STATE OF NEW JERSEY v. R.E

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4655-07T44655-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

R.E.,

Defendant-Appellant.

 
 

Submitted November 5, 2009 - Decided

Before Judges Sabatino and J.N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Accusation No. 06-01-0109.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant R.E. appeals from an order, dated February 22, 2008, denying his petition for post-conviction relief (PCR), which was filed on August 27, 2007. In this appeal, defendant advances three points for our consideration:

POINT I: THE PCR COURT SHOULD HAVE GRANTED THE DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF ON THE BASIS OF INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT I(A): DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO THE FAILURE OF ALL PRIOR COUNSEL TO RECOGNIZE THAT THE ACCUSATION FILED AGAINST THE DEFENDANT WAS DEFECTIVE IN THAT IT DID NOT CHARGE THE DEFENDANT WITH A CRIME. (NOT RAISED BELOW).

POINT II: DEFENDANT'S MOTION FOR POST-CONVICTION RELIEF SHOULD HAVE BEEN GRANTED, THE JUDGMENT SHOULD HAVE BEEN VACATED, AND THE NOT GUILTY PLEA SHOULD HAVE BEEN REINSTATED.

Distilled to their essence, these arguments raise two principal aspects of the proceedings below. First, defendant asserts that the accusation for which he gave a factual basis, was convicted upon, and received an agreed-upon sentence did not, in fact, actually charge him with a crime. We find this argument to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Second, he argues that his attorney failed to properly advise him as to the collateral consequences of the conviction insofar as it might affect his later tier classification pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -21. We believe that the proceedings below understandably failed to fully import the detailed analysis of State v. Slater, 198 N.J. 145 (2009) into the ineffective assistance of counsel calculus. Thus, we reverse and remand for further proceedings.

I.

Defendant's conviction and sentence arose out of alleged sexual contact with an adult, A.P. (also known as A.H), that occurred on December 3, 2005. Less than six weeks later, on January 11, 2006, defendant waived an indictment and entered a plea of guilty to a one-count accusation for fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). The totality of the factual basis given to support the plea was the following terse interchange:

Q. On the 3rd of December 2005, were you in Lindenwold?

A. Yes.

Q. And on that date did you have some kind of contact with [A.P.] and a person we now know to be [A.H.] (phonetic)?

A. Yes.

Q. And was that in the form of a sexual contact in which you touched some intimate part of his body for purpose of sexually gratifying yourself?

A. Yes.

The plea allocution hearing indicated that in exchange for defendant's guilty plea, the State would recommend a time-served sentence plus five years of non-custodial probationary supervision. Sentencing was deferred until February 17, 2006, and was heard by a different judge. Defendant was released on his own recognizance the day his plea was accepted.

Nine days before the scheduled sentencing, on February 8, 2006, defendant wrote a letter to the sentencing judge with copies to his attorney and others urging the judge to be lenient. Defendant also wrote:

NOTE: THE LAST TIME I'VE BEEN "CONVICTED" FOR A CHARGE WAS 20 YRS AGO[.] THIS CHARGE CAN "EFFECT" (sic) MY FUTURE AN[D] EXTEND MY TIME LONGER UNDER THE "MEGAN LAW" SIR THIS IS MY LAST YEAR I HAVE TO REGISTER BEFORE PUTTING IN TO "STOP" IF YOU DON'T SUSPEND THIS FOR (2 YRS) AND IF I[']M CHARGE FREE YOU DISMISS I WOULD HAVE TO REGISTER FOR (15 YRS) - UNDER THE MEGAN['S] LAW TERMS THIS IS (EXCESSIVE/PUNISHMENT) -

At the sentencing, the judge honored the plea agreement and imposed a five-year non-custodial probationary sentence. The sentencing judge was aware of defendant's correspondence, noting:

THE COURT: [H]e was concerned I think about his Megan's Law obligations and you heard me ask the question, but I don't think you're subject to Megan's Law anyhow, so that's not a concern right now. Does that make you feel better?

