STATE OF NEW JERSEY v. CALVIN MCCLOUD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4234-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CALVIN MCCLOUD,

Defendant-Appellant.

________________________________

June 12, 2012

Submitted: May 2, 2012 - Decided:

Before Judges Axelrad and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 01-08-1652.

Joseph E. Krakora, Public Defender, attorney for appellant (Carolyn V. Bostic, Designated Counsel, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Richard E. McKelvey, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Calvin McCloud appeals from a September 28, 2010 order of the Law Division denying his petition for post-conviction relief (PCR) alleging ineffective assistance of trial counsel and requesting an evidentiary hearing. We affirm.

On or about August 30, 2001, defendant was indicted by an Atlantic County Grand Jury on second-degree sexual assault, N.J.S.A. 2C:14-2c (count one); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (count two); and third-degree terroristic threats, N.J.S.A. 2C:12-3b (count three). Following denial of a suppression motion, on September 9, 2002, after executing a plea form, defendant pled guilty to the first count and to fourth-degree failure to register as a sexual offender, N.J.S.A. 2C:7-2a, on another indictment.

Defendant appeared for sentencing on December 6, 2002, and was sentenced in accordance to his plea agreement to a nine-year custodial term with a five-year parole disqualifier as a repeat offender, N.J.S.A. 2C:14-6, for second-degree sexual assault, and a concurrent fifteen-month term for his failure to register as a sexual offender. The court imposed the appropriate fines and defendant was also subjected to parole supervision for life pursuant to Megan's Law, N.J.S.A. 2C:43-6.4, DNA testing, and registration. The remaining counts were dismissed.

On February 13, 2003, defendant filed a notice of appeal, which he voluntarily withdrew on May 18, 2003. We dismissed the appeal on May 28, 2003.

On September 13, 2007, the Department of Corrections issued a notice that the Attorney General's Office had determined defendant was civilly committable under the Sexually Violent Predator's Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and he was committed to the Adult Diagnostic and Treatment Center, Avenel on September l5, 2007, where he remains.

On or about June 6, 2008, defendant filed a pro se PCR petition, supplemented with a submission by counsel on October 9, 2009. Defendant claimed, in pertinent part: (1) the five-year time bar of Rule 3:22-12 should be relaxed because his filing of the PCR petition six months late was the result of excusable neglect and his sentence was illegal; (2) trial counsel was ineffective because he gave "incorrect legal advice regarding the amount of time [defendant] could actually remain either incarcerated or committed in an institution" and failed to correctly advise defendant he could be indefinitely committed to Avenel at the conclusion of his State sentence, despite the fact that he was not determined to be a repetitive and compulsive offender; (3) appellate counsel was ineffective in failing to argue the plea was not knowing and voluntary; and (4) defendant should be allowed to withdraw his guilty plea as it was not knowing and voluntary because he was not informed of the possibility of civil commitment at the conclusion of his sentence even if the Avenel evaluation determined he was not compulsive and repetitive.

Defendant certified he was not advised of a possible sentence of involuntary civil commitment and understood he would only be subject to treatment at Avenel if he were found to be a repetitive and compulsive offender. He further certified that in November 2007, he asked his appellate attorney to file an application for PCR, but was informed his attorney was leaving the Public Defender's Office and was instructed to fill out the PCR form himself. After defendant filed his application with the court, it was returned to him because it was improperly filled out. Defendant also claimed his trial attorney did not explain to him the meaning of question number eight on the plea form.

Following oral argument on April l and May 18, 2010, Judge Bernard DeLury, Jr. denied defendant's PCR petition, finding the petition was time-barred under Rule 3:22-12 as it was filed six months beyond the five-year deadline, and defendant could have raised the issue in his motion for reconsideration of sentence or on direct appeal. Substantively, the court found defendant did not receive ineffective assistance of counsel because he was fully aware of the possibility that he could be civilly committed and State v.Bellamy, 178 N.J. 127, 131 (2003), which held that defendants must be informed of the possibility of civil commitment prior to pleading guilty, did not apply retroactively to defendant's case. The court's ruling was memorialized in an order of September 28, 2010. This appeal ensued.

On appeal, defendant argues:

POINTI:

THE FIVE-YEAR LIMITATIONS PERIOD SET FORTH IN R. 3:22-12 SHOULD BE RELAXED DUE TO DEFENDANT'S EXCUSABLE NEGLECT AND TO AVOID INJUSTICE.

POINTII:

THE DEFENDANT'S GUILTY PLEA WAS NOT KNOWING AND VOLUNTARY UNDER R. 3:9-2 AND, THEREFORE, THE DEFENDANT SHOULD BE PERMITTED TO WITHDRAW THE GUILTY PLEA.

POINTIII:

THE PCR COURT ABUSED ITS DISCRETION BY FINDING THAT DEFENDANT'S TRIAL COUNSEL RENDERED EFFECTIVE ASSISTANCE OF TRIAL AND APPELLATE COUNSEL.

