STATE OF NEW JERSEY v.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6127-03T46127-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DWAYNE ZIHLMAN,

Defendant-Appellant.

____________________________________________________________

 

Submitted December 14, 2005 - Decided

Before Judges Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Ind. No. 96-12-01276.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Mark S. Carter, Designated Counsel,

of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for

respondent (Jeanne Screen, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Defendant Dwayne Zihlman appeals from an order dated February 27, 2002, denying his petition for post-conviction relief (PCR). Defendant argues that his conviction must be reversed and his sentence vacated because "he was never advised fully of the penal consequences of his plea." We disagree and affirm.

In a three-count indictment, defendant was charged with committing the following offenses on diverse dates between July 1, 1995, and December 31, 1995: first-degree aggravated sexual assault upon T.L., who was less than thirteen years old, N.J.S.A. 2C:14-2(a) (count one); second-degree sexual assault upon T.L., who was less than thirteen years old, for the purpose of sexually arousing or gratifying himself and/or to humiliate or degrade T.L., N.J.S.A. 2C:14-2(b) (count two); and second-degree endangering the welfare of a child, T.L., by engaging in prohibited sexual conduct which would impair or debauch the morals of the child, while defendant had a legal duty or had assumed the responsibility of caring for the child, N.J.S.A. 2C:24-4(a) (count three). With respect to count three, the indictment incorrectly charged a violation of N.J.S.A. 2C:13-2, but defendant was undoubtedly charged with and pled guilty to second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4.

On June 17, 1997, pursuant to a negotiated plea agreement, defendant pled guilty to count three of the indictment. At the time of his plea, defendant was thirty-two years old and he was represented by counsel. Prior to the plea hearing, defendant signed the standard three-page plea form, and he also signed a two-page supplemental plea form entitled "Additional Questions for Certain Sexual Offenses."

Because defendant was entering a guilty plea to second-degree endangering the welfare of a child, T.L., by engaging in conduct which would impair or debauch the morals of the child, defendant was subject to the provisions of Megan's Law, requiring registration as a sex offender, N.J.S.A. 2C:7-2, and imposition of community supervision for life, N.J.S.A. 2C:43-6.4. The two-page supplemental plea form defendant signed addressed his Megan's Law obligations. Paragraph four of the supplemental plea form signed by defendant on June 17, 1997, reads as follows:

Do you understand that if you are pleading guilty to the crime of aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping pursuant to 2C:13-1(c)(2), endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child pursuant to 2C:24-4(a), luring, or an attempt to commit any such offense, the Court, in addition to any other sentence, will impose a special sentence of community supervision for life?

Defendant's response to this question was "yes."

At the plea hearing on June 17, 1997, defendant's testimony included the following:

BY THE COURT: . . . Mr. Zihlman, the Court has been advised you are pleading guilty to Count 3, which charges endangering the welfare of a child. Do you understand the nature of the charges?

A. Yes, I do.

. . . .

Q. You understand for your plea of guilty, however, the prosecutor has agreed to dismiss Counts 1 and 2, which are crimes of the first and second degree and has also agreed to recommend a five-year term to New Jersey State Prison consecutive to your sentence that you are presently serving. Is that your understanding of the plea agreement?

A. Yes.

. . . .

Q. Have you had enough time to review this matter with your lawyer?

A. Yes.

Q. Has he answered all of your questions?

A. Yes.

Q. Are you satisfied with his advice and representation?

A. Absolutely.

Q. Are you on any medication today?

A. No, sir.

Q. Have you taken anything, drugs or alcohol, recently?

A. No, sir.

Q. Are you able to think clearly and understand what is taking place in [c]ourt?

A. Yes.

Q. Mr. Zihlman, I'm going to hand over to you a three-page plea agreement. Look at those three pages. Tell me whether or not your initials or signature appear on each page?

A. Yes, they do.

Q. Did you sign those this morning?

A. Yes.

Q. Before signing, did you read each page?

A. Yes.

Q. How far did you go in school?

A. Three quarters of the way through 12th grade.

Q. Do you have any difficulty reading or understanding English?

A. No, sir.

Q. Did you review each page with your lawyer before signing?

A. Yes.

Q. I'm also going to hand over to you an additional two-page document. Because the nature of your offense involves endangering the welfare of a child, this plea will result in certain conditions being attached to what is commonly known as Meagan's Law. Has this been explained to you?

A. Yes.

Q. I hand over to you the two-page document. Does your signature appear on that as well?

A. Yes.

Q. Did you sign that this morning?

A. Yes, sir.

Q. Before signing, did you read each page?

A. Yes.

Q. As a result of pleading guilty to this particular offense, you have been advised you must register with certain public agencies. Do you understand that requirement?