THE DEFENDANT: Yes.

THE COURT: I'm the Megan's Law Judge in any event. That's why I checked to see if you were subject to it and you're not.

[(Emphasis added.)]

Earlier in the sentencing proceeding, the following exchange between defendant's attorney, the prosecutor, and the judge occurred:

THE COURT: Mr. Harris has the pleasure of representing Mr. [R.E.] and Mr. Deitz is here on behalf of the State. This is a fourth degree criminal sexual contact. He took responsibility early on. I'm assuming by virtue of the lack of any note on the Judge's

MR. HARRIS: It's a non-Megan's Law.

MR. DEITZ: It didn't involve a minor victim. It was an adult victim, so therefore Megan's [Law] does not apply. The State moves for sentence in accordance with the plea agreement, five years noncustodial probation.

[(Emphasis added.)]

On May 24, 2006, defendant filed a notice of appeal that challenged only the extent of the sentence. We affirmed that sentence on January 11, 2007. A petition for certification was denied on June 1, 2007.

As it turns out, defendant had been convicted in the 1980s of kidnapping, and served a state prison sentence. As a result of that conviction, defendant had been classified under Megan's Law as a tier two/moderate risk offender. On December 6, 2006, just a few weeks before defendant's excessive sentence appeal was considered by this court, defendant was reclassified as a tier three/high risk offender because, as stated by the PCR judge:

He was reclassified, not as a result directly of this conviction, but indirectly as a result of this conviction, because as everyone knows under the [Registrant Risk Assessment Scale] RRAS, certain variables change as a result of other criminal activity or social antisocial type of activities, and he had been reclassified and, apparently, his tier classification had increased.

[(Emphasis added.)]

Defendant filed this PCR avowing, "[the] plea agreement did not include [an agreement] to raise tier-status from 2 to 3 tier, [and] cause me to wear bracel[e]t around leg and carr[y] 301b box for the rest of my life." An evidentiary hearing was conducted on February 22, 2008, where defendant was the only witness. He testified under oath that if he had been aware that his tier classification was going to change from tier two to tier three, "[u]nder no circumstances, I would [] have accepted a plea." He stated unequivocally that he had consulted with his defense attorney regarding his tier status as a result of the plea, and "I was told that it was not going to change and everything was going to remain the same and that's what I believed."

Moreover, notwithstanding his guilty plea and factual basis, defendant stated that he was "certainly not" guilty of the underlying offense. He explained that he entered a plea of guilty and gave a factual basis to support the plea because of his medical condition and desire to get out of jail as soon as possible through a self-recognizance and with a non-custodial probationary sentence. The PCR judge noted:

I know that he's now under oath and says that he wasn't guilty. He was under oath before, in front of Judge Brown, said he was guilty. Obviously, there's an inconsistency. [The] [c]ourt makes that finding.

The PCR judge denied defendant's application for relief. The judge relied upon his recollection of the sentencing proceeding as well as the testimony and documents presented during the PCR hearing. The judge was emphatic in rejecting defendant's credibility, finding that "he has, virtually, none":

[Y]ou can argue with me all you want, you have limited credibility, minimal credibility. You know the extent of your credibility is that your name is [R.E.]. That's the extent of your credibility, because you're so inconsistent.

The PCR judge assumed, for purposes of the proceeding, that defendant's attorney did not tell defendant about the Megan's law consequences of the plea, "I'm assuming that Mr. Harris didn't tell him." Nevertheless, the PCR judge found that defendant "knew or should have known" of the Megan's Law implications because of the February 8, 2006 letter that defendant sent to the sentencing judge requesting mercy. Accordingly, the PCR judge rejected defendant's claim of ineffective assistance of counsel.

II.

The paramount issues before us are whether defendant's defense counsel not only provided defendant with constitutionally deficient advice concerning the direct or indirect Megan's Law consequences that he faced if convicted pursuant to the plea bargain, but also whether he suffered prejudice even if he was misinformed. It is the second prong of this framework that suffers from an unfinished analysis, and which impels our order of remand.

