STATE OF NEW JERSEY v. JOSEPH J. DAMICO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5122-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH J. DAMICO,

Defendant-Appellant.

____________________________________

June 11, 2013

 

Submitted November 8, 2012 - Decided

 

Before Judges Nugent and Haas.

 

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 04-06-0348 and 04-06-0349.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).

 

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following the denial of his second petition for post-conviction relief (PCR), defendant Joseph J. Damico filed a motion for reconsideration, which the PCR judge denied. Defendant now appeals from the order denying his motion for reconsideration.1 He claims he would not have pled guilty to two offenses involving attempts to kidnap and lure children had his attorney represented him effectively by telling him he might be subject to civil commitment after serving his prison term; and that his first PCR counsel was ineffective for not raising that issue. Having considered defendant's arguments in light of the record and controlling law, we conclude he is entitled to a hearing on his claims. Accordingly, we reverse the order that denied his PCR petition without a hearing and remand for a hearing.

I.

According to the statements he made when he pled guilty, defendant twice tried to knock unconscious and abduct a young child. On October 10, 2003, defendant drove to a Wal-Mart and walked to the toy department, where he spotted a girl who appeared to be about five years old. Armed with a twelve-inch- long masonry chisel tucked in his waistband, defendant intended to knock the child out, drag her to his car, and take her home to raise as his sister. As he came within approximately four feet of the child, defendant said, "come here, come back." The child ran, and defendant ran from the store.

Approximately six months earlier, in April or May 2003, defendant had been in a supermarket for an hour when he spotted a girl who was approximately nine years old. Intending to knock the child out and abduct her, defendant walked toward her until he was approximately one foot away and threatened to knock her out with the chisel. The youngster began to cry and ran to her mother.

As a result of the incident in Wal-Mart, a grand jury charged defendant with first-degree attempted kidnapping, N.J.S.A. 2C:5-1 and 13-1 (first count), and five other offenses. In a second indictment, the grand jury charged defendant with attempted third-degree luring or enticing a child, N.J.S.A. 2C:5-1 and 13-6 (second count), and four other offenses, arising out of the incident that occurred in the supermarket; as well as six other offenses arising out of a separate incident when defendant allegedly tried to abduct from a department store the same child he had confronted in the supermarket.

Following the indictments, defendant agreed to plead guilty to second-degree attempted kidnapping on count one of the first indictment, and to third-degree attempted luring on count two of the second indictment. In exchange, the State agreed to dismiss all other charges in both indictments, recommend a maximum eight-year prison term on the first count of the first indictment, and recommend a concurrent five-year maximum prison term on the second count of the second indictment. Although the judge who accepted defendant's plea first questioned him to assure that he was knowingly and voluntarily entering into the plea agreement, the judge did not explain that defendant might be subject to civil commitment under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to 27.38.

Defendant refused to appear for his sentencing on March 18, 2005. After announcing that defense counsel and a court officer had confirmed defendant refused to come to court, the sentencing judge announced his intention to proceed, and commented that perhaps defense counsel could communicate the sentence to defendant, unless counsel had "an application to the contrary." Defense counsel responded that he did not "mind communicating the sentence, which will be confirmed by the [judgment of conviction] when the [c]ourt prepares that[.]"

During argument, the prosecutor quoted a medical report expressing concerns about defendant's non-compliance with his treatment regimen, and his impaired reality testing, paranoid preoccupation, mood liability, and history of sexual abuse. The doctor who wrote the report felt the risk is that he might engage in the type of behavior resulting in the present charges against him if he is not in a confined setting."

In response, the judge asked, "[g]iven [the] fact this comes under the community supervision for life, it does - - is this one of those cases where the defendant, there would be opportunity for evaluation when released to determine whether or not civil commitment is appropriate?" Replying to the court, the prosecutor twice stated, "I'm sure that's the case." The prosecutor then assured the court that she would "follow this, because I saw [defendant] in 1997, where I believe he got [pre-trial intervention], and now I have had . . . again in 2003." Thus, in defendant's absence, the court referred to the possibility of civilly committing defendant and the prosecutor confirmed not only that defendant's civil commitment was a possibility, but that she would "follow this." Nothing in the record suggests that anybody informed defendant the prosecutor would likely seek his civil commitment after he served his sentence.

