STATE OF NEW JERSEY v. CARLTON GREEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1826-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLTON GREEN,

Defendant-Appellant.

__________________________________

December 27, 2012

Submitted December 18, 2012 - Decided

Before Judges Harris and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-0530.

Joseph E. Krakora, Public Defender, attorney for appellant (Thomas G. Hand, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Raymond W. Hoffman, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

This matter returns following a remand1 for a plenary

hearing on defendant Carlton Green's petition for post-conviction relief. Green now appeals from the July 11, 2011 decision2 of the Law Division again denying the claim that he received ineffective assistance of counsel at the time he pled guilty. Because of our abiding concern about affirmative misinformation from counsel to a pleading client that undercuts a knowing and voluntary plea, Green is entitled to the remedy mandated in State v. Bellamy, 178 N.J. 127 (2003). We reverse.

I.

Green entered a guilty plea to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and in August 2005 was sentenced to three years incarceration, to be served at the Adult Diagnostic and Treatment Center (ADTC) at Avenel. Following the completion of that sentence, Green was civilly committed as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. In July 2007, Green filed the present application for post-conviction relief contending that plea counsel was ineffective for not advising him that he faced the possibility of civil commitment for life.

After the Law Division denied that application, Green appealed and we remanded for a plenary hearing. Based upon the limited record provided to us at that time, we concluded that the following question-and-response elicited at the plea allocution was insufficient to satisfy the mandate of Bellamy:

THE COURT: But if you were committed to the Adult Diagnostic and Treatment Center, then you might very well be kept there longer than the period that you had first become eligible for parole and even for the entirety of the sentence. And after the sentence there might you do run the risk that you would be committed civilly for additional time, indefinite time; do you understand that?

THE DEFENDANT: Yes, sir.

[Emphasis added.]

We held the following:

That last question and response is the only indication in the record before us of any consideration of the possibility that defendant faced the potential for further confinement as a sexually violent predator. It is, moreover, at least facially in conflict with the prosecutor's earlier representation that the State would not be seeking an extended term of confinement.

[Green, supra, slip op. 6.]

On the other hand, we "recognized that it is entirely possible that [Green] did have conversations with his attorney that involved the possibility of such a civil commitment. If that occurred, [Green] would, of course, be unable to establish that he received ineffective assistance from his trial attorney." Ibid. Also, we did not have "the papers [Green] filled out in conjunction with pleading guilty . . . and thus we [were] unable to determine whether they support or undermine [Green's] claim." Ibid.

On remand, the plea forms utilized by Green in 2005 were produced. Green and his plea counsel testified. Plea counsel recognized that in 2005, his obligation to Green was "[t]o let him know that following a . . . regular sentence or a sentence in Avenel, that he . . . could be civilly committed after that, after [that] sentence[]." Moreover, Green was entitled to know that "[he] could be civilly committed for life." It was conceded by plea counsel that there were mandatory questionnaires the plea forms that had to be read, answered, and signed by Green; that plea counsel was obliged to explain the plea process; and that the procedure could take some time, "[a]t least an hour."

Plea counsel admitted that he had no independent recollection about the duration of his interchange with Green. However, he recognized that it would "be more than an hour, customarily." Plea counsel could not recollect whether he discussed the matter with Green in jail, at counsel table in court, or at any other location. In fairness to plea counsel, given the passage of time, he testified that between 2005 and the time of the plenary hearing in 2011, he had probably "done . . . a thousand pleas." Nevertheless, although he had several weeks to prepare for the 2011 plenary hearing, plea counsel was unable to refresh his recollection about any specific details concerning his 2005 meeting with Green. Importantly, plea counsel acknowledged that he could not say that he had actually explained the possibility of civil commitment to Green, much less alert him to the possibility of life confinement.

At the plenary hearing, plea counsel was never asked whether he helped Green complete a specific plea form that actually included information about the possibility of an SVPA civil commitment. On cross-examination by the State, plea counsel stated that many written questions were answered by Green and that Green affixed his signature to some of the plea forms, but not to all of them. Green's signature was conspicuously absent from the one plea form that contained a Bellamy-compliant disclosure.

