STATE OF NEW JERSEY v. ROBERT A. KNIGHT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5707-05T45707-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT A. KNIGHT,

Defendant-Appellant.

___________________________________________

 

Submitted September 26, 2007 - Decided -

Before Judges Cuff and Simonelli.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 98-12-0869.

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

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Timothy M. Ellis, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Robert A. Knight, appeals from the March 7, 2006 order denying his petition for post-conviction relief (PCR). On this appeal, defendant raises the following argument:

POINT ONE

THE TRIAL COURT COMMITTED ERROR BY NOT GRANTING THE PETITIONER'S MOTION FOR POST CONVICTION RELIEF ON THE GROUNDS THAT HIS COUNSEL WAS INEFFECTIVE FOR NOT ADVISING HIM THAT HIS PLEA TO THE AGGRAVATED ASSAULT OFFENSE EXPOSED HIM TO BEING CIVILLY COMMITTED UNDER THE SEXUALLY VIOLENT PREDATOR ACT.

We affirm.

I

Defendant sexually assaulted a twelve-year-old girl. A grand jury indicted him on five counts of aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(1) (counts one through five); sexual assault, contrary to N.J.S.A. 2C:14-2b (count six); endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (count seven); contempt of a judicial order, contrary to N.J.S.A. 2C:29-9a (count eight); and tampering with a witness, contrary to N.J.S.A. 2C:28-5a(1)-(2) (count nine).

Defendant entered a retraxit plea of guilty to counts one and eight. In exchange for defendant's guilty plea, the State agreed to recommend a fifteen-year sentence in state prison on count one to run concurrent with an eighteen-month sentence on count eight, and dismiss the remaining counts and a contempt warrant.

With defendant present at the plea hearing before Judge Schlosser, the prosecutor stated defendant agreed to plead guilty to counts one and eight, had confessed to the sexual assault to authorities in Wisconsin where he was arrested, and there were numerous recordings of defendant admitting the crime. The prosecutor also stated:

Also part of this plea agreement, Judge, takes into consideration all aspects of Megan's Law [N.J.S.A. 2C:7-1 to -19] which [defendant] is subject to, those to include community supervision for life, DNA submission as well as community notification should a reviewing Court down the road determine that to be appropriate. He is also required to register as well as verify his address with authorities when he is released from New Jersey State Prison.

Defendant's counsel stated defendant understood he had to be evaluated by the Adult Diagnostic and Treatment Center at Avenel (Avenel). Counsel also stated he reviewed with defendant the plea form, the form concerning Avenel and the supplemental plea form for sex crimes, and defendant had initialed or executed them.

Judge Schlosser then reviewed the terms of the plea agreement with defendant and questioned him under oath about his understanding and voluntary waiver of his rights. Defendant acknowledged he had full opportunity to speak with his attorney, was satisfied with his attorney's legal advice, understood the questions on the plea forms, and signed each page of the plea form and supplement. Defendant also stated he understood this case was a Megan's Law case and he would have certain Megan's Law obligations.

In accordance with the plea agreement, defendant was evaluated at Avenel. Judge Friedman then conducted a Horne hearing on May 25, 2000, and found the State had not proven by a preponderance of the evidence defendant was compulsive and repetitive. As a result, the judge sentenced defendant in accordance with the plea agreement and ordered him to serve his sentence at New Jersey State Prison, not Avenel.

Defendant moved for reconsideration of his sentence to reduce it to ten years on count one. Judge Friedman denied the motion. Defendant then filed an appeal. State v. Knight, No. A-6530-99T4 (App. Div. March 19, 2001). We affirmed the sentence. Ibid. Defendant filed a petition for certification with the New Jersey Supreme Court, which was denied. State v. Knight, 170 N.J. 208 (2001).

On January 22, 2003, defendant filed a PCR motion. He raised the ineffective assistance of counsel issue only as to his sentence. He claimed his attorney failed to meet with him and properly address aggravating and mitigating factors and present evidence of alleged childhood traumas at sentencing. It was not until July 7, 2005, that defendant raised the ineffective assistance of counsel issue regarding his attorney's alleged failure to advise him his plea was likely to result in his civil commitment under the Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On October 21, 2005, Judge Thomas Smith denied the motion, finding:

Number one. That the relief granted in Bellamy [State v. Bellamy, 178 N.J. 127 (2003)] is not applicable to Mr. Knight because of, he is not within the pipeline of those cases as stated in Bellamy that are on direct review at the time of the decision in Bellamy; that's number one.

Issues concerning Mr. Knight's sentence and the amount of that sentence are procedurally barred because they were in fact reviewed by the Appellate Division, at the time it was called the Excessive Sentence Oral Argument Panel, and they rendered a decision and that decision was appealed when an application for certification was made to the New Jersey Supreme Court and that Court denied the cert.

So therefore, those, that issue surrounding the sentence is also barred, procedurally barred as being already reviewed by both the Appellate Division and the Supreme Court.

As to the issue of ineffective assistance of counsel, that is also tied to the failure to advise Mr. Knight of the consequences of the Sexually Violent Predators Act prior to his guilty plea. I've already addressed that. That was addressed in Bellamy and Bellamy through its limited retroactivity application would not apply to Mr. Knight.

. . . .

So, the Court does not need to reach the issues of Strickland vs. Washington, [ 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] in this particular matter because those issues have been addressed previously by this Court as both the aspects and the second that in fact they were dealt with at Bellamy.

So for all those reasons, Mr. Knight, the application, the motion, the petition for post conviction relief is denied.

II

On this appeal, defendant concedes that Judge Smith properly denied his PCR motion under Bellamy. He contends for the first time, however, that his claim of ineffective assistance of counsel should have been granted consistent with the holding in State v. Howard, 110 N.J. 113 (1988). We disagree.

In Howard, the Supreme Court held, prior to accepting a guilty plea, the trial court must inform a defendant of the possibility and parole consequences of an Avenel sentence. Howard, supra, 110 N.J. at 125. Here, defendant was not sentenced to Avenel, nor does he face the possibility of a sentence to Avenel. Rather, he was sentenced to state prison and faces the possibility of involuntary civil commitment under the SVPA. Bellamy, supra, 178 N.J. at 138. This distinction is important and is the reason the Court in Bellamy addressed the difference between an Avenel sentence and an involuntary commitment pursuant to the SVPA by specifically citing Howard and holding the same principles requiring the trial court to inform defendants of the potential consequences of their guilty pleas must be followed for civil commitment under the SVPA. Thus, Bellamy, not Howard, applies here. Because defendant's case did not fall under the retrospective application of Bellamy, defendant's counsel and the trial court were not required to advise him of the possibility of his civil commitment pursuant to the SVPA. Thus, there was no ineffective assistance of counsel.

Affirmed.

 

State v. Horne, 56 N.J. 372 (1970).

(continued)

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A-5707-05T4

RECORD IMPOUNDED

November 13, 2007