The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution mutually guarantee an accused in a criminal prosecution the right to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687; 104 S. Ct. 2052, 2064; 80 L. Ed. 2d 674, 693 (1984) (holding that under Sixth Amendment, "the proper standard for attorney performance is that of reasonably effective assistance"); State v. Fritz, 105 N.J. 42, 58 (1987) (holding that under Article I, Paragraph 10, "a criminal defendant is entitled to the assistance of reasonably competent counsel").

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 Megan's Law. Rather, it is defendant's stance that he was misinformed as to the extent of his exposure to a tier reclassification by pleading guilty, which was unfortunately compounded by the court's statement at sentencing that "I don't think you're subject to Megan's Law anyhow, so that's not a concern right now." This statement, albeit accurate insofar as the immediate criminal sexual contact charge was concerned, would lead a person in defendant's circumstances to reasonably believe that the new conviction would have no impact whatsoever on his extant Megan's Law status. The absence of any comment by defendant's defense counsel, either to clarify the sentencing judge's statement on the record or to consult privately with defendant and advise him otherwise, reinforced the potential for misapprehension.

The fact that defendant had specific questions about Megan's Law as contained in his letter seeking lenity do not nullify the misunderstanding created by defense counsel's silence in not clarifying the sentencing judge's commentary. This misguidance was amplified when the sentencing judge authoritatively stated, "I'm the Megan's Law Judge [in this vicinage] in any event. That's why I checked to see if you were subject to it and you're not."

When we consider all of the circumstances surrounding the entry of defendant's plea, we are persuaded that irrespective of his questionable credibility, 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." Hill v. Lockhart, supra, 474 U.S. at 59, 106 S. Ct. at 369-70, 88 L. Ed. 2d at 208-09.

Our inquiry does not, however, end with defendant's satisfaction of the first prong of the Strickland test. In order to have a plea set aside on the basis of ineffective assistance of counsel, defendant must also demonstrate "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." Ibid. This is the materiality prong addressed most recently in Slater:

In assessing the nature and strength of the reasons for withdrawal, courts should not approach them with skepticism. At the same time, trial judges must act with "great care and realism" because defendants often have little to lose in challenging a guilty plea. Taylor, supra, 80 N.J. at 365. A court's

ruling may rest, of course, on its view of the defendant's demeanor and candor at both the plea proceeding and any later hearing on the withdrawal motion.

[Id. at 160.]

As to this prong, defendant maintains his innocence and is now allegedly prepared to go to trial. The PCR judge rightly questioned the credibility of defendant when he heard the assertion of innocence in the face of the guilty plea. Nevertheless, given the less-than-comprehensive factual basis three "yes" answers in total during the plea colloquy we are convinced that defendant is entitled to have the PCR judge reconsider his decision under the lens of Slater. By so ruling, we do not presuppose that the PCR judge will reach any particular decision. Rather, we expect that he will exercise principled discretion, taking into account the recent expression of the Supreme Court to employ "a flexible approach [that] will help ensure that justice is done in each case." Id. at 155.

Applications to withdraw guilty pleas are governed by Rule 3:21-1. Thus, "a plea may only be set aside in the exercise of the court's discretion," and if the motion is made after sentencing, the "defendant[] must show [his or her] conviction was manifestly unjust in appealing to the court's broad discretion." Id. at 156. To satisfy this burden, a "defendant[] must show more than a change of heart. A 'whimsical change of mind,' by the defendant or the prosecutor, is not an adequate basis to set aside a plea." Id. at 157 (quoting State v. Huntley, 129 N.J. Super. 13, 18 (App. Div.), certif. denied, 66 N.J. 312 (1974)). Plainly stated, a defendant must "present some plausible basis for his request, and his good faith in asserting a defense on the merits, so the trial judge is able to determine whether fundamental fairness requires a granting of the motion." State v. Luckey, 366 N.J. Super. 79, 86 (App. Div. 2004) (quoting Huntley, supra, 129 N.J. Super. at 17). Moreover, "defendants have a heavier burden in seeking to withdraw pleas entered as part of a plea bargain." Slater, supra, 198 N.J. at 160.