Green also testified. He claimed that the first time he met plea counsel was on the day of the plea bargain and allocution. He asserted that he and plea counsel filled out plea forms together, but it took them no more than ten minutes to complete the process. He stated that he never received an explanation for "the possibility of the position that [he was] in today, civil commitment" and was not advised of "the State vs. Bellamy obligation." Lastly, he believed that the maximum incarceration pursuant to the plea arrangement would be "three flat." Consequently, he emphatically asserted that "if [he] knew [he was] going to be locked up indefinitely, meaning like the rest of [his] life," he would have not pled guilty and would have gone to trial "[w]ithout a doubt."

On the other hand, Green conceded that he heard the plea judge "briefly talk[] about the possibility of a civil commitment on the record," but he did not know what that meant.

The Law Division reviewed the evidence and concluded that Green was not entitled to post-conviction relief on the basis of ineffective assistance of counsel. First, it found that plea counsel's performance was not deficient because it was "implausible" that he failed to inform Green of the possibility of indefinite civil commitment. This conclusion was made in reliance upon the view that "both [plea counsel] and [Green] acknowledged that all of the questions concerning the possibility of civil commitment were explained to [Green]," that "[Green] reviewed and answered the numerous questions on the plea form [] concerning the possibility of indefinite civil commitment," and that "[t]he plea form explained to [Green] each step of the civil commitment process."

Furthermore, the judge found that during the plea allocution "the court discussed in detail the possibility of indefinite civil commitment" as well as "the circumstances under which that might occur." Accordingly, he wrote, "[i]t is clear that [Green] was aware of the issue of civil commitment when the court discussed it with him, and that he was familiar with the fact that such a restriction might be imposed upon him."

The court also noted that Green failed to convince it that "the result of the proceeding would have been different, but for [plea counsel's supposed] unprofessional error." To reach this conclusion, the court found that Green had "simply asserted that he would not have pled guilty if counsel had advised him differently. He [did] not provide any supporting facts or reasoning to demonstrate that he would not have entered his plea had he known of the possibility of indefinite civil commitment."

Lastly, the PCR court determined, "based upon [Green's] testimony and demeanor at the [remand] hearing, it is evident that he did in fact understand the possibility of civil commitment but cannot at this time accept the reality that he has been determined to be a sexually violent predator." Accordingly, post-conviction relief was denied. This appeal followed.

II.

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate a reasonable likelihood of success under the so-called Strickland/Fritz3 test. State v. Preciose, 129 N.J. 451, 463-64 (1992). Under this two-part test, a defendant must first establish that counsel's performance was deficient by showing that "counsel's representation fell below an objective standard of reasonableness." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Secondly, a defendant must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Here, Green claims that plea counsel inexplicably failed to advise him of the SVPA implications of his plea as required by Bellamy. He also asserts that nothing in the record served as the functional equivalent of his entitlement to that proper advice. Lastly, he claims that had he been properly counseled, he would not have pled guilty and then proceeded to trial.

Bellamy sets forth the requirement that a defendant who pleads guilty to an offense that will subject him to civil commitment under the SVPA must participate in a process that includes, "prior to accepting a plea to a predicate offense under the [SVPA], the trial court [ensuring] that a defendant understands that, as a result of his or her plea, there is a possibility of future commitment and that such commitment may be for an indefinite period, up to and including lifetime commitment." Bellamy, supra, 178 N.J. at 139-40. In our first review of the present matter, we found that the attenuated colloquy between the plea court and Green at the allocution hearing was insufficient, by itself, to satisfy Bellamy's fundamental fairness requirement. Our task now is to determine if the plenary hearing on remand produced sufficient evidence to avoid invoking the remedy in Bellamy. Although the remand judge was satisfied that it had, we are not.

We generally defer to a trial judge's factual findings resulting from a plenary hearing when they are based on "adequate, substantial and credible evidence." State v. Harris, 181 N.J. 391, 415 (2004) (internal quotation marks omitted), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); see also State v. Locurto, 157 N.J. 463, 470-71 (1999) (recognizing the limited role of an appellate court in reviewing findings of fact and credibility determinations of a trial judge). When addressing issues of credibility, we recognize that a trial judge has the unique "opportunity to hear and see the witnesses and to have the 'feel' of the case." State v. Johnson, 42 N.J. 146, 161 (1964). For mixed questions of law and fact, we will uphold "the supported factual findings of the trial court, but review de novo the . . . application of any legal rules to such factual findings." Harris, supra, 181 N.J. at 416 (citation omitted); State v. Williams, 342 N.J. Super. 83, 92-93 (App. Div.), certif. denied, 170 N.J. 207 (2001). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interests of justice demand intervention and correction.'" State v. Elders, 192 N.J. 224, 244 (2007) (quoting Johnson, supra, 42 N.J. at 161-62).