A. Defendant's Trial Counsel Was Ineffective For Failing To Advise The Defendant That He Faced Indefinite Civil Commitment After The Completion Of Defendant's Prison Sentence, Despite A Finding That He Was Not A Repetitive And Compulsive Sexual Offender.

B. Even If Bellamy Does Not Apply To Defendant's Case, Defendant's Trial Counsel Was Still Ineffective Because He Had A Duty To Advise Defendant Of The Possibility Of Civil Commitment Under Pre-Bellamy Law And A Plain Reading Of The SVPA (Not Raised Below).

C. Defendant's Trial Counsel Rendered Ineffective Assistance Of Counsel By Failing To Conduct An Investigation Of The Facts Of This Case And Available Defenses.

D. Defendant's Appellate Counsel Rendered Ineffective Assistance Of Counsel By Failing To Raise The Voluntariness Of The Defendant's Plea On Direct Appeal.

POINTIV:

ALL ISSUES RAISED IN DEFENDANT'S PRO SE BRIEF, IF ANY, MUST BE CONSIDERED IN SUPPORT OF THE INSTANT APPEAL.

Based on our review of the record and applicable law, we are not persuaded by any of defendant's arguments.

On post-conviction review, a defendant has the burden of proving his or her entitlement to collateral relief by a preponderance of the evidence. State v. Preciose, 129 N.J. 451, 459 (1992). Ineffectiveness of counsel is governed by a two-prong test. See Strickland v.Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984) (holding that in order to prevail on a claim of ineffective assistance of counsel, a defendant must meet the two-prong test of establishing both that: (1) counsel's performance was deficient and he or she made errors so serious 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 existed a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"); State v. Fritz, 105 N.J. 42, 58 (1987) (adopting the Strickland test in New Jersey). A defendant must establish a prima facie case, meaning a reasonable likelihood of succeeding on the merits, to obtain an evidentiary hearing. State v. Marshall, 148 N.J. 89, 158 (l997); Preciose, supra, 129 N.J. at 462-63.

Even assuming defendant's PCR petition was not procedurally time-barred or barred as able to have been raised on direct appeal, R. 3:22-4, it is without substantive merit. Defendant's argument that his guilty plea should be vacated is predicated on his assertion that, had he been informed of the possibility of civil commitment, he would not have pled guilty. His reliance on Bellamy for this point and for his claim of ineffective assistance of trial counsel is misplaced. In Bellamy, supra, the Court held that a convicted sex offender's susceptibility to civil commitment under the SVPA is a collateral consequence but, as a matter of fundamental fairness, a defendant must be informed thereof. 178 N.J. at 138. However, because Bellamy accorded its ruling pipeline retroactivity, namely "in this case and those cases pending in which the defendant has not yet exhausted all avenues of direct review[,]" it is only applicable to "cases pending direct review at the time of the rule's announcement." Id. at 142-43. See also Statev. J.K., 407 N.J. Super. 15, 18-20 (App. Div.), certif. denied, 200 N.J. 209 (2009). Because Bellamy provided for pipeline retroactivity only, its requirements do not apply to defendant's case. Defendant pled guilty more than a year before the decision was issued and his appeal was dismissed and was not pending when Bellamy was decided. We are satisfied trial counsel provided sufficient advice consistent with the prevailing law at the time.

Moreover, the record reflects that defendant's plea was entered knowingly, intelligently, and voluntarily. R. 3:9-2; Statev. Johnson, 182 N.J. 232, 236 (2005). Based on the plea form he signed and the plea colloquy, it is apparent defendant understood the nature of the charges and the consequences of the plea, specifically, the possibility that he could be committed to Avenel, either to serve his sentence, or upon completion of his sentence, which could ultimately lead to a confinement term of longer than nine years. See Johnson, supra, 182 N.J. at 236-37. We also note that during the plea colloquy defendant informed the court that before signing the plea forms he and his trial counsel reviewed them thoroughly and he understood everything "completely" and had no questions of the court, directly contradicting the allegation in defendant's certification that his attorney "filled out the plea form and had [him] sign it without even discussing or reviewing 'civil commitment.'"

Defendant's claims that trial counsel was ineffective because he failed to conduct an investigation of the facts of the case and the available defenses is similarly without merit. Defendant provided no evidence or certifications to support his version of the events, i.e., that his and the victim's intercourse was consensual, that it involved an exchange of money, or that the victim was addicted to drugs. See State v. Cummings, 321 N.J.Super. 154, 168 (App. Div.) (holding that a defendant "must offer something more than a bare allegation" to support a PCR application), certif. denied, 162 N.J. 199 (1999).

We also reject defendant's claim of ineffective assistance of appellate counsel. We note that defendant voluntarily withdrew his direct appeal.

As defendant failed to present a prima facie case of ineffective assistance of counsel under either Strickland/Fritz prong regarding the performance of trial or appellate counsel, he was not entitled to an evidentiary hearing or to withdraw his guilty plea.

A