STATE OF NEW JERSEY v. ISSAC BATTLE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0566-05T40566-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISSAC BATTLE,

Defendant-Appellant.

 

Submitted November 1, 2006 - Decided November 22, 2006

Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 97-01-0060-I.

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

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Karen Kazanchy, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Issac Battle appeals from the Law Division's July 28, 2005 order denying his petition for post-conviction relief (PCR). On appeal, he raises the following arguments:

POINT 1 THE COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST-CONVICTION RELIEF.

POINT 2 THE IMPOSITION OF THE CONDITIONS FOR COMMUNITY SUPERVISION FOR LIFE AND COMMITMENT UNDER THE SEXUALLY VIOLENT PREDATOR ACT MUST BE VACATED AS CONTRARY TO THE FEDERAL AND STATE EX POST FACTO AND DUE PROCESS CLAUSES.

We conclude that defendant's arguments are without merit and affirm.

In June 1997, a Hudson County Grand Jury indicted defendant on the following charges: aggravated sexual assault by committing an act of sexual penetration upon T.G., who was less than thirteen years old, N.J.S.A. 2C:14-2a (count one); sexual assault by committing an act of sexual contact on a child of less than thirteen years of age, defendant being at least four years older, N.J.S.A. 2C:14-2b (count two); criminal sexual contact by using physical force or coercion, N.J.S.A. 2C:14-3b (count three); endangering the welfare of a child, N.J.S.A. 2C:24-4a (count four); and child abuse, N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3 (count five). On July 9, 1998, defendant pleaded guilty to count one, first-degree aggravated sexual assault. In return for the guilty plea, the court would dismiss the remaining counts charged in the indictment. The plea called for a ten-year prison term if defendant qualified for admission to the Adult Diagnostic and Treatment Center at Avenel.

The judge determined that an Avenel sentence was appropriate, and on February 3, 1999, he imposed a ten-year prison term to be served at that facility. When the court imposed the sentence, defendant moved to withdraw his guilty plea. The judge denied that application. Defendant appealed from the sentence and on February 23, 2000, under Rule 2:9-11, we affirmed his sentence.

On December 8, 2004, more than five years after the sentencing date, defendant filed his PCR petition in the Law Division, in which he raised two issues. He claimed:

1. I am innocent. Police put a gun to my head and forced me to make a "confession."

2. Plea was broken. They are trying to now commit me under the SVP [Sexually Violent Predator] Law.

On July 28, 2005, the Law Division judge denied defendant's PCR application. It is from that determination that defendant now appeals.

As we understand defendant's arguments in the Law Division, he claimed he received ineffective assistance of trial and appellate counsel because (1) he was forced to enter his guilty plea even though he was innocent; and (2) he was not advised at the time he entered his guilty plea that he could be civilly committed pursuant to the provisions of the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, he raises a third issue, that counsel also failed to advise him of the community supervision for life provisions of a guilty plea to a Megan's Law offense. See N.J.S.A. 2C:43-6.4a.

To establish a prima facie case of ineffective assistance of counsel, a defendant must show that: (1) counsel's performance was deficient; and (2) a reasonable probability exists that, but for counsel's deficiency, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Great deference is given in evaluating counsel's performance. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. The second prong of the Strickland test requires that prejudice be proved, not presumed. Id. at 692-93, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696-97. If a defendant presents a prima facie claim, a trial court should grant an evidentiary hearing to resolve ineffective assistance of counsel claims. State v. Preciose, 129 N.J. 451, 462 (1992). To be entitled to that hearing, a defendant must demonstrate a reasonable likelihood of succeeding under the Strickland standard. Id. at 463.

A court may accept a guilty plea as part of a plea bargain where the plea was knowingly, intelligently and voluntarily entered. State v. Johnson, 182 N.J. 232, 236 (2005) (citing R. 3:9-2). For a guilty plea to be valid, a defendant must understand the nature of the charges and the consequences of the plea. State v. Williams, 342 N.J. Super. 83, 89 (App. Div.), certif. denied, 170 N.J. 207 (2001). To demonstrate that a guilty plea was not knowing and voluntary, a defendant must show that "his mistaken belief about the penal consequence to which he was exposed was a material factor in his decision to plead guilty." State v. McQuaid, 147 N.J. 464, 495 (1997). The court may vacate a guilty plea after sentencing "only if withdrawal of the plea is necessary to correct a 'manifest injustice.'" Johnson, supra, 182 N.J. at 237 (citing R. 3:21-1). A guilty plea will not be vacated, however, if "knowledge of the consequences would not have made any difference in a defendant's decision to plead." McQuaid, supra, 147 N.J. at 496 (citing State v. Howard, 110 N.J. 113, 123 (1988)).