As we have already noted, the remand judge determined that all of the questions concerning the possibility of civil commitment were explained to Green, that he reviewed and answered the numerous questions on the plea form concerning the possibility of indefinite civil commitment, and that the plea form explained to Green each step of the civil commitment process. Those findings enjoy no support in the record. Indeed, the opposite is correct.

The record is completely barren of any written plea forms that mention SVPA commitment. In fact, the last page of the appropriate plea form that would have disclosed the possibility of an SVPA commitment was never utilized by plea counsel and Green in 2005. There are no "numerous questions" about SVPA commitment on the plea forms, and the testimonial record belies any mention of civil commitment other than the stray comment of the judge who oversaw the plea allocution.

We acknowledge that the plea forms used in 2005 by Green contain many questions about treatment options, sentence enhancements, and parole issues that might have affected him at the ADTC. Those same questions, however, are not pertinent to a Bellamy-compliance analysis. Thus, aside from what we identified in the first appeal, there was no proof that plea counsel fulfilled his obligations under Bellamy.

We are also in disagreement with the remand judge's inferential finding that it was "implausible" that plea counsel did not inform Green of the SVPA's consequences prior to the plea allocution. We have no doubt that the judge could have made such a finding if it were based upon identifiable evidence in the record. If the remand judge had made his decision after assessing the credibility of the witnesses, we would probably defer to it. Here, however, no credibility assessments were explained. The most that can be said for the implausibility rationale is that it is based upon plea counsel's inability to recall discussions with Green. The absence of a corroborating plea form that contained SVPA disclosures renders the implausibility theory improbable.

In Bellamy, the Court reasoned that "when the consequence of a plea may be so severe that a defendant may be confined for the remainder of his or her life, fundamental fairness demands that the trial court inform defendant of that possible consequence." Bellamy, supra, 178 N.J. at 139. The Court further explained that "failure of either the court or defense counsel to inform defendant that a possible consequence of a plea to a predicate offense under the [SVPA] is future confinement for an indefinite period deprives that defendant of information needed to make a knowing and voluntary plea." Ibid. Accordingly, the Court issued a clear and precise mandate:

In the future, prior to accepting a plea to a predicate offense under the Act, the trial court should ensure that a defendant understands that, as a result of his or her plea, there is a possibility of future commitment and that such commitment may be for an indefinite period, up to and including lifetime commitment.

[Id. at 139-40.]

The remedy the Court provided for violation of that mandate is equally clear:

[T]he appropriate remedy is to remand to permit defendant to move to withdraw his plea. If the trial court is satisfied that defendant did not understand the consequences of his plea, it shall permit defendant to withdraw his plea "in the interest of justice to correct a manifest injustice," R. 3:21-1, and shall reinstate the charges.

[Id. at 140.]

Thus, the Court expressly directed the trial court to grant the motion to vacate on remand if the defendant did not understand the consequences. The Court did not direct the trial court to further determine whether the defendant made the additional showing generally required for such relief that if defendant had knowledge of a consequence that he lacked at the time of his plea, that knowledge would "have affected defendant's decision to plead." Id. at 135. In short, Bellamy's mandate and the simple showing the Court required to invoke its remedy rests on the Court's conclusion that the SVPA's potential for lifetime commitment is so significant that a plea made without knowledge of that potential is not, as a matter of law, voluntary or knowing and, accordingly, must be vacated as a matter of fundamental fairness. For that reason, no additional showing beyond a lack of knowledge is required, which was clearly provided through Green's uncontradicted testimony on remand.

Accordingly, we remand again. If Green still wishes to vacate his plea and proceed to trial on the initial charges, the judge shall enter an order granting that relief.

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

1 See State v. Green, No. A-1638-08 (App. Div. Aug. 2, 2010).

2 Neither Green nor the State supplied us with a copy of the final order denying post-conviction relief. However, we have the Law Division's six-page written opinion to that effect, which we will treat as a final order for purposes of this appeal. Cf. R. 2:6-1(a)(1)(C) (requiring appellant's appendix to include the order appealed from); see also State v. Bishop, 350 N.J. Super. 335, 345 (App. Div.) (recognizing that formality of documentation is required in criminal cases), certif. denied, 174 N.J. 192 (2002).

3 Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987).