Defendant's negotiated plea called for the imposition of a non-custodial term. He testified that avoiding incarceration was a major consideration in his acceptance of the plea, a consequence we believe may still be of concern to defendant. Nonetheless, defendant may be entitled to vacate his plea and go to trial in an attempt to secure an acquittal, with its collateral effects, if any, on his Megan's Law tier classification.

Megan's Law was enacted "to aid law enforcement in apprehending sex offenders and to enable communities to protect themselves from such offenders." Doe v. Poritz, 142 N.J. 1, 25 (1995). Depending upon the degree of risk that the convicted sex offender will commit another offense, Megan's Law requires three different levels of notification to the community N.J.S.A. 2C:7-8(c). The Attorney General was charged with adopting guidelines for evaluating the risk of re-offense. N.J.S.A. 2C:7-8(d). The county prosecutor where the individual resides is to assess the risk of re-offense and assign a tier rating. Ibid. The offender may object to the assigned rating, at which point the court makes a determination as to the appropriate designation. Doe v. Poritz, supra, 142 N.J. at 30.

A Megan's Law registrant is assigned to one of the three tiers as determined by a weighing of factors, "low" risk (tier one), "moderate" risk (tier two), or "high" risk (tier three). N.J.S.A. 2C:7-8(c). The degree of community notification in each case is determined by the registrant's tier assignment. N.J.S.A. 2C:7-5 to -8. See Doe v. Poritz, supra, 142 N.J. at 21-22.

All judicial determinations regarding tier classification and scope of notification must be made by clear and convincing evidence. In re Registrant M.F., 169 N.J. 45, 50-51 (2001); In re J.W., 410 N.J. Super. 125, 130 (App. Div. 2009). Even in default cases, where there is no objection to the proposed rating, the judge's final determination shall contain express findings of fact based on the standard of clear and convincing evidence to support the judge's conclusion that the State either has or has not met its burden of persuasion as to tier classification. See Outline of Procedures for Megan's Law Cases, 12 (March 2009).

Given the significance to all concerned the defendant, the State, and the community of tier classifications, we cannot confidently say that defendant did or did not receive the effective assistance of counsel when he acceded to the plea agreement and fulfilled his part of the plea bargain. That the effect of that event was not felt until several months later, when defendant's tier classification was reviewed and increased, does not detract from our uneasiness with the truncated process that defendant received in January and February 2006. All we direct is that the PCR judge conduct a limited further hearing, with or without testimony in his discretion, to explore whether, in light of Slater and what we have determined regarding the performance of defendant's former counsel, defendant should be entitled to withdraw his guilty plea.

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

 

The PCR hearing in this case was conducted on February 22, 2008, more than eleven months before Slater was decided.

This information was known to the sentencing judge, defense attorney, and defendant at the time of defendant's sentencing.

One of the consequences of this tier change was that defendant was required to wear a global positioning system unit on his ankle and carry a separate monitor.

The same judge who sentenced defendant presided over the PCR proceeding.

We note the change of heart from his letter of February 8, 2006, which stated, "Your Honor, I [am] not asking you to [allow me to go to] trial in the case, but review the documents, then you decide have I been thr[ough] enough . . . over this alleged incident."

We offer no opinion as to the effect our immediate decision will have upon defendant's current tier classification. Nor do we comment upon the effect upon that classification in the event the PCR judge allows defendant to vacate the guilty plea. However, if the latter event occurs, we note that if the conviction for fourth-degree criminal sexual contact actually played a material role in that reclassification, it should be reconsidered promptly.

(continued)

(continued)

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A-4655-07T4

December 4, 2009