STATE OF NEW JERSEY v. THEODORE H. SPITALETTO, JR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 0533-07T40533-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THEODORE H. SPITALETTO, JR.,

Defendant-Appellant.

__________________________________

 

Argued August 5, 2008 - Decided

Before Judges Sapp-Peterson and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-04-0493.

Michael Confusione argued the cause for appellant (Hegge & Confusion, attorneys; Mr. Confusione, of counsel and on the brief).

Simon Louis Rosenbach, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Rosenbach, of counsel and on the brief).

PER CURIAM

Defendant appeals from the September 21, 2007 order of the Law Division denying his petition for post-conviction relief (PCR). We reverse.

Defendant's conviction and sentence arose out of defendant's sexual contact with A.K., a fourteen-year-old he initially met in an on-line "chat room," who told defendant she was eighteen. In April 2003, defendant was indicted for second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4) (Count One), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (Count Two).

Eight months after defendant's indictment and after discovery had been provided to defendant, the State extended a non-custodial plea offer to defendant that required defendant to plead guilty to the endangering count in exchange for the dismissal of the sexual assault count. Defense counsel was advised that the offer would remain open for one day. He discussed the offer with defendant that evening over the telephone. While defense counsel discussed the State's proofs against defendant, he did not discuss community supervision for life (CSL), N.J.S.A. 2C:43-6.4, what it meant or its implications.

The next day defendant met his attorney at the courthouse, where, after further discussion, defendant agreed to accept the plea offer. Defendant executed four forms prior to entering his plea: a three-page plea form; a two-page form captioned "ADDITIONAL QUESTIONS FOR CERTAIN SEXUAL OFFENSES"; another form entitled "ADDITIONAL QUESTIONS FOR CERTAIN SEXUAL OFFENSES COMMITTED ON OR AFTER DECEMBER 1, 1998; and a final, two-page form entitled "COMMUNITY SUPERVISION FOR LIFE." All of the forms were dated December 5, 2003. After executing these forms, defendant appeared before the court to enter his plea.

Under questioning by his attorney before the court, defendant acknowledged that he and defense counsel went over each page of the plea form and that defense counsel had asked him each question on the plea form. He acknowledged that he understood the nature of the charge, endangering the welfare of a child, to which he was pleading guilty. The court interjected a question to the prosecutor as to whether defendant's plea was "subject to Megan's Law and community supervision[.]" The prosecutor responded affirmatively and the court directed defense counsel to continue questioning defendant.

Defense counsel next questioned defendant regarding the "two[-]page form for additional questions for certain sexual offenses[.]" Defendant acknowledged that defense counsel read all of the questions on this form and went over the questions with him. Defense counsel then asked defendant about the form that contained additional questions for certain sexual offenses committed on or about December 1, 1998. Defendant acknowledged that defense counsel went over each of the questions with him. Finally, defense counsel questioned defendant about the "form for community supervision for life which the Court [had] just alluded to[.]" The following colloquy took place between defense counsel and defendant concerning the CSL form:

Q Then there's a form for community supervision for life which the Court just alluded to?

A Yes.

Q And it's a two[-]page form?

A Yeah.

Q And you signed your name on the second page of that form?

A Yes.

Q And you dated it?

A Yes.

Q And very specifically[,] you had a question of me about question number nineteen about whether your employer would be notified by virtue of the Parole Board supervising your probation?

A Yes.

Q And I don't have an answer for you. I don't know the answer to that question. Do you understand that?

A Yes.

Q You are still willing to plead guilty here today?

A Yes.

Q Even though you have a very specific question on this community supervision form and a very good question about whether your employer will ever be told about the fact of your conviction?

A Yes.

At the time of sentencing, the prosecutor requested that the court adopt the plea and sentence "this defendant to Megan's Law and community supervision for life as is required by the endangering." The court sentenced defendant in accordance with the plea agreement and reiterated to defendant that he "will be subject to Megan's Law and community supervision for life." The court went on to explain:

As to that, [defendant], with that, what that means is that at some point the prosecutor here will bring an application on notice to you, perhaps to [defense counsel] -- I mean, I really don't know whether his representation carries over to Megan's Law automatically. But when you get it give it to him and it will, in all likelihood, be before me because I do Megan's Law work in this county, and the application will seek to classify you in one of three ranges or one of three groups as to notification. Most of the classifications are or many of them are Tier 1 where the only entity that receives notice of your presence in the community is the local constabulary, but that is up to the Megan's Law Judge at the time and that's up to the State at the time. If you violate probation, general probation, you will find yourself subject to incarceration for up to five years because you pled guilty to a third-degree offense. That is the maximum, less one day jail credit, the day of your arrest[,] December 19, 2002.