The judge sentenced defendant on the first count of the first indictment to a prison term of seven and one-half years subject to an eighty-five percent period of parole ineligibility and five years parole supervision on release as required by the No Early Release Act, N.J.S.A. 2C:43-7.2. On the second count of the second indictment, the judge sentenced defendant to a concurrent four-year prison term. After imposing appropriate fines, penalties and assessments, the judge stated: "Defendant is subject to Megan's Law and community supervision for life."2 After the judge imposed the prison terms, he commented:

I also would highly recommend that [defendant] undergo an evaluation prior to his release on parole to ensure that he is not in need of commitment and intense psychiatric treatment and that if he is released that he receive the necessary treatment and supervision of his medication that would be necessary in order to avoid repetition of either of these offenses.

Defendant did not file a direct appeal. He filed his first PCR petition on October 23, 2007.3 On June 24, 2008, defendant's attorney withdrew the petition. In his letter to the court, counsel stated: "After reviewing the matter with my client, it has been decided to voluntarily withdraw the PCR petition, as stated on the enclosed form Order of Dismissal." The dismissal order, which the court signed the next day, stated that defendant's PCR petition is "dismissed with prejudice, having been voluntarily withdrawn by the decision of the defendant-petitioner."

According to his brief, defendant "completed his prison term but was civilly committed under the [SVPA]."4 Defendant filed his second PCR petition on June 29, 2010.5 On August 10, 2010, the second PCR judge denied defendant's petition. The order states:

[D]efendant's motion is denied because it is untimely, R. 3:22-12. Defendant filed this second application approximately two . . . years after the dismissal of the first petition for [PCR] based on ineffective assistance of counsel. Furthermore, regarding any alleged violations of [d]efendant's constitutional rights, it is;

 

Ordered that the defendant's motion is denied because his claims could have been raised in his first PCR application. R. 3:22-4. Additionally, the dismissal of defendant's first PCR petition with prejudice precludes the present application.6

 

Defendant filed a motion for reconsideration, which he supported with a certification from his first PCR counsel. In the certification, counsel said he erred when he prepared the order dismissing defendant's first PCR petition "with prejudice." Counsel explained it was not his "intention that [defendant] be precluded from renewing his PCR application if it was later discovered that he had grounds to do so."

The judge denied the motion in a February 22, 2011 order that stated:

[D]efendant's motion is denied because the petition is untimely per R. 3:22-12(a)(2)(C). Defendant filed this second application, and subsequent motion for reconsideration, approximately two . . . years after the dismissal of the first petition for [PCR] based on ineffective assistance of counsel.

 

Defendant appealed from this order.

 

Defendant raises the following points for our consideration:

I. THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND PCR COUNSEL DEPRIVED DAMICO OF HIS CONSTITUTIONAL RIGHTS AND RENDERED DAMICO'S PLEA ALLOCUTION AS FUNDAMENTALLY UNRELIABLE.

 

A. DAMICO WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

 

B. DAMICO WAS DEPRIVED THE ASSISTANCE OF EFFECTIVE TRIAL COUNSEL AND PCR COUNSEL BECAUSE BOTH COUNSEL FAILED TO ADDRESS DAMICO'S LACK OF UNDERSTANDING OF THE CONSEQUENCES OF HIS PLEA.

 

C. DAMICO WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF PCR COUNSEL.

 

D. THE COURT SHOULD SET ASIDE DAMICO'S PLEA OR REMAND THIS CASE FOR AN EVIDENTIARY HEARING CONCERNING WHETHER DAMICO RECEIVED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AND/OR PCR COUNSEL.

