STATE OF NEW JERSEY v. GERARDO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4322-12T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GERARDO J. CARRASCO,

Defendant-Appellant.

___________________________

July 3, 2014

Submitted May 20, 2014 - Decided

Before Judges Reisner and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-06-0538.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Priscilla Gabela, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Gerardo J. Carrasco appeals from a January 28, 2013 order denying his petition for post-conviction relief (PCR). We affirm.

All of the relevant proceedings in this case took place before Judge Paul M. DePascale, who presided over the plea hearing, imposed sentence, and decided the PCR petition. To briefly summarize the history, in 2008, defendant was charged with third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Because of his prior convictions for sexual offenses, defendant was extended term eligible.1 On June 16, 2008, defendant entered into a plea agreement, whereby the State would waive the extended term and recommend a flat sentence of five years in prison. That term would be served concurrent to an eighteen-month sentence to be imposed on defendant for a second indictment, No. 700-4-08, to which he would also plead guilty; that indictment charged him with violating his existing term of community supervision for life (CSL) based on a prior sex-related conviction.

Defendant signed the plea agreement form, and signed various addenda to the form, including a notice that pleading guilty would subject him to CSL and, possibly, involuntary civil commitment. At the June 16, 2008 plea hearing, Judge DePascale questioned defendant at length concerning his understanding of the consequences of his guilty plea, including possible civil commitment, and parole supervision for life. Defendant admitted that as the result of a prior Megan's Law conviction, he was already subject to CSL. Defendant admitted violating his existing CSL by spending five nights at the home of a female friend without notifying his parole officer. On the child endangerment charge, he admitted that he attempted to seduce or "becom[e] intimate with" a twelve-year-old girl, under the pretext of interviewing her for a possible modeling or acting job.

At the sentencing on September 5, 2008, Judge DePascale found that defendant had a long history of similar offenses going back to the 1970's. The judge found that defendant was a repetitive and compulsive offender, N.J.S.A. 2C:47-1, as recommended after an examination at the Adult Diagnostic Treatment Center (ADTC). However, because defendant refused to accept sex offender therapy, the judge sentenced him to five years in a regular State prison, rather than to a term in the ADTC.

Defendant did not file a direct appeal. As he was about to be released from prison, the State sought to have him involuntarily civilly committed pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. Defendant filed a PCR petition, and also sought to withdraw his guilty plea under State v. Slater, 198 N.J. 145 (2009). In support of his petition, defendant submitted a certification dated January 26, 2012, attesting that he "was never advised that petitioner would be civilly committed after completing agreed . . . sentence by the state." Notably, defendant's certification did not attest that, had he known about the possibility of civil commitment he would have refused to plead guilty. Nor did he assert that he was innocent of the crime to which he pled guilty.

Defendant's assigned PCR counsel filed a fifty-one page brief on his behalf. The brief conceded that, with respect to the Slater claim, defendant was not making a colorable claim of innocence. Instead, relying on State v. Bellamy, 178 N.J. 127 (2003), the brief argued that neither defendant's trial attorney nor the plea forms defendant signed specifically advised him that his involuntary civil commitment could possibly last for his lifetime, and did not specifically list child endangerment as one of the grounds for civil commitment.

In an oral opinion placed on the record on January 28, 2013, Judge DePascale found that an evidentiary hearing was not required on the PCR petition or the Slater motion, because the record of defendant's plea "clearly rebuts his only factual assertion. The defendant was fully aware of the potential for involuntary commitment prior to the entry of the plea." As a result, the judge found that defendant could not satisfy "either the Strickland-DiFrisco test2 [for ineffective assistance of counsel] or State v. Slater."

On this appeal, defendant raises the following points of argument for our consideration:

POINT I: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL ARISING OUT OF COUNSEL'S FAILURE TO ADVISE HIM THAT HE FACE[D] THE POSSIBILITY OF INDEFINITE CIVIL COMMITMENT WITH THE POTENTIAL FOR A LIFETIME CIVIL COMMITMENT PURSUANT TO THE SEXUALLY VIOLENT PREDATOR ACT AS A RESULT OF HIS GUILTY PLEA TO ENDANGERING THE WELFARE OF A CHILD, ESPECIALLY IN LIGHT OF THE FAILURE OF THE TRIAL COURT AND THE GUILTY PLEA FORM TO SUFFICIENTLY INFORM HIM REGARDING THAT POSSIBILITY AS WELL.

A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL ARISING OUT OF THE ENTRY OF GUILTY PLEAS, EVIDENTIARY HEARINGS AND PETITIONS FOR POST CONVICTION RELIEF.

B. SINCE THE DEFENDANT WAS NEVER ADEQUATELY INFORMED BY TRIAL COUNSEL, THE TRIAL COURT OR THE GUILTY PLEA FORM ITSELF THAT HE FACED THE POSSIBILITY OF INDEFINITE CIVIL COMMITMENT WITH THE POTENTIAL FOR A LIFETIME CIVIL COMMITMENT PURSUANT TO THE SEXUALLY VIOLENT PREDATOR ACT AS A RESULT OF HIS GUILTY PLEA, THE TRIAL COURT ERRED IN DENYING THIS ASPECT OF THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION.

POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA PURSUANT TO STATE V. SLATER.

Having reviewed the record, we conclude that those contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add these comments.

The record amply supports Judge DePascale's finding that defendant was advised, and acknowledged on the record, that his guilty plea could result in his involuntary civil commitment. Hence there is no evidentiary basis on which to conclude that defendant's guilty plea was the product of inadequate legal representation or mis-advice. Moreover, defendant provided no legally competent evidence that, but for any alleged inadequate representation, he would not have pled guilty and would have insisted on going to trial. See DiFrisco, supra, 137 N.J. at 457. Defendant had multiple prior similar convictions, which made him eligible for an extended term -- in this case up to ten years in prison for a third-degree conviction. And he makes no colorable claim of innocence or other argument demonstrating that it would have been rational for him to reject the plea offer and insist on a trial. See State v. Nunez-Valdez, 200 N.J. 129, 139 (2009).

Consequently, defendant did not present a prima facie case of ineffective assistance and was not entitled to an evidentiary hearing on his PCR petition. See State v. Preciose, 129 N.J. 451, 462-63 (1992). We likewise find no unfairness or miscarriage of justice in Judge DePascale's denial of relief under Slater.

Affirmed.

1 The presentence report (PSR) reveals that defendant had six prior indictable convictions for sex-related offenses, including sexual assault, endangering the welfare of a child and attempting to lure or entice a minor. The PSR notes that all of the offenses involved young girls.

2 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. DiFrisco, 137 N.J. 434 (1994).