More than one year later, defendant filed a petition for post-conviction relief, contending that his trial counsel misinformed him about the impact of CSL and that neither the court nor the plea forms ensured that defendant fully understood its real import.

The court conducted a hearing on the matter during which defendant and his probation officer testified. His probation officer explained that approximately two months prior to the end of defendant's probation, in accordance with the probation department's policy, she advised defendant that the responsibility for his supervision would be transferred to Parole. She further advised defendant "as to what community supervision for life was" and explained that "that would be his follow-up with supervision when he was through with me on regular probation." She described his reaction as shocked. He told her that he did not understand.

Defendant testified that during his telephone conversation with his attorney the evening before he pled guilty, he never had any discussion with defense counsel regarding CSL and what that actually meant. He acknowledged that his attorney told him he would receive "[p]robation, no jail time, [and would have to] re-register with the police [for] 15 years. And if I should change address, notify the police." Defendant explained that he decided to plead guilty "because it required no jail time." He acknowledged signing the "COMMUNITY SUPERVISION FOR LIFE" form but believed the form "was a generalized document, not specific to me. And it basically discusses parole. And I did not believe parole applied to me because I was not going to prison."

Further, defendant testified that his attorney never reviewed with him any of the conditions of CSL as set forth in the form and he first became aware that the conditions outlined in the form applied to him during a conversation with his probation officer. He indicated that at the time of his plea when he was asked whether he understood CSL, based upon the way his attorney explained it to him, he thought Megan's Law and CSL "was one in the same . . . to re-register once a year for fifteen years . . . ."

On cross-examination, defendant acknowledged that he held a bachelor's degree in accounting and a master's degree in finance. He also acknowledged that he understood what he was reading on the "COMMUNITY SUPERVISION FOR LIFE" form but reiterated that based upon his discussion with his attorney that he was being placed on probation, he did not believe the form applied to him. He continued to maintain this position despite also acknowledging that he had a specific question about Question 19 on the form, which addressed his obligation to notify his employer of his criminal record, an issue defense counsel brought to the court's attention at the time of the plea by specifically questioning the defendant about "whether [his] employer would be notified by virtue of the Parole Board supervising [his] probation." Defendant explained that because that statement included the word "probation[,]" "that's what [he] thought [defense counsel] was asking." He told the court that if he had known all of the restrictions on the CSL form applied to him, he would not have pled guilty, notwithstanding that he had been under similar restrictions while on probation. He stated that he was willing to accept the restrictions for purposes of probation because "it would be for a couple years, not for life."

On December 8, 2006, the PCR judge rendered an oral decision in which he found there was a sufficient "factual basis" and denied the motion. Thereafter, defendant's attorney filed a motion to reopen the matter to allow additional testimony, which the State did not oppose. The supplemental hearing was conducted on July 3, 2007, at which time defendant's former attorney appeared as a witness.

Defendant's attorney testified that he did not have any significant conversation with defendant about the CSL form and that he never read the form to him: "I told him that this form pertained to community supervision for life. He should take his time. He should read it to himself, and if he has any questions at the conclusion of it, I would do my best to answer." Beyond defendant's question about his employer being notified of his conviction, defense counsel did not have any other discussion with defendant about CSL or its import.

Trial counsel was asked whether defendant was advised that: (1) he would be on parole for at least fifteen years; (2) a parole officer would visit his home in uniform; (3) he would be prohibited from staying overnight at a relative's house without his parole officer's permission; (4) after his probationary period ended, he would be required to obtain his parole officer's permission before changing his employment; and (5) a parole officer would set terms and conditions of parole. Trial counsel answered "no."

The judge once again denied post-conviction relief. The judge stated:

I'm weighing the policy considerations which favor finality of judicial proceedings against those that dictate that no man be deprived of his liberty except upon conviction after a fair trial or after the entry of a guilty plea under circumstances showing that it was made truthfully, voluntarily and understandingly. And I'm not sure that he would not have pled guilty but for that misunderstanding, because seven years, as opposed to no years, plays into this picture. A plea is entitled to a higher degree of finality. [State v.] Smullen, 118 [N.J.] 408, [417 (1990),] and [State v.] Gonzalez, 254 [N.J.] Super. 300[, 303 (1992)].

I didn't hear enough to change my mind. My previous denial of the motion stands. Let the appellate courts tell me that the non[-]reading of the CSL form of [defendant] by [defense counsel] rose to the level of him not having an understanding of this bigger picture that was going on. Thank you.

The present appeal followed.

On appeal, defendant contends that because his trial counsel misinformed him about the consequences of CSL and the trial court did not ensure itself that he understood the consequences, the court erred in denying his motion for PCR. Defendant contends his conviction should be vacated.