 

II. THE SECOND PCR COURT SHOULD HAVE CONDUCTED AN EVIDENTIARY HEARING TO ADDRESS ALL OF THE CLAIMS RAISED BY DAMICO.

 

II.

To prove ineffective assistance of counsel, a defendant must satisfy the Strickland two-part test by demonstrating "counsel's performance was deficient," that is, "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"; and "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); accord, State v. Fritz, 105 N.J. 42, 58 (1987). To set aside a guilty plea based on ineffective assistance of counsel, a defendant must establish under Strickland's second prong "'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)).

A PCR hearing is not mandatory. A defendant [is] entitled to an evidentiary hearing only upon the establishment of a prima facie case in support of [PCR], a determination by the court that there are material issues of disputed fact that cannot be resolved by reference to the existing record, and a determination that an evidentiary hearing is necessary to resolve the claims for relief.

 

[R. 3:22-10(b).]

 

To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the Strickland test. See State v. Preciose, 129 N.J. 451, 463 (1992).

Here, defendant argues that by not informing him that he could be civilly committed under the SVPA, trial counsel was ineffective. Defendant also argues that his first PCR attorney should have pursued that issue rather than withdraw the first PCR petition.

The State counters that defendant's trial counsel was not ineffective because defendant did not plead guilty to a predicate offense under the SVPA; the sentencing court made no findings that defendant's offenses were sexual in nature; and trial counsel could not have predicted in 2004 the interpretation of the SVPA made by appellate courts in 2007 and thereafter.

The SVPA provides for the involuntary commitment of any person who requires "continued involuntary commitment as a sexually violent predator[.]" N.J.S.A. 30:4-27.32(a). "The Attorney General may initiate a court proceeding for involuntarily commitment . . . of an inmate who is scheduled for release . . . ." N.J.S.A. 30:4-27.28(c). "If the court finds by clear and convincing evidence that the person needs continued involuntary commitment as a sexually violent predator, it shall issue an order authorizing the involuntary commitment . . . ." N.J.S.A. 30:4-27.32(a). Thus, "to trigger application of the provisions of the SVPA, a person must first be deemed a 'sexually violent predator.'" In re Commitment of J.M.B., 197 N.J. 563, 572 (2009) (quoting N.J.S.A. 30:4-27.27(a)).

The SVPA defines "sexually violent predator" as:

[A] person who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense, or has been charged with a sexually violent offense but found to be incompetent to stand trial, and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment.

 

[N.J.S.A. 30:4-27.26.]

 

The SVPA defines "sexually violent offense" as:

(a) aggravated sexual assault; sexual assault; aggravated criminal sexual contact; kidnapping pursuant to subparagraph (b) of paragraph (2) of subsection c. of N.J.S.A. 2C:13-1; criminal sexual contact; felony murder pursuant to paragraph (3) of N.J.S.A. 2C:11-3 if the underlying crime is sexual assault; an attempt to commit any of these enumerated offenses; or a criminal offense with substantially the same elements as any offense enumerated above, entered or imposed under the laws of the United States, this State or another state; or

 

(b) any offense for which the court makes a specific finding on the record that, based on the circumstances of the case, the person's offense should be considered a sexually violent offense.

 

[N.J.S.A. 30:4-27.26(a) and (b).]

 

The statutes require the SVPA judge to determine whether a defendant has been convicted of a sexually violent offense; that is, the SVPA judge must find that a defendant has been convicted either of one of the predicate offenses enumerated in N.J.S.A. 30:4-27.26(a), or of "any offense for which the court makes a specific finding on the record . . . the person's offense should be considered a sexually violent offense." N.J.S.A. 30:4-27.26(b). Because the SVPA court is required to make a determination as to a conviction that has already occurred, an attorney in 2004 might have reasonably concluded that the reference in section b to "the court mak[ing] a specific finding on the record" refers to the judge who accepted a guilty plea, not the SVPA judge. Such an interpretation was no longer reasonable after the Supreme Court held in J.M.B., supra, 197 N.J. 563, or after we held in In re Civil Commitment of J.P., 393 N.J. Super. 7, 17 (App. Div. 2007), that the SVPA judge can make that determination.

