STATE OF NEW JERSEY v. LEROY KNIGHT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5055-06T45055-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEROY KNIGHT,

Defendant-Appellant.

_______________________________

 

Submitted October 6, 2009 - Decided

Before Judges Carchman and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

95-08-0887.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Adam W. Toraya, Designated

Counsel, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor,

attorney for respondent (Steven E. Braun,

Special Deputy Attorney General, Acting Chief

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals an order denying his petition for post-conviction relief (PCR) under Rule 3:22. We affirm.

Defendant was charged in a twelve-count indictment with sexual offenses that occurred between 1991 and 1993. On September 26, 1995, he pleaded guilty pursuant to a plea agreement to one count of first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2a(1) and two counts of second-degree sexual assault in violation of N.J.S.A. 2C:14-2b. On January 29, 1996, defendant was sentenced in accordance with the plea agreement to twelve years in prison on the first-degree charge, with six years of parole ineligibility, and concurrent terms of ten years in prison with five years of parole ineligibility on each of the second-degree charges. These sentences were to run consecutively to a sentence for burglary that defendant was then serving, and the court ordered that defendant serve the sentences for the sexual offenses at the Adult Diagnostic and Treatment Center at Avenel. Defendant did not file a direct appeal.

More than ten years later, in June 2006, defendant filed a PCR petition alleging that neither the court nor his attorney had adequately informed him that he could be subject to civil commitment for an indefinite time after completing his criminal sentence under New Jersey's Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. That legislation was enacted in 1998, three years after defendant's guilty plea. Counsel was appointed to represent defendant for his PCR petition. The same judge who had accepted defendant's guilty plea and sentenced him heard the petition on April 5, 2007, and denied it without an evidentiary hearing by order of the same date.

In defendant's presence and on the record, the judge reviewed the transcript of defendant's guilty plea from 1995. At that time, both his own attorney and the judge had asked defendant detailed questions about his understanding of the nature of the charges against him and the potential penalties he faced, his constitutional rights to stand trial and to take advantage of the protections available to him in criminal proceedings, the terms of the plea agreement with the State, and the possible consequences of his guilty plea. Among those consequences were the potential that as a sexual offender defendant might be sentenced to serve his term of imprisonment at Avenel and that such a sentence might require a longer term of incarceration than at other prisons, the requirement under the law that his sentence include community supervision for life, the effects and requirements of Megan's law upon his conviction, and the possibility that upon completion of his criminal sentence defendant could be involuntarily committed indefinitely if he were found to be a danger to himself or others.

With respect to involuntary commitment, the following questioning of defendant occurred in the context of what his attorney had discussed with and explained to defendant before entry of his guilty plea:

Q (DEFENSE COUNSEL): Also it's possible, though you would certainly, I would assume, attempt to fight it, but it's possible that the State might move for an involuntary commitment if they felt you were still dangerous after your serving your sentence. Do you understand that?

A (DEFENDANT): Yes.

Q (THE COURT): And that would be an involuntary commitment to a mental hospital. That's what we mean by that. Do you understand that?

A: Yes.

Q (THE COURT): That is done if, after a hearing at which you would be represented by counsel, it was found that you were a danger to yourself or others. If you continue to be a danger to yourself or others, you could be involuntarily committed indefinitely to a mental hospital. Do you understand that?

A: Yes.

At the PCR hearing, the court also noted that the plea forms executed at the time of defendant's guilty plea made specific reference to the possibility of indefinite civil commitment after completion of the criminal sentence. Defendant had acknowledged his signature and understanding on a supplemental plea form captioned in bold letters "NOTICE/ACKNOWLEDGMENT OF 'MEGAN'S LAW' APPLICATION ADDITIONAL QUESTIONS FOR CERTAIN SEXUAL OFFENSES." Question 6 of the form, with the subheading "Involuntary Commitment," asked:

Do you understand that if you are incarcerated as a repetitive and compulsive sex offender you may be subject to involuntary commitment following the expiration of your sentence?

Circled next to the question was the answer "yes."

After finding that defendant was entering his plea knowingly and voluntarily, the judge accepted the guilty plea.

On appeal, defendant raises two points:

POINT I DEFENDANT WAS DENIED HIS RIGHT TO FUNDAMENTAL

FAIRNESS IN THE CONVICTION PROCEEDINGS BECAUSE

HE WAS NOT ADVISED OF THE SERIOUS AND LIFELONG

CONSEQUENCES OF THE SEXUALLY VIOLENT PREDATOR'S

ACT AND THE SPECIFIC POSSIBILITY THAT HE COULD

BE INCARCERATED FOR LIFE.

POINT II THE COURT ABUSED ITS DISCRETION BY DENYING

DEFENDANT AN EVIDENTIARY HEARING TO ESTABLISH

THAT HE WAS DENIED THE EFFECTIVE ASSISTANCE

OF COUNSEL CONSTITUTIONALLY GUARANTEED TO HIM

AT TRIAL, BY THE U.S. CONST., AMENDS. VI, XIV;

N.J. CONST. ART. I, PAR. 10.

Neither point has merit.

In State v. Bellamy, 178 N.J. 127, 143 (2003), the Supreme Court required that defendants be advised of the consequences of the Sexually Violent Predator Act but also determined that the requirement would only be applicable to guilty pleas entered in the future and to those pending sentencing or appeal at the time of that decision. In this case, defendant pleaded guilty three years before enactment of the Sexually Violent Predator Act and had no appeal pending when Bellamy was decided. The requirement of Bellamy is not applicable to his conviction.

In addition, defendant was fully advised at his plea hearing that he could be subject to indefinite civil commitment after serving his sentence, though not with reference to the Sexually Violent Predator Act, which did not exist at that time.

Concerning defendant's second point, in State v. J.K., 407 N.J. Super. 15, 21 (App. Div.), certif. denied, 200 N.J. 209 (2009), we rejected an argument that defense counsel provided ineffective assistance because he did not warn his client of the possibility of future enactment of a statute such as the Sexually Violent Predator Act. Defendant's arguments do not have sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

(continued)

(continued)

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A-5055-06T4

October 20, 2009