantly, defendant does not at all refute plea counsel's opinions about the strength of the evidence against him. According to plea counsel, that a jury would convict defendant on the sexual assault charge was practically a certainty, for which there would be a presumptive term of imprisonment of seven years and he would still be subject to community supervision for life and ordered to abide by Megan's Law. There was eyewitness evidence defendant fired a gun at two people, for which there was no defense. The odds were very high that the State would convince a jury defendant was guilty of aggravated assault, if not attempted murder.

Therefore, it is highly implausible defendant would have rejected the plea offer even if he knew he would be subject to these life-long restrictions and restraints. Certainly defendant did not point to any evidence or put forth any argument addressing the evidence against him demonstrating there was a reasonable probability that, but for the error in plea counsel's letter stating he would not be subject to Megan's Law under the plea agreement, he would have chosen to proceed to trial instead.

Accordingly, the PCR court correctly concluded that an evidentiary hearing was not warranted. See State v. Preciose, 129 N.J. 452, 462-63 (1992). In light of our disposition, it is unnecessary to address defendant's remaining contention the PCR court erred when it found his petition time-barred.

Affirmed.

1 Defendant answered other questions but they are not material to the issues on appeal.

2 A copy of defendant's letter is not in our record.

3 The attorney was clearly making a reference to State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

4 The Adult Diagnostic and Treatment Center report from Avenel indicated he was illiterate.