In the case before us, defendant entered his guilty pleas in 2004. Defendant did not plead guilty to an offense specifically designated in the SVPA as sexually violent, and the trial court did not make a specific finding on the record that either of defendant's offenses should be considered sexually violent. Trial counsel was not ineffective for failing to anticipate in 2004 that in 2007 an appellate court would hold that an SVPA judge could make the determination under N.J.S.A. 30:4-7.26(b). That does not, however, end our inquiry.

Defendant's sentencing occurred on March 18, 2005. More than a year earlier, the Supreme Court held in State v. Bellamy, 178 N.J. 127, 138 (2003), "that fundamental fairness requires that the trial court inform a defendant of the possible consequences under the [SVPA]." The court explained:

[W]hen 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. The 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.

 

[Id. at 139 (emphasis added).]

 

Considered in the context of the Supreme Court's holding in Bellamy, the prosecutor's statement to the court at defendant's sentencing that she would "follow" the case as to the possibility of future civil commitment, and defense counsel's statement that he would communicate the sentence to defendant; defendant's assertion that trial counsel did not inform him the State would likely seek his civil commitment raised a sufficient claim of ineffective assistance of counsel to entitle him to a hearing. The second PCR judge could not have determined from the record whether trial counsel informed defendant the State would seek his civil commitment, or whether counsel had a bona fide reason for not doing so. Nor could the judge have determined from the record why defendant's first PCR counsel dismissed the petition. For those reasons, defendant is entitled to a hearing where he will have the opportunity to present evidence for the trial court's evaluation as to whether his trial counsel and first PCR counsel were ineffective. Preciose, supra, 129 N.J. at 463-64. Our remand for a hearing should not be construed as somehow suggesting the hearing's outcome.

The second PCR judge denied defendant's motion for reconsideration as untimely. The order containing the judge's reasons did not, however, address defendant's claim that counsel never told him the State would seek his civil commitment when he became eligible for parole. If defendant were unaware until becoming eligible for parole that the State sought his civil commitment, he would not have been time-barred from raising the issue. See R. 3:22-12(a)(1) and (2)(b); R. 3:22-4(b)(2)(B) and (C). What defendant knew or did not know about his sentencing cannot be determined without an evidentiary hearing.7

Reversed and remanded. We do not retain jurisdiction.

1 Defendant states in his notice of appeal and his brief's procedural history section that he is appealing from the order that denied his motion for reconsideration. Yet, in a footnote to his point headings, he states that he "appeals all of the issues raised in this brief as well as those issues raised by [him] and his counsel in [his] PCR petition and [s]econd PCR [p]etition." Defendant has included neither his first PCR petition nor his second PCR petition in the appellate record. Nevertheless, the judge who denied defendant's second PCR petition did so on procedural grounds, not under a reconsideration standard, and the State has addressed the merits of defendant's arguments without addressing a reconsideration standard. For those reasons, we address the merits of the claims defendant raised in his motion for reconsideration.

2 The judgment of conviction is not part of the record.

3 As previously indicated, the PCR petition is not part of the record. Both the State and defendant, however, have represented in their briefs that defendant filed his first PCR petition on October 23, 2007.

4 Defendant has not included the civil-commitment petition in the record, nor has he provided the date on which the decision was filed or a transcript of the hearing resulting in his civil commitment.

5 The second petition is not part of the record, but both the State and defendant have represented that it was filed June 29, 2010.

6 The order is the only document in the record that contains the judge's reasons for denying the petition. In his brief, defendant represents that the PCR judge summarily denied the petition. The record contains no transcript of oral argument.

7 We recognize the defendant chose not to be present at sentencing. Nevertheless, his attorney represented to the court that he would inform defendant of the court's sentence.