STATE OF NEW JERSEY v. BHARAT MALDE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3038-07T43038-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BHARAT MALDE,

Defendant-Appellant.

___________________________

 

Submitted August 25, 2009 - Decided:

Before Judges Miniman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 98-07-3034.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, of counsel and on the briefs).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Bharat Malde appeals from the denial of his petition for post-conviction relief. On appeal, defendant raises the following contentions:

POINT I

IT WAS ERROR NOT TO ALLOW THE

DEFENDANT AN EVIDENTIARY HEARING

OR GRANT HIS APPLICATION FOR

POST-CONVICTION RELIEF

A

THE PETITIONER SHOULD BE

ALLOWED TO WITHDRAW HIS PLEA

B

AN EVIDENTIARY HEARING SHOULD

HAVE BEEN GRANTED

POINT II

PETITIONER WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL

A

THERE ARE NO PROCEDURAL BARS

B

THE TRIAL ATTORNEY FAILED TO FILE AN

AFFIRMATIVE DEFENSE AND FAILED TO INFORM

THE DEFENDANT OF THE CONSEQUENCES OF

HIS PLEA

(NOT RAISED BELOW)

C

POST-CONVICTION RELIEF COUNSEL

FAILED TO RAISE THE ISSUE

OF TRIAL COUNSEL'S FAILURE

TO FILE AN AFFIRMATIVE DEFENSE

AND TO INFORM DEFENDANT OF THE

CONSEQUENCES OF HIS PLEA

D

POST-CONVICTION RELIEF ATTORNEY

FAILED TO OBTAIN AFFIDAVITS OR

CERTIFICATIONS FROM WITNESSES; FAILED

TO RETAIN AN EXPERT WITNESS SO THAT

THE PCR COURT WOULD BE AWARE THAT

THERE WAS A PRIMA FACIE CLAIM; AND

FAILED TO MAKE AN EFFECTIVE ORAL ARGUMENT

We reject these contentions and affirm.

A grand jury indicted defendant on three counts of first-degree kidnapping, N.J.S.A. 2C:13-1b(1) (counts one, five and seven); two counts of third-degree terroristic threats, N.J.S.A. 2C:12-3b (counts two and four); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count three); two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (counts six and eight); and third-degree criminal restraint, N.J.S.A. 2C:13-2 (count nine). The charges stemmed from defendant's attacks on three women.

On February 25, 1999, defendant pled guilty to third-degree aggravated criminal sexual contact (count eight) and three amended counts of second-degree kidnapping (counts one, five and seven). At the plea hearing, the trial judge advised defendant that he was required to submit to an evaluation by the Adult Diagnostic Treatment Center in Avenel (Avenel), that he would serve his sentence at Avenel if the evaluation revealed a pattern of repetitive and compulsive behavior, that he could challenge Avenel's findings, that he was required to register with law enforcement or some similar agency, and that if he was incarcerated as a compulsive, repetitive sex offender he could be subject to involuntary civil commitment following the expiration of his sentence. Defendant did not acknowledge an understanding of the judge's statements.

In accordance with the plea agreement, on June 18, 1999, the judge sentenced defendant on count one to a six-year term of imprisonment with an eight-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; to concurrent six-year terms of imprisonment, subject to NERA, on counts five and seven; and to a concurrent five-year term of imprisonment, subject to NERA, on count eight. The judge also imposed the appropriate assessments and penalties. Based on the results of the Avenel evaluation, the judge ordered defendant to serve his sentence there. Defendant did not appeal his conviction or sentence.

The Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.35 became effective on August 12, 1999. On December 11, 2003, our Supreme Court decided State v. Bellamy, 178 N.J. 127 (2003). Bellamy requires disclosure of the possibility of future civil confinement for an indefinite period under the SVPA prior to the entry of a plea. Id. at 138-39. However, the rule had limited pipeline retroactivity. Id. at 143. It only applied to those cases that were active at the trial level or on direct appeal as of December 11, 2003. Ibid.

Upon application of the New Jersey Attorney General's Office, on July 30, 2004, defendant was civilly committed under the SVPA to the Special Treatment Unit for sexually violent predators. Over two years later, on August 16, 2006, defendant filed a PCR petition, contending that he should be allowed to withdraw his guilty plea or, alternatively, his conviction should be set aside, because neither the trial judge, nor his attorney, advised him of his exposure to indefinite civil commitment under the SVPA. He also claims ineffective assistance of counsel on the same grounds. Defendant also contended that the SVPA should not be retroactively applied to him.

Judge Ravin denied defendant's PCR petition without an evidentiary hearing, concluding that defendant was not entitled to withdraw his plea and that the conviction should stand because the SVPA was not in effect at the time of defendant's plea and sentencing, and because the limited retroactivity of Bellamy, supra, did not apply to defendant. The judge also concluded that application of the SVPA to defendant did not violate the constitutional prohibition against ex post facto laws. We agree with these conclusions.

A plea may be withdrawn after sentence upon a showing of manifest injustice. State v. Slater, 198 N.J. 145, 156 (2009); R. 3:21-1. The decision to allow withdrawal of a guilty plea is committed to the discretion of the trial judge. Slater, supra, 198 N.J. 156.

In exercising its discretion the court must weigh the policy considerations which favor the finality of judicial procedures against those which dictate that no man be deprived of his liberty except upon conviction after a fair trial or after the entry of a plea of guilty under circumstances showing that it was made truthfully, voluntarily and understandingly.

[State v. Herman, 47 N.J. 73, 76-77 (1966).]