Against this legal framework, we evaluate defendant's claims. Initially, we note that the PCR judge dismissed defendant's application on the grounds that it was filed out of time. We agree. Defendant was sentenced on February 3, 1999. He did not file his PCR application until December 8, 2004, more than five years later. Defendant was thus time-barred pursuant to Rule 3:22-12. Nevertheless, while defendant's PCR petition was properly dismissed on procedural grounds, we address his arguments on their merits.

We first turn to defendant's claim that "a gun was put to his head" and he did not enter his plea voluntarily. That argument is not supported by the record. Defendant entered his plea at a hearing on July 9, 1998. During that hearing, the proposed plea agreement was explained to defendant in detail. Defendant, fifty-two years old at the time, acknowledged that he committed an act of sexual penetration upon four-year-old T.G., by sticking his fingers in T.G.'s rectum. He acknowledged that he had an opportunity to discuss the case with his lawyer before entering his guilty plea, and he understood that by pleading guilty he was giving up his right to a trial. The judge explained to defendant that he would be subject to lifetime community supervision upon his release from state prison. The judge also explained that if defendant qualified for an Avenel sentence, he would be sentenced to that facility where he would serve a ten-year state prison term.

In his colloquy with defendant, the judge reviewed the plea form that defendant had completed. In that form, defendant acknowledged that if he was sentenced to the Adult Diagnostic and Treatment Center, he could spend more time in treatment than he would spend if sentenced to state prison. In the section concerning sexual offenses, defendant circled yes to the questions that asked if he understood that he would be required to register with law enforcement authorities, and, notably, that he would be subject to community supervision for life. The form specifically indicated that if he violated the special sentence of community supervision for life he could be charged with a fourth-degree crime. Defendant signed the plea form just below language that said that if he were incarcerated as a repetitive and impulsive sex offender, he could "be subject to involuntary commitment following the expiration of his sentence."

At his plea hearing, defendant told the judge that he had no questions concerning the plea form. It was not until after the court imposed the ten-year prison term at Avenel that defendant claimed he was innocent and sought to withdraw his plea. His argument that he pleaded guilty with a "gun to his head" is simply unsupported by the record.

We next address defendant's claim that he was not advised that he could be civilly committed pursuant to the SVPA after he served his prison term. Though the State has not, at this point, moved to have defendant civilly committed pursuant to the SVPA, we nevertheless address his argument at this time.

As noted, defendant entered his guilty plea on July 9, 1998. On December 11, 2003, the New Jersey Supreme Court held that a defendant who enters a guilty plea to a predicate offense to the SVPA is entitled to be informed, before entering the plea, of a potential civil commitment following the completion of the defendant's prison term. State v. Bellamy, 178 N.J. 127, 131 (2003). The decision in Bellamy, however, is not applicable to defendant because Bellamy is only applicable to cases pending direct review at the time it was decided. Id. at 142-43. Defendant's case was not pending direct review when Bellamy was decided; direct review ended when we affirmed defendant's sentence on February 23, 2000. Thus, counsel's failure to advise defendant of a potential civil commitment under the SVPA is not a ground to permit defendant to withdraw his guilty plea.

Next, we turn to defendant's claim that he was not advised of the community supervision for life requirements of a guilty plea to a Megan's Law violation. That argument is both procedurally and substantively without merit.

Procedurally, defendant did not raise that issue in the Law Division. Consequently, because the issue does not go to the jurisdiction of the trial court nor does it concern a matter of substantial public interest, we decline to consider it on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (appellate courts generally do not consider issues on appeal that were not brought to the trial judge's attention); Pressler, Current N.J. Court Rules, comment 2 on R. 2:6-2 (2007).

Substantively, the argument is also without merit. While community supervision for life imposed pursuant to N.J.S.A. 2C:43-6.4 is a penal consequence of a sentence, State v. Jamgochian, 363 N.J. Super. 220, 224 (App. Div. 2003), here, the judge specifically mentioned community supervision for life when he addressed defendant at the plea hearing. And notably, the plea form that defendant signed, and acknowledged to the sentencing judge that he had read and understood, details defendant's community supervision for life obligations. Cf. State v. Luckey, 366 N.J. Super. 79, 89-90 (App. Div. 2004) (completing plea form and acknowledging in court that he understood plea form may be sufficient to inform a defendant of community supervision for life obligations).

In his brief on appeal, defendant makes additional arguments, claiming certain laws are ex poste facto and he was denied due process. Those arguments are without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 
 

In the record on appeal, defendant's first name is also spelled Isaac. We have spelled defendant's name as it appears on the indictment.

T.G. was four years old.

(continued)

(continued)

10

A-0566-05T4

RECORD IMPOUNDED

November 22, 2006