A. Yes.

Q. Your failure to register can result in a fourth degree charge being filed against you. Do you understand that aspect of your plea?

A. Yes.

Q. Do you understand that there will be the requirement of registration that may also result in notification of the law enforcement and community organizations? Do you understand that, sir?

A. Yes.

. . . .

Q. Do you have any questions at all concerning the charges against you, your rights, your plea of guilty?

A. No, sir.

After defendant provided a factual basis for the entry of the guilty plea, the trial court found that defendant had knowingly, intelligently and voluntarily entered into the plea. "For a plea to be knowing, intelligent and voluntary, the defendant must understand the nature of the charge and the consequences of the plea." State v. Johnson, 182 N.J. 232, 236 (2005) (citing R. 3:9-2).

On August 1, 1997, defendant was sentenced, consistent with his plea agreement, to a five-year prison term consecutive to the term he was then serving, and counts one and two of the indictment were dismissed. The sentencing judge specifically advised defendant that he was subject to the provisions of Megan's Law including "[n]otification, registration, and community supervision for life."

In June 1999, defendant filed a "petition for a writ of mandamus for a presumption of innocence in the absence of guilt." This matter was scheduled to be heard by the trial court on September 17, 1999, but it was adjourned to October 29, 1999, to allow for defendant's representation by the Public Defender's Office. During oral argument on October 29, 1999, defendant's attorney expressed some confusion regarding the nature of defendant's application, and Judge Citta stated:

I think what he's trying to say is that he wants the judgment amended to reflect that he did not plead guilty to an offense of a sexual nature; therefore, Megan's Law does not apply, the constraints of Megan's Law does not apply, and he wants any reference to sexual involvement in the presentence report redacted or removed and an order entered that that was not his deal; that his deal was he entered a plea, in his opinion, to a nonsexual circumstance where he was not required to go to Avenel and he should not be sentence[d] in accordance with the parameters of Megan's Law and have those factors taken into consideration.

Is that right?

THE DEFENDANT: Yes.

The trial court ruled that defendant's application for PCR was barred because "[a]ll issues that are raised here, as a matter of fact and as a matter of law, could have been and should be more appropriately addressed by the Appellate Division." In addition, the court concluded that defendant, who had received the benefit of his plea bargain, was just trying "to get another bite at the apple." On February 17, 2000, the court entered an order denying defendant's "motion to amend judgment of conviction."

Defendant then filed a notice of appeal nunc pro tunc, appealing the judgment of conviction entered on August 1, 1997, and the order entered on February 17, 2000, denying his motion to amend the judgment of conviction. Defendant's appeal was assigned to the excessive sentencing oral argument calendar. On October 30, 2000, we determined that defendant's sentence was not manifestly excessive, and we also found that "the factual basis furnished at the time of the plea supported acceptance of a guilty plea to the endangering the welfare of a child charge." Therefore, we affirmed the judgment of the trial court.

On February 15, 2002, defendant's second PCR petition was also heard by Judge Citta. Defendant argued that his attorney never explained that "there was a difference between community supervision for life and Megan's Law." Judge Citta rejected this claim noting that it was clear from the supplemental plea form defendant signed and the colloquy at the plea hearing that defendant was fully informed of the Megan's Law consequences of his guilty plea, including the fact that he would be subject to community supervision for life. In addition, Judge Citta concluded that there was "absolutely no difference" between defendant's two PCR applications.

He pled guilty to the offense. He gave a factual basis. He was sentenced in accordance with the statute. The sentence was upheld by the Appellate Division. And he brings nothing new in this post-conviction relief, which is his second post-conviction relief before this Court, for this Court to consider and set aside any aspect of his sentence, conviction, or plea agreement.

On this appeal, defendant makes the following argument:

DEFENDANT'S CONVICTION MUST BE REVERSED AND HIS SENTENCE VACATED AS HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE FEDERAL AND STATE CONSTITUTIONS AS HE WAS NEVER ADVISED FULLY OF THE PENAL CONSEQUENCES OF HIS PLEA.

 
After considering the record and briefs, we conclude that defendant has failed to establish any valid reason for reversing his conviction or vacating his sentence, and his contentions are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by Judge Citta in his comprehensive oral opinion of February 15, 2002. It is clear from the colloquy at the plea hearing and the specific language of the supplemental plea form defendant signed that he was adequately informed of the consequences of his plea, including community supervision for life under Megan's Law. See State v. Williams, 342 N.J. Super. 83, 91 ("[T]he combination of the colloquy about the supplemental plea form and the clear language of the form constituted an adequate inquiry by the court to satisfy the requirements of Rule 3:9-2."), certif. denied, 170 N.J. 207 (2001).

Affirmed.

(continued)

(continued)

10

A-6127-03T4

RECORD IMPOUNDED

January 3, 2006