STATE OF NEW JERSEY v. NASHEED WILLIAMS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4192-08T44192-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NASHEED WILLIAMS,

Defendant-Appellant.

________________________________________________________________

 

Submitted April 14, 2010 - Decided

Before Judges Fisher and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 99-02-0734.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark S. Carter, Designated Counsel, of counsel and on the brief).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Luanh L. Lloyd, Assistant Prosecutor, on the brief).

PER CURIAM

Nasheed Williams appeals from the denial of his petition for post-conviction relief, filed six years after he was sentenced. We affirm.

Pursuant to a plea agreement, defendant pled guilty to an amended charge, second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), on January 4, 2000. At the time of his guilty plea, defendant executed the supplemental plea form for certain sexual offenses, which asked the defendant to confirm his understanding that he would be subject to Megan's Law requirements of registration, address verification and notification as well as a mandatory special sentence of community supervision for life and DNA testing. In addition, the form advises the following regarding involuntary commitment:

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?

Defendant answered, "Yes[,]" to this and all other questions on the form. He was not, however, determined to be a repetitive and compulsive sex offender at this time.

Defendant was sentenced, consistent with the terms of the plea agreement, to a sentence of five years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, three years parole supervision upon release, community supervision for life and appropriate Megan's Law requirements, fines and penalties.

Defendant did not appeal from his conviction or sentence.

In October 2002, before defendant completed his custodial term, the Attorney General's office initiated civil commitment proceedings pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. Following a hearing, the court determined that the State had established the requisite criteria for commitment under the SVPA and judgment was entered in December 2002, ordering that he be civilly committed to the Special Treatment Unit. Defendant appealed from that judgment and we affirmed. In re the Civil Commitment of N.W., No. A-2333-02 (App. Div. June 2, 2004).

Defendant filed this petition for post-conviction relief on July 27, 2006, six years after he was sentenced. His claim for relief alleged that he "did not have the capacity to understand the ramifications of the plea bargain that he was entering into, nor was he apprised of the existence of the [SVPA] or the possibility of future civil commitment." The trial court denied the petition on the grounds that the claim of ineffective assistance of counsel was without merit; that the petition was time-barred by R. 3:22-12; and that State v. Bellamy, 178 N.J. 127 (2003) did not apply to this case. On appeal, defendant argues that his petition should have been granted because his claims "were of a constitutional nature and he demonstrated ineffective assistance of counsel."

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

The thrust of defendant's petition is a request to afford him relief based upon an extension of the holding in Bellamy, supra, which was decided three years after he was sentenced. In Bellamy, the Court concluded that "fundamental fairness requires that the trial court inform a defendant of the possible consequences under the [SVPA]" at the time of guilty plea. 178 N.J. at 138. However, the Supreme Court explicitly limited the application of its ruling to "those cases pending in which the defendant has not yet exhausted all avenues of direct review." Id. at 143 (emphasis added). Since defendant did not appeal his 2000 sentence, relief was not available to him pursuant to this ruling.

Defendant also argues that his counsel's failure to independently advise him of the possible consequences of the SVPA constitutes ineffective assistance of counsel. The standard for determining whether counsel's performance was ineffective for purposes of the Sixth Amendment was formulated in Strickland v. Washington, 466 U.S. 668, l 04 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by our Supreme Court in State v. Fritz, l 05 N.J. 42 (l987). In order to prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 687, 694, l04 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698.

The basis for the claim here is that counsel did not anticipate the need to inform defendant on the record of the possible consequences of the SVPA. Pursuant to the plea agreement, defendant pled guilty to an amended, second-degree offense and the State agreed to dismiss charges of first-degree kidnapping, first-degree attempted murder, first-degree aggravated sexual assault, second-degree aggravated assault, third-degree terroristic threats, and fourth degree possession of an imitation firearm for an unlawful purpose. This can fairly be characterized as a favorable plea agreement and we note that there is no certification from defendant in which he states that he would have declined to accept this plea offer and plead guilty if he had been advised of the potential consequences of the SVPA. Therefore, we are satisfied from our review of the record that defendant failed to make a prima facie showing of ineffectiveness of trial counsel within the Strickland-Fritz test and, therefore no evidentiary hearing was required on this issue. See State v. Preciose, 129 N.J. 451, 462-63 (1992).

In finding the petition time-barred, the PCR court observed that defendant was committed pursuant to the SVPA in 2002, and therefore, "knew that he was suffering the consequences of his plea" within the five-year period for the filing of petitions for post-conviction relief. In fact, his appeal from the judgment ordering his civil commitment was pending at the time that Bellamy was decided in 2003. If he had filed a petition after Bellamy or after his appeal was denied, that petition also would have been within the five-year period.

Rule 3:22-12(a) provides in pertinent part:

No . . . petition [for post conviction relief] shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

"The concept of excusable neglect encompasses more than simply providing a plausible explanation for a failure to file a timely PCR petition." State v. Norman, 405 N.J. Super. 149, 159 (App. Div. 2009). Rather, excusable neglect will be found only "'under exceptional circumstances' because '[a]s time passes, justice becomes more elusive and the necessity for preserving finality and certainty of judgments increases.'" State v. Goodwin, 173 N.J. 583, 594 (2002) (quoting State v. Afanador, 151 N.J. 41, 52 (1997)). To be entitled to a relaxation of the Rule based upon excusable neglect, the petitioner must "allege[] facts demonstrating that the delay was due to the defendant's excusable neglect" and, "[i]f the petitioner does not allege sufficient facts, the Rule bars the claim." State v. Mitchell, 126 N.J. 565, 576 (1992). We agree with the PCR court that defendant has failed to allege sufficient facts to demonstrate that his delay in filing this petition was due to excusable neglect.

 
Affirmed.

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A-4192-08T4

April 27, 2010