Moreover, when a defendant seeks to withdraw a plea after sentencing, the trial judge weighs the State's interest in finality more heavily and applies a higher standard than to a similar motion before sentencing. State v. Johnson, 182 N.J. 232, 237 (2005); State v. McQuaid, 147 N.J. 464, 487 (1997). Applying these standards, we continue our analysis.

A trial court is not obliged to inform a defendant of all consequences that flow from a plea; however, the judge is required to ensure that the defendant is informed of all direct and penal consequences of the plea. Johnson, supra, 182 N.J. at 236. Thus, when a defendant was not informed of the enhanced parole ineligibility term feature of the No Early Release Act, N.J.S.A. 2C:43-7.2, applicable to the offense to which he was prepared to plead guilty, the Court held that the defendant was entitled to seek the vacation of his plea. Id. at 241.

Generally, a defendant is not entitled to information about the collateral consequences of his guilty plea. Bellamy, supra, 178 N.J. at 134; State v. Howard, 110 N.J. 113, 122 (1988). Nevertheless, in Bellamy, supra, the Court held that a defendant must be informed of the civil commitment possibilities of the SVPA prior to acceptance of a guilty plea to a sexual offense. 178 N.J. at 138-40. Although involuntary civil commitment under the SVPA is a civil remedy and a collateral consequence of a plea, the Court held that disclosure of the possibility of future confinement for an indefinite period was required to allow a defendant to enter a knowing and voluntary plea. Id. at 138-39. The Court directed that this rule should be afforded pipeline retroactivity. Id. at 143.

Here, defendant's argument that he should be allowed to vacate his plea fails for two reasons. First, the Bellamy rule applies only to those cases that were active at the trial level or on direct appeal at the time of rule announcement. Ibid. Defendant's case was not active at the trial level and he filed no direct appeal. Accordingly, defendant's case falls outside the limited relief afforded by the Bellamy retroactivity. Second, defendant's application to withdraw his plea is not founded on misinformation or no information of a known collateral or indirect consequence of his plea. The SVPA was not effective until August 1999, several months after defendant's plea. Defendant could not expect to be informed of a consequence of a plea not then existing.

For the same reasons, defendant's ineffective assistance of counsel argument fails. A defense attorney is required to provide accurate information about the penal consequences of a plea and must not misinform a defendant of the collateral consequences of a plea. State v. Garcia, 320 N.J. Super. 332, 339 (App. Div. 1999). However, a defense attorney is not required to advise a defendant of collateral consequences of a plea not then existing.

We reject defendant's contention that the retroactive application of the SVPA to his case represents a violation of the constitutional prohibition against ex post facto laws. The SVPA is a civil statute. The United State Supreme Court in Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997), reaffirmed that the ex post facto clause in the United State Constitution pertains solely to penal statutes. Id. at 370, 117 S. Ct. at 2086, 138 L. Ed. 2d at 5209 (citing California Dep't of Corrections v. Morales, 514 U.S. 499, 505, 115 S. Ct. 1597, 1601, 131 L. Ed. 2d 588, 594 (1995)). Because the Kansas SVPA was a "civil commitment scheme designed to protect the public from harm[,]" it did not trigger ex post facto issues. Id. at 361-62, 370-71, 117 S. Ct. 2082, 2086, 138 L. Ed. 2d at 515, 520-21. Moreover, it had no retroactive effect because the commitment determination was made based on the individual's current mental abnormality or personality disorder. Id. at 371, 117 S. Ct. at 2086, 138 L. Ed. 2d at 520. New Jersey has adopted the same principle articulated in Hendricks in rejecting ex post facto claims under the SVPA. See In re the Commitment of W.Z., 173 N.J. 109, 127 (2002) ("[o]ur SVPA is essentially the same as the Kansas statute examined in Hendricks"); In the Matter of the Civil Commitment of J.H.M., 367 N.J. Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

Defendant contends for the first time on appeal that counsel was also ineffective for failing to investigate an insanity defense. We will "decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959), certif. denied, 31 N.J. 554 (1960)); see also State v. Arthur, 184 N.J. 307, 327 (2005). Defendant's contention does not involve jurisdiction or concern a matter of great public interest.

Even if we considered defendant's contention, it lacks merit. A defendant seeking to vacate a conviction on grounds of ineffective assistance of counsel is not automatically entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 462 (1992) (citing R. 3:22-1). The trial court is not required to hold an evidentiary hearing unless the defendant presents a prima facie case supporting the application. Ibid.; State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). "[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance." State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999); see also State v. Rountree, 388 N.J. Super. 190, 206 (App. Div. 2006), certif. denied, 192 N.J. 66 (2007). When claiming trial counsel inadequately investigated his or her case, the petitioner "must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170 (citing R. 1:6-6). A defendant must demonstrate how a more thorough investigation or preparation for trial would have had the likelihood of changing the outcome of the trial.

From our review of the record, defendant has failed to meet his burden. He failed to provide any evidence or certifications demonstrating a viable insanity defense. To be sure, the record before us contains no information that defendant "was laboring under such a defect of reason from disease of the mind as not to know the nature and quality of the act, or if defendant did know it, that [he] did not know what [he] was doing was wrong." Model Jury Charge (Criminal) Insanity (N.J.S.A. 2C:4-1).

Lastly, defendant's contention that PCR counsel was ineffective for failing to submit affidavits or certifications is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add the following comments. Defendant fails to disclose the identity of alleged witnesses that PCR counsel should have contacted for affidavits or certifications. He also fails to indicate what, if any, information those individuals would have provided to support the issues raised in his PCR petition.

Affirmed.

(continued)

(continued)

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A-3038-07T4

September 4, 2009