We initially observe that the court reviewed defendant's PCR motion, citing principles for withdrawal of a guilty plea as articulated in State v. Smullen, 118 N.J. 408, 417 (1990) and State v. Luckey, 366 N.J. Super. 79, 87 (App. Div. 2004). These cases do not deal with whether trial counsel is ineffective for failing to explain the consequences of CSL.

A defendant's claim of ineffective assistance of counsel is considered under the standards enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which have been adopted by our Supreme Court in interpreting a defendant's right to counsel under our State Constitution. State v. Fritz, 105 N.J. 42, 58 (1987). In order to obtain relief based upon a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that counsel's deficient performance prejudiced his defense. Id. at 52 (quoting Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692).

The Strickland test has been applied to challenges to guilty pleas. State v. DiFrisco, 137 N.J. 434, 456 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). To have a guilty plea set aside on the basis of the ineffective assistance of counsel, a defendant must show that "counsel's assistance was not 'within the range of competence demanded of attorneys in criminal cases.'" Id. at 457 (quoting Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235, 243 (1973)). The defendant must also establish "'that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pled guilty and would have insisted on going to trial." Ibid. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203, 210 (1985)).

The issue here is not that defendant failed to understand that he was subject to CSL. Rather, it is defendant's position that he was misinformed as to the extent of what CSL meant and this was compounded by the court's statement at sentencing that defendant only needed two years of supervision, leading defendant to believe that the extent of his CSL was his annual registration requirement and that the CSL form he read, understood, and signed was not specific to him because of its reference to parole, a status he associated with "people who go to prison."

The fact that defendant had a specific question about the CSL form relating to whether the Parole Board would notify his employer of his conviction somewhat belies defendant's claim that he did not believe the CSL form applied to him. Nonetheless, trial counsel's acknowledgement that he did not review the form with defendant, the court's statement at sentencing that defendant only needed two years of supervision and the court's limited inquiry into defendant's understanding of CSL, were problematic here. See State v. Jamgochian, 363 N.J. Super. 220, 226-27 (App. Div. 2003) (holding the court must satisfy itself that a defendant understands the ramifications of CSL).

We note further that one of the last paragraphs on the CSL states, "I understand that I will be under the supervision of the Bureau of Parole of the Department of Corrections until I am released from community supervision by the Superior Court." Thus, the court's statement at sentencing that defendant only needed two years of supervision may have added to defendant's confusion and may account for his apparent shock, as described by his probation officer, when she explained the scope of CSL shortly before his probation was about to end. Finally, we also note that on the same date defendant was sentenced, he met with a probation officer who had defendant review the "STANDARD CONDITIONS OF ADULT PROBATION." Inexplicably, under the section labeled "SPECIAL CONDITIONS[,]" there is a box checked with the following language handwritten next to it: "Megans Law registration[,] Community Service for Life[,] DNA sample." (emphasis added). Defendant's sentence did not entail any lifetime community service obligation.

When we consider all of these circumstances surrounding the entry of defendant's plea, we are persuaded that irrespective of defendant's advanced education, defendant has demonstrated that defense counsel's representation in this regard did not fall "'within the range of competence demanded of attorneys in criminal cases.'" Id. at 59, 106 S. Ct. at 369-70, 88 L. Ed. 2d at 208-09 (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763, 773 (1970)).

Our inquiry does not, however, end with defendant's satisfaction of the first prong. Defendant, in order to have a plea set aside on the basis of ineffective assistance of counsel, must also establish "'prejudice . . . that there is a reasonable probability that, but for counsel's errors, defendant would not have pleaded guilty and would have insisted on going to trial.'" Hill v. Lockhart, supra, 474 U.S. at 59, 106 S. Ct. at 370, 88 L. Ed. 2d at 210.

As to this prong, defendant does not argue that he would have insisted on going to trial. Rather, he contends that he would have attempted to negotiate another agreement that would not have required CSL.

Defendant's negotiated plea called for the dismissal of a second-degree sexual assault charge, for which there is a presumption of incarceration, and the imposition of a non-custodial term. Defendant testified that avoiding incarceration was a major consideration in his acceptance of the plea, a consequence we are certain is still a major concern of defendant. Given his plea to the charge of endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of a child under the age of sixteen, no plea to such a charge could be accepted by the court without CSL. See N.J.S.A. 2C:43-6.4(a). Whether the State would have been inclined to extend a plea offer that did not include CSL, had defendant rejected the offer, is purely speculative. Nonetheless, defendant is entitled to attempt to negotiate such a plea or go to trial.

 
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

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A-0533-07T4

RECORD IMPOUNDED

October 30, 2008