STATE OF NEW JERSEY v. KENNETH WYNNE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3773-04T43773-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KENNETH WYNNE,

Defendant-Appellant.

 

Submitted November 1, 2006 - Decided November 20, 2006

Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, 97-02-0089-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On November 3, 1997, defendant Kenneth Wynne pleaded guilty to endangering the welfare of a child. He did not take a direct appeal from his conviction. In July 2001, he filed a petition for post-conviction relief. He now appeals from two Law Division orders denying that petition. After his appeal from the first order, dated July 12, 2002, we remanded to the Law Division for a plenary hearing. State v. Wynne, No. A-0215-02 (Oct. 14, 2003). Following that hearing, by order dated February 16, 2005, the Law Division again denied defendant's petition. We affirm.

Defendant argues that he is entitled to withdraw his guilty plea because counsel was ineffective. He asserts that he was never told before entering his plea that (1) 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; and (2) he was subject to lifetime parole supervision as part of his sentence for a Megan's Law offense. See N.J.S.A. 2C:43-6.4a.

We first address his claim that he is entitled to withdraw his guilty plea because he was not informed that he could be civilly committed pursuant to the SVPA. Prior to entering his guilty plea, defendant was not informed that the offense to which he was pleading guilty was a predicate offense for a civil commitment under the SVPA. In our prior decision, we concluded that defendant was not entitled to be advised of the potential SVPA commitment before entering a guilty plea because a civil commitment pursuant to the SVPA was a collateral consequence of a guilty plea. Subsequent to our decision, the New Jersey Supreme Court determined that although knowledge of a potential SVPA commitment was, in fact, collateral, as a matter of fundamental fairness a defendant pleading guilty to a predicate offense under the SVPA is entitled to be advised of his potential for commitment before entering a plea. State v. Bellamy, 178 N.J. 127, 131 (2003). The failure to provide a defendant with that information is a ground for a defendant to withdraw his guilty plea. Ibid.

Following our remand, defendant argued in the Law Division that under Bellamy, he was entitled to withdraw his guilty plea. In rejecting that argument, the Law Division judge found that Bellamy was not applicable to defendant because Bellamy was only applicable to cases pending direct review at the time Bellamy was decided on December 11, 2003. We agree.

In addressing Bellamy's retroactivity, the Court said:

While we do not know the exact number of defendants who pled guilty to a predicate offense without knowing the possible consequences under the Act and were later committed, we recognize that full retroactivity of this decision would have a disruptive effect on the administration of justice. The lack of data regarding the number and kinds of cases that would be affected by a rule of complete retroactivity and the impact that complete retroactivity would have on the administration of justice mandates that the new rule should apply only to cases pending direct review at the time of the rule's announcement.

[Id. at 142-43.]

At the time Bellamy was decided, defendant's case was not pending on direct review. In fact, defendant did not take a direct appeal from his conviction after he entered his guilty plea on November 3, 1997. Thus, we agree with the Law Division that Bellamy's requirement that a defendant be advised of the potential commitment under the SVPA when he enters a guilty plea does not apply to defendant.

Next, we turn to whether defendant should be entitled to withdraw his guilty plea based on his allegations that he was not advised of the consequences of community supervision for life. That argument too is without merit.

"A guilty plea may be accepted as part of a plea bargain when the court is assured that the defendant enters into the plea knowingly, intelligently and voluntarily." State v. Johnson, 182 N.J. 232, 236 (2005) (citing R. 3:9-2). The court may vacate a guilty plea after sentencing "only if withdrawal of the plea is necessary to correct a 'manifest injustice.'" Id. at 237 (quoting R. 3:21-1). For a guilty plea to be valid, a defendant must understand all of the material terms and consequences of his sentence. State v. Williams, 342 N.J. Super. 83, 89 (App. Div.), certif. denied, 170 N.J. 207 (2001). Community supervision for life imposed pursuant to N.J.S.A. 2C:43-6.4 is a material, penal consequence of a sentence. State v. Jamgochian, 363 N.J. Super. 220, 224 (App. Div. 2003). See ibid. Thus, for defendant's plea to have been valid, he must have been informed of his obligations under N.J.S.A. 2C:43-6.4.

If the reviewing court determines that a defendant was not so informed, that does not, however, end the inquiry. A defendant must show not only that he was misinformed of the terms of the plea agreement, or that the sentence violated his reasonable expectations, but also that he was prejudiced by enforcement of the plea agreement. State v. Howard, 110 N.J. 113, 123 (1988). In other words, "the plea will not be vacated if knowledge of the consequences would not have made any difference in the defendant's decision to plead." Ibid.

The trial judge here found, first, that defendant was fully informed of his obligations under the community supervision for life statute, and second, even if he had not been so informed, defendant would have still accepted the plea agreement. The record fully supports both conclusions.

At the plenary hearing following our remand, defendant's trial attorney testified. The judge accepted her testimony as credible. While the plea forms at the time of her representation did not have a provision as they do now that specifically references a defendant's obligations under the community supervision for life statute, she remembered discussing the issue with defendant. She testified that she explained to defendant, on more than one occasion, that he would be subject to community supervision for life; that if he committed no additional offenses for fifteen years he could ask the court to terminate supervision; and that if he violated his community supervision for life obligations, he would be committing a fourth-degree offense.

The court also pointed out that defendant, in a certification he completed on November 25, 2003, indicated that trial counsel did, in fact, discuss with him the conditions of community supervision for life. He was aware that he would have to report to a parole officer and that after fifteen years, assuming he had no new charges, he would be eligible for release from this obligation. We conclude, as did the trial judge, that defendant was aware of his obligations under the community supervision for life provision at the time he entered his guilty plea.

The trial judge also found, and we again agree, that even if defendant had not been so informed, he would have nevertheless accepted the plea agreement. As the Law Division judge noted, defendant did not appeal from his 1997 sentence, or from his resentencing in September 1999. He did not seek to withdraw his plea until after the State moved in March 2001 to have him civilly committed under the SVPA.

What is more significant, however, is that at the time he entered his plea, defendant was subject to multiple charges that could have resulted in a substantial sentence, rather than the four-year flat sentence imposed pursuant to the plea agreement. Defendant potentially faced an extended term. His trial attorney testified at the plenary hearing that defendant's primary concern was the length of time he would have to spend in prison; and the generous plea agreement limited that time. We agree with the trial court that knowledge of the consequences of community supervision for life made no difference in defendant's decision to plead guilty.

Affirmed.

 

From our October 14, 2003 opinion, we incorporate by reference the facts; the procedural history; and the law, as it applies to defendant's arguments on appeal.

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7

A-3773-04T4

RECORD IMPOUNDED

November 20, 2006